Farmers Arms Tavern Pty Ltd v Barns [2026] QCATA 104

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Farmers Arms Tavern Pty Ltd v Barns [2026] QCATA 104 PARTIES: FARMERS ARMS TAVERN PTY LTD (applicant) v LYNETTE JOY BARNS (respondent) APPLICATION NO: APL152-25 ORIGINATING APPLICATION NO: RSL002-25 MATTER TYPE: Appeals DELIVERED ON: 19 June 2026 HEARING DATE: On-Papers Hearing HEARD AT: Brisbane DECISION OF: Senior Member Traves ORDERS: The appeal is allowed. The decision made in application RSL002-25 on 2 April 2025 is set aside and the application is returned to the Tribunal for reconsideration (in accordance with these Reasons) in the Retail Shop Lease list by any Tribunal properly constituted. The following Directions apply to the remitted hearing of RSL002-25: (a) Farmers Arms Taverns Pty Ltd must file in the Tribunal one (1) copy of, and give to Lynette Joy Barns one (1) copy of, any further evidence and submissions addressing: (i) what the ‘floor area’ of the retail shop is; and (ii) any further evidence relevant to the issues in dispute, by: 4:00pm on 17 July 2026. (b) Lynette Joy Barns must file in the Tribunal one (1) copy of, and give to Farmers Arms Taverns Pty Ltd one (1) copy of, any submissions and evidence in response, by: -- 1 of 12 -- 2 4:00pm on 15 August 2026. (c) The matter be heard and determined on a date to be fixed, after 15 August 2026. CATCHWORDS: APPEAL AND NEW TRIAL – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW AND/OR FACT – LEAVE TO APPEAL LANDLORD AND TENANT – RETAIL AND COMMERCIAL TENANCIES LEGISLATION JURISDICTION, POWERS AND APPEALS OF COURTS AND TRIBUNALS – JURISDICTION GENERALLY – whether proceedings properly commenced – whether entitlement to interim relief where pre-proceedings dispute resolution provisions in the Retail Shop Leases Act 1991 (Qld) not complied with – whether ‘retail tenancy dispute’ – proper meaning of ‘floor area’ in s 5A(2) of the RSL Act – whether error of law requiring matter be remitted Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9, s 142 Retail Shop Leases Act 1994 (Qld), s 5A, s 5B, s 5C, s 55, s 63, s 64, s 103, Schedule Dictionary Retail Shop Leases Regulation 2016 (Qld), s 8, Schedule 1 Cachia v Grech [2009] NSWCA 232 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 Hall v Joyworth Pty Ltd (1993) V Conv R 54-461 Harrison v Meehan [2017] QCA 315 Joad Pty Ltd v Ospies Hotels Pty Ltd [1995] 1 VR 198 Mc Donald’s Australia Ltd v Emaas Paty Ltd [2011] QCAT 293 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Robert v Besford [1991] 1 VR 606 Sandgate Taphouse Pty Ltd v SJI No 7 Pty Ltd [2025] QCAT 80 Sorbara v DJ & AJ McKellam Pty Ltd [1999] 2 VR 1 The Estate of Sonia Tubaro (Deceased) v Ratakhin [2026] QCATA 30 Wagners Properties Pty Ltd v Atlas House Removers Pty Ltd [2023] QSC 40 Zeus & RA Pty Ltd v Nicolaou [2003] VSCA 11 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). -- 2 of 12 -- 3 REASONS FOR DECISION [1] This is an application for leave to appeal and/or appeal a decision of the Tribunal dated 2 April 2025 in which the Tribunal dismissed the application for an order to resolve a retail tenancy dispute on the basis the Tribunal lacked jurisdiction and dismissed the application for interim orders. Background [2] On 21 January 2025 Farmers Arms Tavern Pty Ltd (the lessee) applied to QCAT under the Retail Shop Leases Act 1994 (Qld) (‘RSLA’) to resolve a retail tenancy dispute and a separate application for interim orders. [3] The lessee entered into a lease with James Barns and Lynette Barns on 1 November 2017. The initial lease term expired on 31 October 2023, the lease included three five- year options. The use of the premises was described as “Hotel/Tavern”. The lease was of Lot 1, Registered Plan 166827, a parcel of land which included a building the lessees used to conduct a tavern in Cabarlah, near Toowoomba. Mr Barns passed away in late 2023 and from then the lease was managed by his daughter, Ms Leonie Barns. Ms Lynette Barns, the respondent, is the registered proprietor of the leased premises. [4] The lessee claims it was served with a Notice of Termination on 14 November 2024 and effectively forced to enter a new lease which introduced significant changes, including a 21.37% rent increase and mandatory operating hours (10am to 10pm seven days a week). [5] On 13 December 2024 the lessee applied for mediation with the Queensland