Rectification of Retail Leases in NSW: Sidestepping Consent

A court may order that a lease be "rectified", even without the parties’ consent, if the lease fails to properly record the common intention of the parties, is absurd or is obviously wrong. However, when the Administrative Decisions Tribunal (ADT) hears a retail lease dispute, the situation is different. The ADT’s power to rectify the lease is somewhat limited. This update looks at two cases which indicate that the significance of this limit is diminishing.

The Retail Leases Act 1994 (Act) in NSW provides the ADT with the jurisdiction to hear retail tenancy claims, including a "claim regarding rectification of the lease". Section 72 sets out the ADT’s wide powers relating to retail tenancy claims, including the power to "make an order by consent of the parties, requiring the parties to the proceedings to rectify a lease".