An Act to make provision with respect to the leasing of certain retail shops and the rights and obligations of lessors and lessees of those shops, and for other purposes.
Part 1 Preliminary
Note—
This Act applies to leases of retail shops, with certain limitations. To understand those limitations:
* see the definition of retail shop in section 3 for the shops to which this Act applies,
* see section 5 for the retail shops that are excluded from the operation of this Act,
* see sections 6, 6A and 84B for the leases that are excluded from the operation of this Act.
pt 1, note: Am 2005 No 90, Sch 1 [1].
1 Name of Act
This Act may be cited as the Retail Leases Act 1994.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Definitions
In this Act:assignor’s disclosure statement means a statement referred to in section 41.means an authorised deposit-taking institution within the meaning of the Banking Act 1959 of the Commonwealth.business day means any day except Saturday or Sunday or a day that is a public or bank holiday throughout the State.Director-General means the Director-General of the Department of State and Regional Development.exercise of a function includes the performance of a duty.function includes a power, authority or duty.GST has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth and includes notional GST of the kind for which payments may be made under section 5 of the Intergovernmental Agreement Implementation (GST) Act 2000 by a person who is a State entity within the meaning of that Act.key-money means any money paid to or at the direction of a lessor or lessor’s agent, by way of a premium, non-repayable bond or otherwise, or any benefit that is conferred on or at the direction of a lessor or lessor’s agent, in connection with the granting, renewal, extension or assignment of a lease (and a reference in this Act to the payment of key-money includes a reference to the conferral of any such benefit).lawyer means a barrister or solicitor.lease preparation expenses means legal or other expenses incurred by the lessor in connection with the preparation or entering into of a retail shop lease, except for registration fees under the Real Property Act 1900.lessee means the person who has the right to occupy a retail shop under a retail shop lease, and includes a sublessee and a lessee’s or sublessee’s heirs, executors, administrators and assigns.lessee’s disclosure statement means a statement referred to in section 11A.lessor means the person who grants or proposes to grant the right to occupy a retail shop under a retail shop lease, and includes a sublessor and a lessor’s or sublessor’s heirs, executors, administrators and assigns.lessor’s disclosure statement means a statement referred to in section 11.lettable area of a retail shop does not include:(a) car parking spaces, or(b) storage areas not attached to the retail shop premises where the business of the shop is or is to be carried on.licensed conveyancer means the holder of a licence in force under the Conveyancers Licensing Act 2003.listed business means a business prescribed for the purposes of paragraph (a) of the definition of retail shop (including a business for the time being specified in Schedule 1).outgoings means a lessor’s outgoings on account of any of the following:(a) the expenses directly and reasonably attributable to the operation, maintenance or repair of the building in which the retail shop is located or (in the case of a retail shop in a retail shopping centre) of any building in the retail shopping centre or any areas used in association with any such building,(b) rates, taxes, levies, premiums or charges payable by the lessor because the lessor is the owner or occupier of any such building or the land on which it is erected or is the supplier of a taxable supply (within the meaning of the A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth) in respect of any such building or land.party means the lessor or the lessee under a retail shop lease.Registrar means the Registrar of Retail Tenancy Disputes referred to in Part 8.retail shop means premises that:(a) are used, or proposed to be used, wholly or predominantly for the carrying on of one or more of the businesses prescribed for the purposes of this paragraph (whether or not in a retail shopping centre), or(b) are used, or proposed to be used, for the carrying on of any business (whether or not a business prescribed for the purposes of paragraph (a)) in a retail shopping centre.Note 1—Section 5 limits the retail shops to which this Act applies.Note 2—Clause 17 of Schedule 3 provides that the businesses specified in Schedule 1 are taken to be prescribed for the purposes of paragraph (a) of this definition until regulations prescribing businesses and repealing Schedule 1 are made.retail shop lease or lease means any agreement under which a person grants or agrees to grant to another person for value a right of occupation of premises for the purpose of the use of the premises as a retail shop:(a) whether or not the right is a right of exclusive occupation, and(b) whether the agreement is express or implied, and(c) whether the agreement is oral or in writing, or partly oral and partly in writing.Note—Sections 6, 6A and 84B limit the retail shop leases to which this Act applies.retail shopping centre means a cluster of premises that has all of the following attributes:(a) at least 5 of the premises are used wholly or predominantly for the carrying on of one or more listed businesses,(b) the premises are all owned by the same person, or have (or would if leased have) the same lessor or the same head lessor, or comprise lots within a single strata plan under the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986,(c) the premises are located in the one building or in 2 or more buildings that are either adjoining or separated only by common areas or other areas owned by the owner of the retail shops,(d) the cluster of premises is promoted as, or generally regarded as constituting, a shopping centre, shopping mall, shopping court or shopping arcade.retail specialty shop means a retail shop referred to in paragraph (a) of the definition of retail shop, other than a department store, a supermarket or premises of a kind prescribed as excluded from this definition by the regulations.specialist retail valuer means:(a) for the purposes of a valuation under this Act relating to a retail specialty shop in a retail shopping centre having both:(i) 20 or more retail specialty shops, anda valuer having not less than 5 years’ experience in valuing retail specialty shops in shopping centres of that kind, or(ii) a total of lettable areas of retail specialty shops that exceeds 1,000 square metres,(b) for the purposes of a valuation under this Act relating to any other retail specialty shop or any other retail shop, a valuer having not less than 5 years’ experience in valuing retail shops.strata levies means contributions levied under the Strata Schemes Management Act 1996 or any other Act relating to strata schemes.Tribunal means the Administrative Decisions Tribunal of New South Wales established by the Administrative Decisions Tribunal Act 1997.Note—Part 9 contains other provisions that affect the interpretation of this Act.s 3: Am 1996 No 139, Sch 2.27 [1] (am 1997 No 55, Sch 2.18 [1] [2]); 1997 No 52, Sch 1 [1]–[3]; 1998 No 169, Sch 1 [1]–[6]; 2000 No 44, Sch 9 [1] [2]; 2003 No 3, Sch 2.10; 2004 No 84, Sch 1 [1]; 2005 No 90, Sch 1 [2]–[7].
