Retail lease disputes: Rethinking Mediation before proceedings?

The recent Supreme Court decision in Fordham Laboratories Pty Ltd v Sor and Anor¹ (Fordham's Case) gives cause to rethink the 'default' approach of mediation of disputes under the Retail Leases Act 1994 (NSW) (the Act).

Mediation and the Administrative Decisions Tribunal

Much of the procedure for determining retail lease disputes in NSW is governed by the Act, being intended to address a perceived imbalance of economic power between landlord and retail tenant and to ensure that there is no improper exercise of such power by landlords. It is therefore unsurprising that the Act contains specific provisions concerning mediation and the referral of retail tenancy disputes to a specialist Tribunal, namely the retail Leases Division of the Administrative Decisions Tribunal (Tribunal).