|
|
|
 |
Where am I now? Lawlink > Administrative Decisions Tribunal of NSW > Practice and Procedures > Practice Notes > Practice Note Number 30
<< Back to Practice Notes index
ADMINISTRATIVE DECISIONS TRIBUNAL RETAIL LEASES DIVISION: GUIDELINE 1. Purpose 1.1 This Guideline outlines the procedures that apply to the Tribunal’s management of retail tenancy claims and unconscionable conduct claims commenced under the Retail Leases Act 1994 (RL Act). 1.2 There is a separate guideline that relates to the appointment of a specialist retail valuer. 1.3 The Tribunal aims to assist parties to settle their disputes without the need for a formal hearing. 2. Relevant legislation 2.1 The relevant provisions of the RL Act are contained in Parts 7A and 8 (s62A to s77C). Proceedings are also regulated by the Administrative Decisions Tribunal Act 1997 (ADT Act) and the Administrative Decisions Tribunal Rules 1998. 3. The Tribunal’s jurisdiction 3.1 The Tribunal can determine a claim arising out of a lease if the lease is a ‘retail shop lease’ as defined in the RL Act in s3 (see in particular the provisions defining ‘lessee’, ‘lessor’, ‘retail shop’ and ‘retail shop lease’), s5, s6, s6A and s84B, and Schedule 1. 3.2 Parties to Tribunal proceedings under the RL must be (or have been) parties to, or guarantors or covenantors under, a retail shop lease or former lease (s63). There are limited exceptions for proceedings involving specialist retail valuers (s19 (3) and s19A (3)). 4. Retail tenancy claims 4.1 Retail tenancy claims are defined in s70 of the RL Act. They include claims such as:
a lessee’s claim for damages for misrepresentation or for relief against forfeiture or a claim for a declaration as to the rights, obligations or liabilities of a lessor or a lessee. 5. Remedies/Outcomes 5.1 The range of remedies the Tribunal may grant in a retail tenancy claim are very broad (s72). They include orders for the payment of money by way of debt or damages, orders (in the nature of injunctions) that a party is to grant or surrender possession of premises, or do or refrain from doing some other specified act, and declarations as to the rights of the parties. 6. Unconscionable conduct claims 6.1 An applicant may claim the respondent has engaged in conduct that is ‘unconscionable’ according to the definition set out in s62B of the RL Act. 6.2 The conduct must have been in connection with a retail shop lease. Both the applicant and the respondent must be, or have been, involved in the lease as a lessor, lessee, guarantor or covenantor. It is not enough to prove that the respondent acted in a manner that was or appeared to be ‘unfair’. 6.3 The behaviour in question must be ‘highly unethical’ and deserving of disapproval for that reason. S62B contains a list of matters to which the Tribunal ‘may’ have regard in deciding whether the conduct proved was ‘unconscionable’. 6.4 Under s72AA of the RL Act, the Tribunal may order:
that a specified amount of money is not due or owing by a party that a party is not entitled to a refund of money paid to another party. 7. Special provisions relating to proceedings involving unconscionable conduct claims 7.1 A special procedure authorises the Tribunal to transfer proceedings under s76A of the RL Act to the Supreme Court. This applies when the proceedings comprise or include an unconscionable conduct claim, but not in other circumstances. 8. Commencing proceedings in the Tribunal 8.1 Claims under the RL Act are commenced by filing an Application for Original Decision and paying the prescribed filing fee. The registry gives the proceedings a file number, which parties must quote on all documents filed. The applicant must serve a sealed (stamped) copy of the Application(s) on the respondent. The registry will send the parties a letter advising them of the time and date for the directions hearing. 8.2 Applicants are required to indicate in their Application whether they are filing:
(b) an unconscionable conduct claim only, or (c) a ‘combined’ claim: that is, a case incorporating both a retail tenancy claim and an unconscionable conduct claim. 8.3 Unconscionable conduct claims and combined claims have a higher filing fee than retail tenancy claims. The application must include particulars of the alleged conduct of the respondent that the applicant considers is unconscionable conduct. The Tribunal may decide, before the main hearing of the case, that the unconscionable conduct claim should be dismissed. In these circumstances, if the proceedings were commenced as a ‘combined’ claim, only the retail tenancy claim will be determined at the hearing. 8.4 A respondent to an Application for Original Decision who wishes to institute a cross claim against the applicant may file a separate Application for Original Decision and pay the prescribed fee. The two Applications will be managed jointly. Neither the RL Act nor the ADT Act establishes a separate category of applications for counter or cross claims. 9. Interim orders 9.1 Sections 72(1)(g) and 72AA(4) of the RL Act authorise the Tribunal to make interim orders pending final determination of a claim. Applicants who wish to obtain an order must file an Application for an Urgent Interim Order together with their Application for Original Decision and the prescribed fee. 9.2 When an Application for an Urgent Interim Order has been filed, the registry will allocate a date and time and notify the parties of the hearing. The listing will usually be in the next available Retail Leases Division directions list which are held weekly. 9.3 Before a hearing takes place the parties are to attempt to resolve the Urgent Interim Order by mutual agreement. If the matter cannot be resolved informally the Tribunal will determine the Application. 10. The statutory requirement of mediation 10.1 Section 68 of the RL Act states that a claim cannot go ahead in the Tribunal unless:
(b) the Tribunal is satisfied that mediation is unlikely to resolve it. 10.2 The two exceptions to this rule are:
(b) an Application for an Urgent Interim Order which can be heard and determined even though the requirements of s68 have not been satisfied. 10.3 Unless one of these exceptions applies, parties must attempt to settle their dispute by mediation before any Application is filed in the Tribunal. 10.4 At the first directions hearing, the Tribunal Member will check if the requirements of s68 have been satisfied. If they have not been satisfied the parties will be directed to attend the Retail Tenancy Unit to make arrangements for mediation of their dispute. 10.5 The matter will not proceed further in the Tribunal until mediation has been attempted. If it is unsuccessful, the Registrar of Retail Tenancy Unit will provide the parties with a certificate to this effect. 11. Preparing the case for hearing 11.1 Parties will be directed to file (lodge with registry) and serve (give to the other party) written evidence in the form of affidavits, statements and/or other documents prior to hearing. 11.2 At the directions hearing the Tribunal Member will:
(b) fix a date to determine any preliminary issues such as a claim by the respondent that the Tribunal has no jurisdiction to hear the Application, or an application by a party for transfer of proceedings involving an unconscionable conduct claim to the Supreme Court. (c) fix a date for the hearing of the substantive Application. 11.4 A matter will generally be listed for hearing about 6 to 8 weeks after the directions date. Urgent matters may be given an earlier date. 12. Costs 12.1 The general rule is that each party pays his or her own costs. However, one party may be ordered to pay another party’s costs in certain circumstances. For more information, refer to the Costs Guideline. Issued: 11 August 2011 |
|||||||||
|
