Arbitration clause ineffective to oust VCAT’s jurisdiction

  • Author : Robert Hay QC - 18-10-2013

In a fascinating decision given today the Supreme Court of Victoria held that an arbitration clause in a lease could not oust VCAT’s jurisdiction under the Retail Leases Act 2003 (2003 Act).

In Subway Systems Australia Pty Ltd v Ireland [2013] VSC 550 Croft J held that VCAT was not a “court” within the meaning of the Commercial Arbitration Act 2011 (Cmlth). The matter came before Croft J after a VCAT member declined to find that the Tribunal was bound to refer the dispute to arbitration under s.8 of the CAA.

In broad terms s.8 of the CAA requires a court before which an action is brought in a matter which is the subject of an arbitration agreement to refer the matter to arbitration if one of the parties makes that request. Croft J held that VCAT was not a “court” for the purpose of s.8(1) of the CAA and therefore VCAT was not bound to refer the dispute to arbitration.


 

His Honour also accepted that by the time s.8 of the CAA might be said by a party to a lease to be engaged, s.94 of the 2003 Act had already rendered void the clause requiring disputes under the lease to go to arbitration. Section 94(2) of the 2003 Act provides that a provision in a retail premises lease is void to the extent that it purport to exclude the application of a provision of the 2003 Act or to limit the right of a party to a lease to seek resolution of a retail tenancy dispute under Part 10 of the 2003 Act.

About the Author

Robert Hay QC

Recent Posts

The Mortgagee’s Power of Sale

Robert Hay QC Date: 18-10-2019

“Retail premises leases” cannot jump out of the Retail Leases Act 2003

Robert Hay QC Date: 04-10-2019

Retail premises leases can “jump out” of the Retail Leases Act

Robert Hay QC Date: 01-08-2019

High Court affirms traditional test for enforcing oral contracts based on acts of part performance

Robert Hay QC Date: 20-11-2018

Estate agents’ commission fiasco to be fixed

Robert Hay QC Date: 26-06-2018

VCAT loses jurisdiction to hear a dispute where a party is not resident in Victoria

Robert Hay QC Date: 24-04-2018