Small Business Commission (‘QSBC’) and a mediation case number was issued (QSBC 11154). However, the lessee says that, due to the Christmas break, it was advised by the QSBC to seek urgent relief through the Tribunal. [6] On 16 December 2024 the lessee signed a new lease, it says ‘under duress’, agreeing to unfavourable terms and increased financial obligations under threat of eviction. [7] On 15 January 2025 the new lease was entered into with a commencement date of 1 November 2023 and an expiry date of 31 October 2028, and two five-year options. [8] On 21 January 2025 the lessee applied to the Tribunal seeking an injunction to prevent enforcement of the eviction notice dated 14 November 2024 and orders to reinstate the terms of the initial lease and for reimbursement of financial losses it said it incurred due to the lessor’s breaches.1 [9] On 12 February 2025 the lessee applied for an urgent interim order ‘to preserve its position and to protect its business prior to the Tribunal’s final determination of the substantive issues in dispute’. [10] On 2 April 2025 the Tribunal made orders dismissing both the application to resolve a retail tenancy dispute and the application for interim orders. [11] On 15 April 2025 an application for leave to appeal or appeal was filed which also sought interim relief under ss 58 or 59 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) to preserve the parties’ positions and prevent further retaliatory conduct until the appeal is determined. 1 Application for an order to resolve a retail tenancy dispute dated 21 January 2025. -- 3 of 12 -- 4 [12] On 26 May 2025 an order was made ‘suspending the operation of the Tribunal’s decision pending the determination of the application to stay a decision, or until further order.’ [13] On 19 November 2025 the application to stay a decision was refused and the interim order made on 26 May 2025 was vacated. Decision at first instance [14] The Member found that the Tribunal did not have jurisdiction to decide the dispute under the RSLA. [15] The Member reasoned as follows: (a) The Tribunal is a creature of statute and must find its power to determine disputes either in the QCAT Act or an enabling Act. (b) The relevant enabling Act is the RSLA. Under that Act, the Tribunal has jurisdiction to hear 'retail tenancy disputes' under or about a 'retail shop lease.' (c) A retail shop lease does not include a lease of a retail shop with a floor area of more than 1,000 square metres, referring to s 5A(2)(a). (d) The Lease states that the premises being leased is the whole of the land and the area of the whole of the land is 2,659 square metres. (e) The definition of the retail shop in the RSLA refers to the entire leased premises, not just the part of the building used for the purpose of conducting the retail business. In this case, the premises to which the Lease pertains is more than 1,000 square metres. (f) In the circumstances, the dispute is not a retail shop dispute and the Tribunal has no jurisdiction to hear the matter. (g) There is no need to go further to make a finding as to jurisdiction based on a failure to comply with pre-proceeding mediation required by the RSLA. The appeal [16] The application for leave to appeal relies upon the following grounds: (a) the decision involved a misinterpretation of the law, specifically s 5A(2)(a) of the RSLA; (b) the decision was not supported by the evidence available to the Tribunal; and (c) the decision involved a miscarriage of justice by failing to consider legal principles, relevant statutory discretion and factual context. [17] The applicant, by its submissions filed on 8 July 2025, asserted that the following errors were made: Error of Law – The Member relied on the phrase “whole of the land” within the lease without applying the principle of contra proferentem, which holds that ambiguous terms in a contract must be construed against the drafter. -- 4 of 12 -- 5 Error of Fact – The Member relied on the landlord’s submission of property size (2,659 m²) without assessing the actual retail footprint. Our premises occupy approximately 250 m² (9.4% of the land) within a 494 m² building. This is the portion used for retail business, well under the RSLA threshold of 1,000 m². Mixed Error – The Member did not assess the lease renewal by conduct, including the landlord accepting rent for over 52 weeks, issuing Forms 13 and 20 