In this practice area
Disputes between landlords and tenants, and between property owners, developers and purchasers, including retail lease claims under the Retail Leases Act 1994 (NSW).
What these disputes involve
Commercial and retail leasing disputes usually concern rent and outgoings, rent reviews, repair and make good obligations, disclosure failures, relocation and demolition clauses, assignment and consent, bank guarantees and bonds, and termination for breach. For many tenants, the lease is the business, and a dispute about the premises can threaten the business itself.
Wider property disputes include contracts for the sale of land and off-the-plan purchases, easements and access, caveats, development agreements, and co-ownership disputes.
The legal framework
The Retail Leases Act 1994 (NSW) applies to leases of retail shop premises and overrides inconsistent lease terms. It imposes obligations on landlords, including providing a disclosure statement before the lease is entered into, and regulates matters such as rent reviews, outgoings, assignment and compensation for disturbance. Under section 68, most retail tenancy disputes must be referred to mediation through the NSW Small Business Commissioner before proceedings can be taken, subject to exceptions such as urgent injunctive relief. Retail tenancy claims can then be determined by NCAT, which can hear claims of up to $750,000 for leases entered into on or after 1 July 2017, and $400,000 for earlier leases. Larger claims are heard in the courts.
Leases outside the retail regime are governed mainly by their terms and the general law. Under section 129 of the Conveyancing Act 1919 (NSW), before a landlord can forfeit a lease for most breaches other than non-payment of rent, it must serve a notice specifying the breach and giving the tenant a reasonable opportunity to remedy it. Tenants can apply to the court for relief against forfeiture. Damages for loss of the bargain may be available to a landlord where a tenant repudiates the lease.
How these matters typically run
Leasing disputes often begin with a notice: a breach notice, a notice to remedy, a rent review notice, or a demand on a bank guarantee. The response in the following days can determine the outcome. A defective termination by a landlord, or a tenant's failure to respond to a valid notice, can shift the balance of the dispute.
Retail matters usually go to mediation first and then to NCAT or the courts. Where a landlord is threatening re-entry or to call on security, urgent injunctive relief may be available.
How we act
We act for landlords and tenants, property owners, developers and purchasers. We review the lease and notices quickly, check whether the Retail Leases Act applies, and advise on the practical and legal consequences of each option before a step is taken that cannot be reversed.