Resolving Lease Disputes

Resolving Lease Disputes



Commercial And Retail Shop Lease Agreements

A lease agreement is a binding contract for exclusive possession of premises. Aitken Whyte Lawyers assist with both Commercial Leases and Retail Shop Leases. Commercial leases cover property used for commercial purposes. For example, an office or warehouse. Retail shop leases cover retail business spaces or businesses inside a shopping centre.

With both types of leases, the parties are running a business, so the disputes that arise can be complex. It is critical to resolve any dispute efficiently to minimise loss of revenue on both sides. As litigation lawyers, Aitken Whyte Lawyers are experts at resolving disputes. As commercial lawyers, we understand:

  • the commercial realities of trade; and
  • the need to achieve results efficiently.

Our focus is on results so that you can get back to business.

Forming A Binding Retail Shop or Commercial Lease

You may become bound by the terms of a lease by signing certain documents or by your actions. Documents that can form a binding and enforceable lease are often called:

  • agreement to lease;
  • lease proposal;
  • offer to lease; or
  • heads of agreement.

It is important you are aware when signing documents or negotiating of what may cause you to enter into a lease. Once established, both parties are bound by the terms of the lease for the contractual period.

This means, generally, that:

  • the tenant (lessee) must pay rent and fulfil all other clauses of the lease; and
  • the property owner/landlord (lessor) must provide quiet enjoyment of the premises.

Before entering a lease, it is essential that both the lessee and lessor understand their:

  • rights; and
  • obligations.

We can provide you with legal advice if you have been given any of the documents above. You should negotiate the terms of your lease before you sign any of these documents. This applies even where you still expect to sign a formal lease.

Obtaining legal advice can ensure the terms of the lease are suitable for you and avoid a dispute down the road.

Common Commercial and Retail Shop Lease Disputes

When disputes arise, the actions of one party may negatively impact the other. Often, however, disputes will cause financial detriment to both parties if left unresolved. We commonly see disputes in relation to commercial and retail leases arise around:

  • 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;
  • the lessee making unauthorised alterations to the property;
  • the lessor failing to carry out repairs or maintenance work on the property;
  • the lessor misrepresenting advertising, competition, fit-out, foot traffic, or visibility during lease negotiations;
  • the lessor of a retail lease providing misleading information in the disclosure statement;
  • 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;
  • the appointment of a liquidator to a corporate lessee or lessor due to insolvency; or
  • the lessor failing to provide “reasonable time” for the lessee to remedy a breach of the lease.

This is not an exclusive list and lease disputes are not always straightforward. Seeking legal advice, however, can guide you in reaching a successful resolution.

Methods To Resolve a Lease Dispute

Several avenues are available to resolve a commercial or retail lease dispute.

These are some that may be appropriate depending on your circumstances:

  1. Issue of a notice to remedy breach of covenant following a breach of the agreement or essential term of the lease;
  2. Termination of the lease;
  3. Mediation; or
  4. Commencement of Court proceedings or QCAT proceedings.
Notice To Remedy Breach of Covenant

If either party breaches a term of the lease, the other may issue them with a notice to remedy that breach.

The notice must specify the breach and seek for the offending party to remedy it (if it can be remedied). It may also seek compensation for the breach, if applicable.

If the breach is remedied (and compensation paid), this can provide a timely resolution.

If, after a reasonable time, the breach is not remedied, the issuing party may be able to terminate the lease.

Some breaches can’t be remedied.

Termination Of the Lease

In certain circumstances, a lease may be terminated early (before its end date). For example, where a valid notice, as above, is issued and the breach is not remedied within a reasonable time.

Termination By the Lessor

In these circumstances, the lessor, for example, may be able to take possession of the premises. They can do this by:

  • changing the locks and physically retaking possession; or
  • serving a notice of termination.

It is important to seek legal advice to ensure the legality of this action before taking such steps. There may be significant repercussions if the lessee is locked out inappropriately. For example, the lessee may be able to claim damages for the loss suffered from not having use of the premises. Such action could be deemed inappropriate simply because the notice issued:

  • did not contain necessary information;
  • was not served correctly; or
  • didn’t provide sufficient time to remedy the breach.

Termination By the Lessee

Conversely, a lessee may also put a lessor on notice regarding a breach of the lease terms. Termination may be available to the lessee where:

  • a key term of the lease has been breached; or
  • the breach occurs repeatedly.