only four days before the expiration date of the lease. Furthermore, Communication from Leonie Kliese shows the estate intended to finalise continuation with our business. Nor did the Member consider procedural coercion or economic duress which led us to sign a new lease under protest on 16 December 2024. Misapplication of RSLA – The Tribunal excluded our tenancy from RSLA protection based solely on the land description without assessing our actual business operations, which are clearly retail in nature and entitled to protection. Leave to appeal [18] An appeal to the Appeal Tribunal on a question of law is as of right as opposed to an appeal on a question of fact or mixed law and fact which requires the leave of the Appeal Tribunal.2 [19] In deciding an appeal on a question of law only, the Appeal Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision or set aside the decision and return the matter to the Tribunal (either as originally constituted or differently constituted) for reconsideration.3 [20] Subject to leave to appeal being granted, if an appeal is against a decision on a question of fact only or a question of mixed law and fact the appeal must be decided by way of rehearing with or without the hearing of additional evidence as decided by the Appeal Tribunal.4 In deciding the appeal, the Appeal Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision, or set aside the decision and return the matter to the Tribunal (either as originally constituted or differently constituted) for reconsideration.5 [21] To be granted leave to appeal, the applicant must show: (a) there is a reasonable argument that there is an error to be corrected; and (b) the appeal is necessary to correct a substantial injustice caused by some error.6 [22] If an appeal involves a question of law, unless the determination of the error of law decides the matter in its entirety in the appellant’s favour, the proceeding must be returned to the Tribunal for reconsideration.7 It is normally only possible to decide the matter in favour of the appellant by determining an error of law when no further evidence is required to resolve outstanding issues.8 2 QCAT Act, s 142(3)(b). 3 QCAT Act, s 146. 4 QCAT Act, ss 147(1), (2). 5 QCAT Act, s 147(3). 6 Rintoul v State of Queensland [2018] QCA 20, [10]; QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 7 Ericson v Queensland Building Services Authority [2013] QCA 391. 8 Lance v Riviera Motors Pty Ltd [2025] QCATA 30. -- 5 of 12 -- 6 [23] If separate grounds of appeal raise questions of law and questions of fact or mixed law and fact, it is appropriate to address first those grounds involving questions of fact or mixed law and fact. If leave to appeal is granted then the appeal must be decided by way of rehearing and all the matters the subject of the grounds of appeal should be dealt with in the rehearing. That said, the Appeal Tribunal is not required to address distinctly each question raised by an appellant.9 It is sufficient that the reasons of the Appeal Tribunal explain how its conclusion is reached. Grounds of Appeal [24] The applicant is self-represented. The appeal raises two issues. The applicant has raised an important issue of jurisdiction. I propose to deal with it first. [25] The ground is re-framed as follows: Ground one: Did the Member err in the construction of s 5A(2) of the RSLA, in particular in finding that ‘floor area’ was the whole of the demised premises? [26] The RSLA applies to retail shops but not to retail shops where the ‘floor area’ of the premises exceeds 1000𝑚𝑚 2. The issue is what ‘floor area’ means in s 5A(2) in the context of the RSLA. The issue is relevant because it determines whether the demised premises are governed by the terms of the RSLA. The question whether the premises are governed by the RSLA falls to be determined, in turn, by resolution of the question whether the floor area of the demised premises exceeded 1000𝑚𝑚 2. [27] The learned Member decided that the demised premises were exempt from the RSLA because ‘floor area’ referred to the whole of the demised premises, here described in the lease as ‘the whole of the land’ which well exceeded 1000𝑚𝑚 2. [28] The lessee submits that the Member erred in that approach. They say the relevant floor area for the purposes of s 5A(2) is not the whole of the demised premises but the area actually occupied by buildings from where the