KORONCZYK v VICTORIAN SMALL BUSINESS COMMISSIONER and Others

73 VR 1·Croft J
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73 VR 1
KORONCZYK v VICTORIAN SMALL BUSINESS COMMISSIONER and Others Supreme Court of VictoriaCroft J 25, 26, 28 July 2023[2023] VSC 431Landlord and tenant — Retail leases — Retail tenancy dispute — Alternative dispute resolution — Corporate tenant — Director guarantor — Duty of Victorian Small Business Commission to arrange mediation or other appropriate form of alternative dispute resolution — Failed mediation with tenant — Director as guarantor claiming further dispute — Commission issued certificate certifying failure of mediation encompassing director without further mediation — Whether different dispute — Whether failure by Commission to comply with duty — Effect of any failure to comply with statutory provisions with respect to issuing of certificates — Retail Leases Act 2003 (Vic), ss 1, 85, 86(3), 87(1), 87(3), 91(1)(c) — Small Business Commission Act 2017 (Vic), ss 3, 10(1).

Section 86(3) of the Retail Leases Act 2003 (Vic) (RLA) provided that the Victorian Small Business Commission must arrange for each retail tenancy dispute referred to it to be the subject of mediation or other form of alternative dispute resolution (ADR). Section 87(1) of the RLA provided that a ‘retail tenancy dispute’ may be litigated only if the Commission had certified in writing that mediation or ADR ‘has failed or is unlikely to resolve’ the dispute.

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