For example, a key term of the lease could be that power or utilities are supplied to the premises. If that supply is interrupted, the lessee may require the lessor to rectify this in a short period of time. If that does not occur, the lessee may not be able to carry on business. A repeated breach could be the lessor accessing the premises without notice. Certain breaches may also justify immediate termination.

Whether the lease can be terminated will depend on:

  • the nature of the breach; and
  • how soon after the breach the lessee sought early termination.


The continuation of the lease will be impacted if a corporate lessor or lessee enters into:

  • insolvency
  • liquidation; or
  • external administration.

A liquidator or administrator will be appointed to the company who has rights around the termination of the lease.

If the lessor becomes insolvent, the liquidator can “disclaim” the lease. In this situation, this means the tenant will no longer have any interest in the property. The liquidator is then free to deal with the property as they see fit, without considering the lessee.

The lessee, however, can apply to set aside the liquidator’s disclaimer. We can advise you on your prospects and represent you at such an application.

If a lessee becomes insolvent, the liquidator can still disclaim the lease. In this situation, the lease will end and the lessor will become an unsecured creditor of the lessee. The lessor may prove their loss resulting from the disclaimer. They will then be paid alongside other creditors (according to priority).

Speak To a Lawyer Before Terminating a Lease

If a party breaches the lease, this does not authorise the other party to also breach the agreement. Consideration needs to be given to;

  • the terms of the lease; and
  • appropriate processes for dispute resolution.

If you are seeking early termination of a commercial or retail shop lease, we can assist.


Mediation as an alternative method of dispute resolution can be particularly effective. Especially where neither party is seeking early termination of the lease.

This may be a good option to consider with disputes surrounding the:

  • reassignment of the lease; or
  • subleasing of the premises.

The parties may want the lease (or an amended version of the agreement) to continue but there is a dispute to decide. Resolution through mediation:

  • can avoid a breakdown in the relationship between the parties; and
  • focuses on coming to a mutually acceptable agreement.
Commencing Court Proceedings

Depending on the nature of the dispute, litigation may be the best way to achieve your desired result. If you have suffered loss from a breach of the lease, our litigation lawyers can assist you to:

  • bring a claim for damages;
  • settle the matter on good terms for you or obtain a judgement in your favour; and
  • enforce any judgement against the debtor.

As a lessor, you may need to bring a claim for:

  • unpaid rent;
  • damage caused to the property; or
  • the lessee failing to meet their “make good” obligations at the end of the lease.

As a lessee, you may need to claim for:

Aitken Whyte Lawyers will aggressively litigate on your behalf to recover your loss. Our litigation lawyers are passionate and skilled advocates who are focused on results.

Why Engage a Lease Dispute Lawyer?

It is important to handle commercial and retail shop lease disputes with care. Especially if you wish to:

  • maintain the relationship between the parties; and
  • continue the lease to everyone’s benefit.

There are a myriad of considerations when it comes to a dispute that impacts your business. In addition to the financial impact, considerations can include:

  • ongoing business relationships;
  • reputational issues;
  • market condition; and
  • the current and future use of the premises.

As experts at what we do, we can handle all these things for you while resolving your dispute.

In addition to these intricacies, leasing disputes can involve complex areas of law. Aitken Whyte Lawyers have extensive experience to guide you in navigating these areas.

Focused On Results

Aitken Whyte Lawyers Brisbane are focused on results.

It is essential you have experienced lawyers when dealing with a leasing dispute.

We will take a tailored approach to resolve your matter on the best terms for you, whether:

  • you are being sued;
  • you wish to make a claim; or
  • you believe a dispute may arise.

Aitken Whyte Lawyers will make sure your rights are protected.

Our lawyers have experience representing the tenants and landlords of many commercial properties. We can assist in preserving business relationships while achieving beneficial outcomes.

Should you need to take Court action, you will have an expert legal team ready to fight for you.

Aitken Whyte Lawyers can assist with all commercial and retail leasing matters. Call us today to discuss your needs.

Office Location and Contact Details


Aitken Whyte Lawyers Brisbane
2/414 Upper Roma Street
Brisbane QLD 4000

Ph: 07 3229 4459
Fax: +617 3211 9311