tavern and associated retail businesses are conducted. This area is easily less than 1000𝑚𝑚 2 and would mean, accordingly, that the lease was protected by the RSLA, including in respect of rent review. [29] The lessors argue that the Member was correct in concluding the RSLA had no application because the premises were not “retail premises” within the meaning of the Act. Consideration [30] The RSLA is concerned with tenancies, with demised premises and with the use to which premises are put or are to be put under the terms of the lease. The Act applies only to certain leases, but if it does, there are certain protections afforded to tenants. Similarly, the Tribunal only has jurisdiction to determine disputes under the RSLA if the matter is a retail tenancy dispute: s 103(1). [31] A ‘retail tenancy dispute’ is ‘any dispute under or about a retail shop lease, or about the use or occupation of a leased shop under a retail shop lease, regardless of when the lease was entered into’: Schedule Dictionary. The meaning of ‘retail shop’ is therefore critical. 9 Harrison v Meehan [2017] QCA 315. -- 6 of 12 -- 7 [32] “Retail shop lease” means a lease of a retail shop: s 5A(1). [33] Pursuant to s 5B, “retail shop” means premises that are: (a) situated in a retail shopping centre; or (b) used wholly or predominantly for the carrying on of a retail business. [34] It is clear from that definition that, although the definition is concerned with the carrying on of a retail business, premises which are a “retail shop” need not be wholly devoted to carrying on of that business. Further, it is possible under that definition for a physically separate part of the premises not used for the retail business to nonetheless come within the definition. The test is whether the premises are used “wholly or predominantly for the carrying out of” a retail business. [35] “Retail business” means a business prescribed by regulation as such: s 5C. [36] Section 5A which is headed “Meaning of retail shop lease” provides that a ‘retail shop lease’ is a lease of a retail shop, however it does not include a lease of a ‘retail shop with a floor area of more than 1,000𝑚𝑚 2.’ [37] The words ‘floor area’ are not defined. [38] The issue has caused difficulty in other jurisdictions. In the trial division of the Supreme Court of Victoria disputes arose between landlords and tenants as to whether certain surfaces on demised premises were included in the ‘floor area’ for the purpose of determining whether 1000𝑚𝑚 2 had been exceeded. Those disputes related to both surfaces within buildings on the demised premises and also to surfaces which whilst not within a building were said to be part of the business conducted on the demised premises. In some cases disputes related to surfaces which were within buildings on the demised premises but which had ceased to be used in the course of the business. [39] In Joad Pty Ltd v Ospies Hotels Pty Ltd [1995] 1 VR 198, for example, the demised premises were a country hotel and the dispute related to areas such as an old and unused shed with a dirt floor, a disused cellar, and the dirt-floor basement, on the one hand, and on the other hand, areas which had continuing use in the business such as a footpath on which tables were sometimes placed for customers to dine, drive-ways, car parks, and a drive-through bottleshop (See also Robert v Besford [1991] 1 VR 606; Hall v Joyworth Pty Ltd (1993) V Conv R 54-461). [40] Notably, cases involving motels and hotels were described as among those which had raised particular problems in calculating floor area, having regard to the number of indoor and outdoor surfaces which, arguably, were integral parts of the business: Zeus & RA Pty Ltd v Nicolaou [2003] VSCA 11 at [12]. [41] The Victorian Court of Appeal addressed the issue in Sorbara v DJ & AJ McKellam Pty Ltd [1999] 2 VR 1 and, although dealing there with a motel, provided guidance as to the appropriate approach to be adopted in all cases where the issue was in dispute. [42] Kenny JA, with whom Ormiston JA agreed, held that the term ‘floor area’ signified that part of the lower surface area of the premises used, or to be used, or designed and available for use in the business carried on within the demised premises. Importantly, her Honour held, that the area of the demised premises would not necessarily be the same as the floor area of the premises but, in cases