Leasing disputes

We provide help resolving different types of business disagreements, including a mediation service for leasing disputes, under the Small Business Commissioner Act 2022 (SBC Act) and the Retail Shop Leases Act 1994 (RSL Act).

We aim to:

  • Empower and support the parties to work through the issues
  • Work together to identify options
  • Find a solution that works best for everyone

In Queensland, only courts or tribunals make rulings, give directions or issue orders. You may need to seek independent legal advice about your individual circumstances, as we cannot provide legal or financial advice.

If you have a dispute, you should first attempt to resolve it yourself

If you have a business dispute, we will work with you to help you explore your options and, where possible, work together with the other party to help you both find a solution.

The following sections explain how we can help:

Consult our Fact Sheets first

We have created fact sheets which cover some of the most common dispute topics that we see small businesses face.

In them you will find information, facts to consider, and tips to help you work towards resolving the issue. 

Then, if you are still in a dispute:

About a retail or commercial lease

If you are in a disagreement with your tenant or landlord about a retail or commercial lease and cannot resolve the dispute, we can provide mediation to help you to reach an agreement. 

Before organising a mediation, we will reach out to both parties to discuss the matter and offer informal (free) dispute assistance.

We will then assess your eligibility for mediation under either the RSL Act or the SBC Act.

Please note: When applying for mediation, the applicant must decide whether the application is being made under the RSL Act or SBC Act and we will assess the application based on this choice. 

  • Under the SBC Act, both parties must agree to participate for the mediation to go ahead.
  • Under the RSL Act, if assessed as eligible, the mediation will continue unless the applicant lets the QSBC know that they wish to withdraw.  

With another business

If you have a business-to-business dispute (such as an unpaid invoice), and cannot resolve it yourself, we can help you to explore the issues and identify options to resolve it. 

Our assistance may include:

  • Contacting the applicant about the dispute. 
  • Contacting the other party to understand their perspective (if appropriate).
  • Assisting the parties to communicate better, improve understanding, and work together to reach an agreement.
  • If an agreement cannot be reached, we may be able to suggest other options.

If you have another type of dispute:

The dispute assistance finder can help you find the most appropriate service for you.

Expectation to act in good faith1

The Small Business Commissioner expects all parties to a small business dispute or retail shop tenancy dispute to act in good faith in all actions associated with the dispute including any attempts to informally resolve the dispute and in the mediation conference.

The obligation to act in good faith is established under common law. Good faith requires the parties to an agreement to act honestly, contribute to the contractual benefits, uphold the agreement, and to act reasonably and with fair consideration of the other party’s interests.

Each party’s obligation to act in good faith cannot be excluded or limited, including by a clause in a contract or other agreement, and may continue even after the agreement has ended. While good faith requires you to consider the rights and interests of the other party, it does not require you to act in the interests of the other party or against your own legitimate commercial interests.

1 This section sets out the Small Business Commissioner’s operational policy in relation to good faith.

Criteria for Mediation

Either party to a leasing dispute can apply to the QSBC for mediation in relation to:

  • retail tenancy disputes (under the RSL Act)
  • small business lease disputes (under the SBC Act)
  • franchise disputes1
  • COVID-19 affected lease disputes (until 30 April 2024)
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.

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
  • disputes where the amount, value or damages is more than $750,000

The following sections explain how we can help:

About our mediation service

You can apply for mediation if you are the tenant or landlord in dispute about a small business lease under the SBC Act, or retail shop lease under the RSL Act.

Participating in mediation is optional and anything said in the mediation conference cannot be used as evidence in a tribunal or court.

The QSBC will nominate a mediator from the QSBC Mediator Panel. All mediators are experienced and accredited under the National Mediator Accreditation System (NMAS). 

If you participate in mediation, you agree to the Small Business Commissioner’s Mediation Policy and to comply with any  relevant legal obligations.

Mediation conference

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 verbally or in writing.

During the mediation, each party must conduct their own case; however, the mediator may allow a representative to speak on behalf of a party if they are a company or if the mediator agrees it is appropriate. Additional parties may be added if all the parties agree and the additional party pays their share of the mediation fee. 

If the parties reach an agreement during mediation, the mediator will write down the agreement (called the mediation agreement), and both parties must sign it.

If either party does not follow the agreement, the other party can ask a tribunal or court to enforce it. 

If through this process, a mediation agreement cannot be reached, each party may seek their own independent legal or financial advice about other options. 

For mediations under the RSL Act, if the parties cannot reach an agreement the mediator must refer eligible matters to QCAT.

Mediation fee1

The mediation fee of $371.00 is set in the Small Business Commissioner Regulation 2022 and Retail Shop Leases Regulation 2016 and is shared equally by the parties to the dispute ($185.50 per party).

Our fees and charges increase on 1 July each year.

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 case manager directly stating that you are receiving financial counselling and that the payment of the fee would cause, or would be likely to cause, 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, financial hardship.

The email or signed letter must be received by the QSBC case manager 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 fee waiver request against the above eligibility criteria. A decision will be made within 2 business days of your submission, 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.
Criteria for retail tenancy disputes

Retail tenancy disputes are mediated under the Retail Shop Leases Act 1994 (RSL Act). A retail shop lease under the RSL Act has specific definitions, some of which include:

  • a premises is used for retail purposes
  • a shop type mentioned in the RSL Regulation
  • 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.  

You should seek independent legal advice if you are not sure if your lease is a retail shop lease 

After mediation, the mediator will notify us and must refer the dispute to the Queensland Civil and Administrative Tribunal (QCAT) 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 four 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. 
Criteria for a small business lease disputes

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 for mediation, one party to the dispute must identify as a small business and both parties to a small business lease dispute must: 

  • have already attempted to find an informal resolution to the matter first, and
  • agree to mediate the dispute, and
  • agree to share the cost of mediation equally. 

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

When to go to the QSBC and when to go to QCAT

For retail tenancy disputes, the parties must attempt mediation with the QSBC before making an application to QCAT. If you apply to QCAT for a retail tenancy dispute you will need to provide evidence of your attempt to mediate the matter through the QSBC. If you attempt mediation with QSBC and the matter remains unresolved, the mediator will refer the matter to QCAT for you.

QCAT can hear matters and give directions to the parties (for matters up to $750,000); however, only a court with relevant jurisdiction can make orders about a matter or hear other matters.

For small business lease and franchise disputes, the parties must attempt to informally resolve the matter with the QSBC. The mediator is not required to refer these types of matters to QCAT. QCAT does not have the power to hear commercial leasing disputes. If you bring a commercial leasing dispute to QCAT, it may be dismissed. 

You should seek your own independent legal advice about your individual circumstances and the options available to you.