When the retail markets slow, disputes between landlord and
tenant tend to arise and a claim on the bond money may soon
A Landlord must ensure that it complies with the provisions of
the Retail Leases Act 1994 in respect to the lodgement of the
Lodgement of security
Section 16C of the Retail Leases Act 1994, provides
that a landlord must deposit a bond received with the Director
General within 20 business days after:
the date of receipt of the bond money; and
the date the lease became binding on both the landlord and the
SSection 16C of the Retail Leases Act 1994 extends to
an agent acting on behalf of the landlord. The landlord may
be liable for a penalty of up to $2,200 if the bond is not lodged
within the time constraints above.
The cheque representing the bond must be accompanied by the
approved form or the Director General can reject the lodgement and
the landlord may face a penalty if the re-lodgement falls outside
the time constraints.
Dispute resolution options
Once a dispute arises there are many dispute resolution options
available to the landlord and tenant.
However, Section 68 of the Retail Leases Act
1994 provides that a landlord or tenant may not commence
proceedings before a court unless and until the Registrar has
certified in writing that mediation has failed to resolve the
dispute or the court is satisfied that mediation is unlikely to
resolve the dispute.
Mediation is a cost and time effective way to resolve a retail
tenancy dispute. The cost to each party is less than
$1,000. Mediation is a process in which the landlord and the
tenant identify the issues in dispute in the presence of a mediator
and all work together to reach an agreement. The mediator
will not provide advice to the landlord or the tenant. The
mediator's role is solely to facilitate an agreement.
Section 69 of Retail Leases Act 1994 provides that any
statement or admission made in the course of mediation of a retail
tenancy dispute is not admissible at a hearing or in any other
What other Alternative Dispute Resolutions (ADR) are
An arbitrator is capable of making a determination in a dispute
once the arbitrator has heard the arguments and reviewed the
evidence of both the landlord and the tenant.
A conciliator assists the landlord and the tenant in identifying
the issues, developing options, considering options and
alternatives in an attempt to resolve the dispute. A
conciliator is often legally qualified or holds professional
qualifications in the area of dispute. The conciliator cannot
determine the dispute.
Early neutral evaluation
This process gives the landlord and the tenant an opportunity to
present their dispute and evidence to a neutral evaluator. The
evaluator determines the key issues of the dispute and advises the
most effective way to resolve the dispute. The evaluator
cannot make a determination as to the facts of the dispute.
An impartial facilitator assists the landlord and the tenant in
identifying and solving the problems by improving the landlord and
tenant's ability to work together to resolve the dispute.
If the landlord and tenant have failed to reach an agreement to
the dispute and once a certificate of failed mediation is received,
a party may commence proceedings in the Retail Leases Division of
the Administrative Decisions Tribunal. Sections 70 to 77C of
the Retail Leases Act 1994 outline the lodging processes
and powers of the Administrative Decisions Tribunal.
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The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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