such as -- 7 of 12 -- 8 motels, caravan parks, drive-in theatres and similar places the dimensions of ‘floor area’ and area of demised premises may be very similar. [43] The majority held that whether an area did constitute floor area would require examination of the nature of the business and the use to which the premises was put (at [42]). The question was whether any lower surface was used or designed and available for use in the relevant retail business (at [41]). Phillips JA, generally agreeing, held that the nature of the retail business would be determinative of the question (at [14]-[16]). Surfaces which were dedicated to that business would constitute floor area even if they were not within buildings, e.g. the floor area of a car yard might include all the area on which cars sat, even if it was a dirt surface whereas the floor area of a motel might include almost the whole of the demised premises, including outside areas such as the swimming pool and its surrounds, barbecue areas etc. [44] In this case the Member erred by, in effect, concluding that once a premises was used predominantly for retail business the whole of the demised premises was a ‘retail shop’. That is, in my view, incorrect. It gives no meaning to the exemption expressed in terms of ‘floor area’. [45] In accordance with the approach taken in Sorbara, which I adopt, the Member should have considered the nature of the business, that being a tavern, and then asked what type of “floor area” is apt for it, as opposed to, for example, an indoor shopping mall. The Member made no such inquiry and instead concluded that the whole of the demised premises, including all the land not otherwise used for the business, was “floor area”. It clearly was not. The land surrounding the tavern, or at least part of it, could be excluded not directly because the business was not being carried on there, but because the nature of the ground surface was such that it was foreign to what could reasonably be regarded as “floor area” even in the context of a tavern. [46] Accordingly, in my view, the Member erred in law in adopting an approach that equated “floor area” to the demised premises. Because the issue will need to be decided according to evidence and submissions about the nature of the business and the relevance of the area outside the footprint of the building, the error of law is not one that can finally determine the matter. [47] However, before I make an order remitting the matter I must first be satisfied that the Tribunal otherwise has jurisdiction to determine it. The issue is whether the applicant’s failure to undertake mediation by the QSBC, means the Tribunal lacks jurisdiction to consider the application and/or the application for interim orders. Ground two: Does the Tribunal have jurisdiction where the matter has not been mediated first by the QSBC? [48] The Member said she did not have to determine this issue because she had already decided on other grounds that the RSLA did not apply.10 [49] As I have found the Member erred in so finding, it is necessary to consider whether the Tribunal has jurisdiction if a pre-proceeding mediation has not taken place. Consideration 10 Reasons, [28]. -- 8 of 12 -- 9 [50] Section 54 of the RSLA is the sole provision in Division 1 titled ‘Preliminary’ of Part 8 Retail tenancy dispute resolution. [51] Section 54 provides: 54 Parties’ rights under this part preserved To remove any doubt, if a provision of a retail shop lease requires or permits a dispute under or about the lease to be referred to arbitration or be heard by any court or tribunal, the provision does not limit a party’s rights under …[Part 8]. [52] Part 8 contemplates the mediation of retail tenancy disputes. Section 56 provides that a party to a retail tenancy dispute that is within a mediator’s jurisdiction under s 97 may lodge a notice of dispute with the small business commissioner. If a mediation is unsuccessful either the mediator may refer11 or a party may apply12 to QCAT for an order resolving the dispute. [53] The mediator’s jurisdiction is set out in s 97 and provides, relevantly, that mediators have jurisdiction to mediate a retail tenancy dispute as long as it is not the subject of arbitration or before a court or is about the rent or outgoings payable under the lease. [54] Section 55 provides that a party to a dispute within the mediator’s jurisdiction may lodge