Commercial Litigation

When the dispute between a retail shop owner and the landlord can’t be resolved, it is common practice for the parties to engage in non-compulsory conference mediation shortly after filing a notice at the Queensland Civil and Administrative Tribunal.

The Tribunal nominates a mediator, an independent accredited person with experience in resolving this type of dispute. Mediation remains a more cost effective and faster process aimed at achieving mutually satisfactory resolution.

Having a lawyer at the Tribunal is not a given and Solicitors at mediation are usually regulated to providing advice on complex areas of law or the proposed agreement.  In the situation where there is a power or leverage disparity between a landlord and tenant for example where the landlord is a large company and the tenant is an individual, small business or company, the Tribunal may grant leave for a solicitor to appear for the tenant.

Retail leasing disputes frequently arise from disagreements between a tenant (lessee) and landlord (lessor) about a retail shop lease. While the dispute is ongoing, there can be detrimental effects to the trading and business operations of the parties.

Unfortunately, even in the situation where the landlord and tenant wish to resolve the dispute efficiently and without litigation, this is not always the case or best option. The Retail Shop Leases Act 1994 (Qld) was formed with the purpose of providing a low cost, streamlined dispute resolution process for the parties. The common types of disputes often include:

• A lessee making unauthorised alterations to the premises;
• the lessor failing to carry out repairs or maintenance work on the premises;
• the lessor misrepresenting advertising, competition, fit-out, or visibility during lease negotiations;
• disruption to the lessee’s business (e.g., works in adjoining premises owned by the same lessor or relocating a tenant from one premises to another);
• subleasing or reassignment of the lease
• lease outgoings
• the lessor of a retail lease providing misleading information in the disclosure statement;
• notices for breaches of the lease including failure to pay rent,
• the lessee causing damage to the property or failing to pay rent as agreed;
• the lessee failing to maintain the property or return it to the state required at the end of the lease
• legal costs and disputes

Commercial leases frequently allocate a clause for rent increase. This is usually represented by a fixed percentage increase by referring to CPI increase of review market. Parties to the lease must review this clause carefully to ensure the correct law is applied and correct. Retail leases on the other hand, are subject to markets reviews which are to be carried out by specialist retail valuers which can be challenged.

No matter the type of lease the first step is to check the relevant clause in your lease for any rental increase terms. If a dispute arises there are arises the correct notice must be issued. This is a complex area of law requiring the skills of an experienced dispute resolution solicitor.

Leases usually give the lessor the right to terminate a lease resulting from a breach of an essential term or covenant by the lessee. Essential terms and covenants differ for each lease for both retail or commercial leases but commonly relate to failure to pay rent and outgoings, damage to the premises or failure to carry out maintenance. A Lessor issues the lessee with a notice to remedy breach of covenant before the lease can be terminated.

Generally, the obligations of a landlord to a commercial or retail property relate to maintenance and repair of the premises which is set out in the lease. Most leases will show the lessee is responsible for the premises frequently relating to walls, fixtures and inclusions and floors. The landlord requires the lessee to maintain and repair the premises for the duration of the lease.

The landlord is typically responsible for maintaining and repairing major structural aspects of the building such including the building systems, roof, common areas, lifts, air conditioning, cool rooms, wall partitioning and heating fixtures. Each clause in the lease should be carefully drafted in a clear manner to avoid disputes between the parties. Commercial leases are frequently silent on terms relating to cool rooms and air conditioning.

If you are running a business in Australia, you may encounter various legal issues that can impact your operations, compliance, and overall success. It’s best to familiarise yourself with these issues to avoid them.

At AKS Law, we know the ins and outs of all common legal issues for businesses – and we’re here to help you navigate them.

Employment Law Compliance

Employment laws are put in place to protect employees, so there are strict standards and rules to comply with. Some you may be familiar with include:

• Fair Work Act 2009. This act provides the minimum terms and conditions for most employees in Australia, including the National Employment Standards (NES), which set out 10 minimum entitlements.
• Workplace Discrimination and Harassment. Businesses must protect employees from discrimination, bullying, and harassment and comply with anti-discrimination laws.
• Industrial Manslaughter. New laws, such as those in South Australia, introduce severe penalties for breaches of health and safety duties resulting in death.
• Enterprise Agreements and Awards. Ensuring compliance with enterprise agreements and modern awards that set additional employment conditions.

Contractual Disputes

Contractual disputes can arise from misunderstandings or breaches of contract terms. These disputes often require legal intervention to resolve issues related to:

• Contract Interpretation. You may encounter disagreements over the meaning of contract terms and could require legal assistance to settle the dispute.
• Breach of Contract. Either party may fail to fulfill contractual obligations, leading to potential litigation.

Intellectual Property (IP) Protection

Protecting intellectual property is crucial for businesses to safeguard their innovations and brand identity. Common IP issues include:

• Trademark Infringement. A company’s trademarks may be used without permission, leading to a dispute.
• Copyright Violations. Unauthorized reproduction or use of copyrighted material is a common IP issue.
• Patent Disputes. You may face conflicts over the use of patented inventions.

Consumer Law Compliance

Businesses must comply with the Australian Consumer Law (ACL), which protects consumers and ensures fair trading.

• Misleading and Deceptive Conduct. It is illegal for advertising and marketing practices to mislead consumers, intentionally or otherwise.
• Product Safety. Businesses must comply with mandatory safety standards, and conduct recalls if necessary.
• Unfair Contract Terms. Avoiding terms in standard form contracts that create a significant imbalance between the parties.

Data Privacy and Cybersecurity

With increasing reliance on digital technologies, businesses must protect personal data and comply with privacy laws.

• Privacy Act 1988. Businesses need to comply with the Australian Privacy Principles when handling personal information.
• Data Breaches. Under the Notifiable Data Breaches (NDB) scheme, businesses must report and manage data breaches in a certain way.

Regulatory Compliance

Businesses must navigate a complex regulatory landscape, including:

• Competition and Consumer Act 2010. This act covers issues related to anti-competitive behavior and consumer protection.
• Environmental Regulations. Companies need to comply with federal, state, and local environmental protection laws.

Dispute Resolution

Disputes can arise in various areas, requiring effective resolution mechanisms:

• Alternative Dispute Resolution (ADR) involves methods such as mediation and arbitration to resolve disputes without litigation.
• Litigation involves court proceedings for unresolved disputes, including shareholder conflicts and breaches of directors’ duties.

Corporate Governance

Ensuring proper corporate governance is essential for compliance and operational efficiency.

• Directors’ Duties involve compliance with duties under the Corporations Act 2001, including acting in the best interests of the company.
• Shareholder Disputes include managing conflicts between shareholders and directors, often requiring legal intervention.