Business disputes

The Retail Shop Leases Act 1994 (RSL Act) applies to retail tenancy disputes about retail shop leases which include:

• premises is used for retail purposes
• a shop located within a retail shopping centre (where 5 or more retail shops are located)
• a shop with a floorspace of less than 1,000 square metres
• a lease with a lease term greater than 6 months.

For retail tenancy disputes, the mediator must refer the dispute to the Queensland Civil and Administrative Tribunal (QCAT) and notify us if:

• no agreement can be reached in writing at mediation, or
• a party does not attend mediation, or
• the dispute has been with the mediator for 4 months, and
• the lease is current (or has not expired, been surrendered, or terminated more than a year ago), and
• the dispute is within QCAT’s jurisdiction.

Under the RSL Act, mediators cannot mediate disputes about the amount of rent; disputes that are before or have already been decided by a court or arbitration; or disputes where the amount, value or damages is more than $750,000.

The Small Business Commissioner Act 2022 (SBC Act) applies to small business lease disputes (other than retail tenancy disputes) and franchise disputes.

To be eligible to access mediation, both parties to a small business lease dispute must:

• have requested dispute assistance from us so that we could try to find an informal resolution to the matter first
• agree to mediate the dispute and share the cost of mediation equally ($175 per party).

If no agreement can be reached at mediation, you may need to seek your own independent legal or financial advice about your further options.

Under the SBC Act, mediators cannot mediate disputes about the amount of rent or outgoings payable under the lease; disputes that are before or have already been decided by a court or arbitration; or disputes where the amount, value or damages is more than $750,000.

A party to a small business lease or retail shop lease (the lessee/tenant or lessor/landlord) may apply to the QSBC for low-cost mediation.

This includes small business lease disputes and franchise disputes¹ under the Small Business Commissioner Act 2022 (the SBC Act) and retail tenancy disputes under the Retail Shop Leases Act 1994 (the RSL Act); however, the parties to a small business dispute must first have attempted to resolve the dispute by seeking informal assistance (dispute assistance) from the commissioner before applying for mediation.

Participation in a mediation conference provided by the QSBC under the SBC Act or RSL Act is voluntary. Anything said in a mediation conference for a small business dispute, franchise dispute or retail shop lease dispute is not admissible in a proceeding before a court or tribunal.

If both parties to a dispute agree to participate in a mediation conference and pay their share of the mediation fee, the Small Business Commissioner will nominate a mediator from the QSBC Mediator Panel. All mediators are independent professionals with relevant experience and are accredited under the National Mediator Accreditation System (NMAS).

By agreeing to participate in a mediation conference provided by the QSBC, you are bound by the provisions of the relevant legislation and by the Small Business Commissioner’s operational policies.

You also agree that the mediator will not be held liable by a party for any act or omission in the performance of their functions unless the act or omission is fraudulent.

¹ The Small Business Commissioner’s operational policy in relation to franchise disputes is to refer all franchise disputes to the Australian Small Business and Family Enterprise Ombudsman (ASBFEO) due to the requirements of the national Franchise Code.

All mediations are conducted in accordance with the National Mediator Accreditation System (NMAS) practice standards.

The mediation conference will be held in private via video or telephone conferencing and is confidential.

The mediator will help the parties to explore the issues, discuss options, and, if possible, reach a settlement agreement. The mediator will conduct an intake with each party, may ask the parties to share information, may meet with the parties together or separately, and may communicate orally or in writing.

A party at a mediation conference must conduct their own case; however, the mediator may approve an agent to represent a party if the party is a corporation or the mediator is satisfied an agent should be permitted to represent the party. The QSBC may join a person as a party, if the other parties agree, and if the person pays the mediation fee.

If the mediation is successful and the parties reach an agreement about the dispute, the mediator will set out the agreement (the mediation agreement) in writing and both parties must sign the mediation agreement. A party to a mediation agreement may apply to a court for an order enforcing the terms of the agreement.

If a mediation agreement cannot be reached, each party may seek their own independent legal and financial advice about their further options. This may include an application to the Queensland Civil and Administrative Tribunal (QCAT) or an application to a relevant court.

The mediation fee is set in the Small Business Commissioner Regulation 2022 and Retail Shop Leases Regulation 2016 and is shared equally by both parties to the dispute.

The mediation fee to accompany an application for a mediation conference with the QSBC is $350 – paid in equal shares of $175 by each party to the dispute.

After lodging your application for mediation, each party to the dispute must pay an equal share of the mediation fee ($175 per party). Details on how to make the payment will be provided to both parties after the application for mediation is submitted.

Fee waiver for financial hardship

The commissioner may waive all or part of the fee payable by a party if the commissioner is satisfied the payment of the fee would cause, or would be likely to cause, the party financial hardship. To apply for a waiver based on financial hardship, the party must meet the below eligibility criteria:

• Be currently receiving support from the Small Business Financial Counselling Service and request (and have) the counsellor email the QSBC officer directly stating that you are receiving financial counselling and that the payment of the fee would cause, or would be likely to cause, the party financial hardship. OR
• Have an independent certified practising accountant or certified bookkeeper provide a signed letter (including their full name, contact information and certification) stating that they have no conflict of interest, are aware of your current financial position and that the payment of the fee would cause, or would be likely to cause, you financial hardship.

The email or signed letter must be received by the QSBC officer assisting with your dispute before the due date for your share of the mediation fee.

If your application is properly made, the commissioner or authorised officer will then consider your application against the above eligibility criteria. A decision will be made within 2 business days of your application, and you will be advised of the outcome by email.

Fee waiver for a class of parties

The commissioner may also waive all or part of the fee payable for a class of parties for a particular period if the commissioner is satisfied the waiver will promote access to mediation by the parties during the period.

If the commissioner is satisfied that an unforeseeable business disruption has occurred which is reasonably preventing either of the parties from fulfilling their obligations under a small business lease or retail shop lease, the commissioner may publish a waiver of all or part of the mediation fee on the QSBC website.

The waiver will state the class of parties to which it applies and the period for which the waiver exists. The waiver will be automatically applied to relevant parties; however, the parties will be asked to confirm by email that they wish to apply for and participate in a mediation conference.

¹ This is the Small Business Commissioner’s operational policy in relation to mediation fees.