a dispute notice with the commissioner. Sections 56 to 62 deal with the process of mediation. Section 63 and 64 then set out how, by referral from the mediator, or by application by a party, the dispute comes to QCAT. Section 64 relevantly provides that an application may be made if the lease has not ended more than one year before the dispute notice was lodged with the Commissioner, and any of the following apply: (a) the party claims that another party to a mediation agreement has not complied with the agreement within the stated time, or, if not time is stated, within 2 months after it is signed; (b) a mediator refuses to refer the dispute to QCAT because the mediator is of the opinion that the dispute is not within QCAT’s jurisdiction; (c) a court has ordered that a proceeding started in the court for the dispute be removed to QCAT or another tribunal. [55] QCAT’s jurisdiction for retail tenancy disputes is set out in s 103. Under that provision, QCAT has jurisdiction to hear retail tenancy disputes that have not been the subject of arbitration or been before a court or that is about the amount of rent payable or the amount of a lessor’s outgoings under a retail shop lease. [56] A person may withdraw a dispute notice unless a mediator has referred the dispute to QCAT under s 63 or the person has made an application about the dispute to QCAT under s 64.13 [57] After a dispute notice is lodged, the dispute must not be referred to arbitration or heard by any court unless s 94(2) applies. 11 RSLA, s 63. 12 RSLA, s 64. 13 RSLA, s 91. -- 9 of 12 -- 10 [58] The issue is whether s 103 gives a party to a retail tenancy dispute a right, independently of ss 63 and 64, to apply to QCAT. [59] The Supreme Court in Wagners Properties Pty Ltd v Atlas House Removers Pty Ltd14 has held that s 103 does confer original jurisdiction on QCAT, irrespective of whether ss 63 or 64 apply. [60] Section 103 confers a broad jurisdiction upon QCAT to hear retail tenancy disputes. There is no restriction, as there is for a s 63 referral by a mediator or a s 64 application by a party following a mediation, that the retail shop lease has not ended (whether by expiry, surrender or termination) more than 1 year before the dispute notice was lodged. [61] As Kelly J in Wagners Properties observes: Section 64 of the Retail Shop Leases Act is not the only gateway to QCAT’s original jurisdiction. Rather, s 15 of the QCAT Act provides that QCAT may exercise its broad jurisdiction conferred by s 103 of the Retail Shop Leases Act, where a person has, under the QCAT Act, applied to QCAT to exercise that jurisdiction.15 [62] Wagners Properties is consistent with an earlier decision of the then President, Wilson J in McDonald’s Australia Ltd v Emaaas Pty Ltd16 and has been followed recently by SM Fitzpatrick in the Appeal Tribunal in The Estate of Sonia Tubaro (Deceased) v Ratakhin.17 [63] I note that the Appeal Tribunal in Sandgate Taphouse Pty Ltd v SJI No 7 Pty Ltd18 dismissed an application for an interim order under s 58 or 59 of the QCAT Act on the basis no substantive proceeding had been commenced by the applicant in respect of a retail tenancy dispute under the RSLA. That issue does not, in my view, arise here where the application for substantive relief and the application for an interim order were made at the same time. [64] In conclusion, I find that the Tribunal has jurisdiction to hear this retail tenancy dispute. [65] For completeness, I will deal briefly with the other grounds of appeal. Was there an error in relying on the phrase ‘the whole of the land’ within the lease without relying on the principle of contra proferentem [66] The applicant submitted there was ambiguity in the description of what was leased to it and that, applying the principle of contra proferentem, any ambiguity should be resolved in its favour. [67] The respondent submitted that the description of the premises could not be any clearer and that the applicant’s contention that it is ambiguous, is unarguable. [68] The applicant (Farmers Arms Tavern Pty Ltd) entered into a lease with the respondent (Ms Barns) who is the registered proprietor of the premises at 9864 New England 14 [2023] QSC 40. 15 Ibid at [60]. 16 [2011] QCAT 293 which was distinguished in A & CG Lee Pty Ltd v Collier [2019] QCAT 30 on the basis that in McDonald’s the Tribunal was dealing with an application for urgent injunctive relief. 