Issuing in VCAT without mediating at the Small Business Commissioner – proceedings ‘in the nature of an injunction’

Ordinarily, a tenant faced with a landlord who is withholding consent to an assignment is required to seek a declaration that the landlord’s consent is wrongly withheld, rather than an injunction.

Similarly, a tenant who needs production of a deed of renewal in order to properly assign its lease would ordinarily seek specific performance of the agreement to lease.

That suggests that a mediation would be required before an application is made to VCAT.

However, in the recent decision of PB Hospitality Pty Ltd v Peto Bros Pty Ltd (unreported, VCAT, Deputy President Aird, 22 April 2013), the applicant sought mandatory injunctions that the landlord produce a signed renewal of lease and consent to the assignment of the lease. The respondent submitted that the Tribunal did not have jurisdiction because the relief sought could not be properly characterised as either an injunction or an application in the nature of an injunction. The Tribunal rejected that submission and found that it did have jurisdiction to hear the dispute without the need to mediate at the Office of the Small Business Commissioner.