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Retail leases

Consumer and Commercial Division 

A retail lease is an agreement between a landlord and a tenant for the use of a commercial premises to operate a retail shop.  NCAT deals with retail tenancy claims and unconscionable conduct claims under the Retail Leases Act 1994.

A retail tenancy claim includes disputes about the payment of money, claims for repairs, amendments to a lease and a number of other claims.

An unconscionable conduct claim is where you consider that the other party has caused you financial loss during a retail lease transaction by highly unethical conduct such as relying unfairly on greater bargaining power, using unfair tactics, unreasonably failing to tell you things, or acting in bad faith in some other way.

Dispute resolution process

Step 1: Attempt ​​​medi​​ation

Parties may be required to attempt mediation with the Office of the NSW Small Business Commissioner before applying to NCAT.  Exceptions are applications for urgent inte​​​rim orders or the appointment of a specialist retail valuer. ​

If mediation is attempted and unsuccessful, you will receive a certificate from the NSW Small Business ​Commissioner under section 68 of the Retail Leases Act 1994.  You must attach this certificate to your application to NCAT.

Step 2: Apply to ​NCAT

To apply to NCAT you need to complete an application form.
 

   Download​​ the Retail Leases Application for Original Decision [PDF, 134kB]

You must attach the certificate issued by the Office of the NSW Small Business Co​​mmissioner.  

Retail lease applications are listed for a directions hearing within 4 weeks.  NCAT will send you and the other party a notice of hearing with the date, time and location at which the matter will be heard. 

Urgent ap​​plications

If you require an urgent hearing (for example, you have been locked out by your landlord) you can apply to NCAT for an interim order in addition to your Application for an Original Decision.  An additional fee must also be paid.     

  Download the Retail Leases Application Form - Request for Interim Order [PDF, 197kB]​​

You will need to provide reasons why you are seeking the interim order.  NCAT will determine the request within 7 days.  NCAT must be satisfied on reasonable grounds that urgent considerations justify the making of the interim order.

If an interim order is made, it remains in force until the Application for an Original Decision is determined.  Once the request for an interim order is determined, the Application for an Original Decision will then be listed for hearing.

Representation

Clause 7 Schedule 4 of the Civil and Administrative Act 2013 provides that a party to proceedings for the purposes of the Retail Leases Act 1994 is entitled to be represented by a lawyer or agent without requiring leave of the Tribunal.

Step 3:​​ Attend a directions hearing

At the directions hearing, a Tribunal Member will talk to you and the other party about the best way to deal with your application.  The Member will assist you and the other party to agree on a timetable for exchanging evidence and documents which are relevant to the claim.

Step 4: Take part i​​n the hearing

NCAT hearings are less formal that court hearings.  Generally, the applicant will present their case first and then the respondent will present their case.  Learn more about going to the hearing.

Step 5: Final orders

In some cases, the Tribunal Member may be able to give you their decision and reasons at the end of the hearing.  In other instances, the Member will need time to consider the matter and give their decision at a later date.  You will receive a letter telling you of the decision that NCAT has made.​

Jurisdiction

NCAT has jurisdiction to hear and determine retail tenancy applications up to $750,000 (​where lease signed on or after 1 July 2017), or $450,000 (where lease is entered into prior to 1 July 2017) under the Retail Leases Act 1994.

The follo​​wing time limits apply:

  • Applications about retail tenancy may not be lodged more than 3 years after the liability or obligation that is the subject of the claim arose;

  • Applications about unconscionable conduct may not be lodged more than 3 years after the alleged unconscionable conduct occurred.

  • An extension of time applies if NCAT orders that the claim may be lodged more than 3 years but no later than 6 years after the liability or obligation that is the subject of the claim arose or after the alleged unconscionable conduct occurred.        

Orders

NCAT can make a wide range of orders under the Retail Leases Act 1994 about retail lease disputes.

Orders about retail tenancy claims under section 72 include:

  • Payment of money
  • Completion of works required under a lease
  • Orders of possession of the premises
  • Declaration as to the rights, obligations and liabilities of the parties
  • Return of bond money

Orders about unconscionable conduct claims under section 72AA include:

  • Payment or refund of money
  • Orders that no money or refund is due.

From 1 July 2017 under Section 32B, all applications about the appointment of specialist retail valuers will be dealt with by the Office of the NSW Small Business Commissioner. NCAT will no longer deal with matters about the appointment of specialist retail valuers.

For more information

OFFICE OF THE NSW SMALL BUSINESS COMMISSIONER

Phone: 1300 795 534
Contact the Office of the NSW Small Business Commissioner for information and assistance before lodging the application.

NCAT

Phone: 1300 006 228
Contact NCAT’s Consumer and Commercial Division for information and assistance after lodging the application.

2014-09-24​

Quick links​

Retail Leases Act 1994  

Forms            

Fees and charges            

How to resolve your matter            

Useful contacts

For information and assistance with retail lease matters