17 [2026] QCATA 30 cf. 18 [2025] QCAT 80. -- 10 of 12 -- 11 Highway, Cabarlah in Queensland (the premises) which commenced on 1 November 2023 for 5 years. The Lot is described as Lot 1 on RP166827. [69] The description of the premises is set out in item 5 of the Form 7 as follows: 5. Description of the premises being leased THE WHOLE OF THE LAND [70] “The premises” is defined in the Schedule to the Lease to mean “the Land”. “The Land” is defined to mean ‘the land described in Item 2 of the Form 7’, that is, Lot 1 on RP166827. [71] It is clear that the leased premises are Lot 1 on RP166827. That is what ‘the whole of the land’ refers to. There is no ambiguity. This ground fails. Was there an error in relying on the respondent’s submission of property size (2,659 m²) without assessing the actual retail footprint (said to be 250 m²) [72] The appellant submitted that the Member erred by relying on the lessor’s submission of property size (2,659 m²) without assessing the actual retail footprint, being approximately 250 m² within a 494 m² building. This is the portion used for retail business, which is well under the RSLA threshold of 1,000 m². [73] The respondent submitted in response that the Member was not required to assess the actual retail footprint of the applicant's business. That is because, as the Member found, the definition of retail shop in the RSLA refers to the entire leased premises, not just the part of the building used for the purpose of conducting the retail business. [74] In later submissions filed by the applicant on 9 March 2025, the appeal ground became that the Member erred in her construction of s 5A(2)(a) of the RSLA. The applicant submits that the Member erred by construing “floor area” in s 5A(2)(a) to equate to land area. [75] This ground has been considered above. I accept that the Member erred in her construction of s 5A(2), in particular by equating ‘floor area’ to the total demised premises. [76] The error also involves a factual enquiry as to what area amounts to ‘floor area’ given the nature of the retail business conducted. What area constitutes the ‘floor area’ will need to be determined by the Member allocated to hear it upon remittance. Was there an error in not having regard to the respondent’s alleged conduct [77] The appellant submitted in submissions: Mixed Error – The Member did not assess the lease renewal by conduct, including the landlord accepting rent for over 52 weeks, issuing Forms 13 and 20 only four days before the expiration date of the lease. Furthermore, Communication from Leonie Kliese shows the estate intended to finalise continuation with our business. Nor did the Member consider procedural coercion or economic duress which led us to sign a new lease under protest on 16 December 2024. [78] The respondent submitted in response on 28 July 2025 as follows: The applicant also contends that the Member erred in failing to have regard to the respondent's alleged conduct during the 'lease renewal.' The respondent -- 11 of 12 -- 12 denies that she has acted improperly or that she has engaged in coercion or duress of any kind, and relies on the documentary evidence of the communications leading up to the execution of the Lease (set out in Annexure D). As to the actions taken by the respondent since the commencement of the Lease in issuing the Notice to Remedy, those actions were taken to enforce the applicant's obligations under the Lease to pay outgoings, and were entirely legitimate. In any event, the conduct of the parties is simply not relevant to the question before the Tribunal, which was whether the Tribunal had jurisdiction to hear the dispute. [79] Given the Member’s finding, that the dispute was not a retail tenancy dispute, the Member did not err in not going on to consider these claims. This ground of appeal fails. [80] The asserted ground concerning the ‘misapplication of the RSLA’ has already been covered. I will not deal with it again. Conclusion [81] The Member made an error of law in the meaning she ascribed to ‘floor area’ in s 5A(2) of the RSLA. The application is within the Tribunal’s jurisdiction notwithstanding the ‘mediation pathways’ in s 63 or 64 were not utilised. [82] Given the error of law, the matter is remitted to the Tribunal for reconsideration. The Appeal Tribunal also makes directions for the filing of further evidence and submissions. -- 12 of 12 --