4 Notes
Notes included in this Act except where occurring in Schedules 2 and 2A are explanatory notes and do not form part of this Act.s 4: Am 2002 No 53, Sch 2.24; 2006 No 58, Sch 1.29 [1].
5 Certain retail shops excluded from the operation of this Act
This Act does not apply to any of the following retail shops:(a) shops that have a lettable area of 1,000 square metres or more,(b) shops that are used wholly or predominantly for the carrying on of a business by the lessee on behalf of the lessor,(c) any shop within premises where the principal business carried on on those premises is the operation of a cinema, bowling alley or skating rink and the shop is operated by the person who operates the cinema, bowling alley or skating rink,(d) any premises in an office tower that forms part of a retail shopping centre,(e) premises of a class or description prescribed by the regulations as exempt from this Act.s 5: Am 1997 No 52, Sch 1 [4].
6 Leases to which Act does not apply
(1) This Act does not apply to any of the following leases of retail shops:(a) (Repealed)(b) leases for a term of 25 years or more (with the term of a lease taken to include any term for which the lease may be extended or renewed at the option of the lessee),(c) leases entered into before the commencement of this section,(d) leases entered into under an option granted or agreement made before the commencement of this section,(e) any other lease of a class or description prescribed by the regulations as exempt from this Act.(2) This Act does not apply to any lease referred to in this section that is assigned to another person after the commencement of this section.Note—Part 9A provides for certain exemptions regarding Sydney (Kingsford-Smith) Airport.s 6: Am 1998 No 169, Sch 1 [7]; 2005 No 90, Sch 1 [8].s 6, note: Ins 2002 No 106, Sch 1 [1].
6A Application of Act to short-term leases
(1) Generally, Act not to apply to short-term leases Subject to subsection (2), this Act does not apply to a lease of a retail shop for a term of less than 6 months without any right for the lessee to extend the lease (whether by means of an option to extend or renew the lease or otherwise).(2) Exception for successive, extended or renewed leases for more than one year If the lessee has been in possession or entitled to be in possession of the retail shop without interruption for more than one year (whether by means of a series of 2 or more leases or by means of an extended or renewed lease or leases, or by any combination of those means), this Act applies to:(a) the lease on and from the day on which the lessee has been in possession or entitled to be in possession of the shop for more than one year, and(b) any succeeding lease or leases of the shop to the lessee, where possession or entitlement to possession is not interrupted.(3) Operation of provisions for disclosure statements Section 11 does not apply to the lease referred to in subsection (2) (a), but applies to any succeeding lease referred to in subsection (2) (b).(4) Operation of provisions for minimum 5 year term Section 16 (1) and (2) do not apply to the lease referred to in subsection (2) (a) unless the lessee notifies the lessor in writing during the term of the lease that the lessee elects to have the benefit of section 16. However, in that case, any period for which the lessee has already been in possession or entitled to possession of the retail shop without interruption is taken to be included in the term of the lease.(5) Operation of other provisions The regulations may provide that, if this Act applies to a lease because of subsection (2), specified provisions of this Act (other than sections 11 and 16 (1) and (2) and Part 2A) do not apply to or in respect of the lease or apply with prescribed modifications.(6) Certain interruptions do not break continuity The regulations may provide that interruptions for a prescribed period or of a prescribed kind are to be disregarded for the purposes of this section.(7) Holding over For the purposes of subsection (1), a provision for holding over by the lessee at the end of the term of the lease does not confer a right on the lessee to extend the lease if it operates at the discretion of each of the lessee and the lessor.(8) Assignment This section has effect in relation to a lease whether or not it is assigned to another person, but if it is assigned the period of possession or entitlement to possession by the assignee is taken to include any period of possession or entitlement to possession by the assignor and any previous assignor.s 6A: Ins 2005 No 90, Sch 1 [9].
7 This Act overrides leases
This Act operates despite the provisions of a lease. A provision of a lease is void to the extent that the provision is inconsistent with a provision of this Act. A provision of any agreement or arrangement between the parties to a lease is void to the extent that the provision would be void if it were in the lease.
8 When the lease is entered into
(1) For the purposes of this Act, a retail shop lease is considered to have been entered into when a person enters into possession of the retail shop as lessee under the lease or begins to pay rent as lessee under the lease (whichever happens first).(2) However, if both parties execute the lease before the lessee enters into possession under the lease or begins to pay rent under the lease, the lease is considered to have been entered into as soon as both parties have executed the lease.Note—Therefore, if the lessee starts to pay rent as lessee or enters into possession as lessee, the lease is considered to have been entered into even if neither party has executed the lease at that time. Money paid in advance (purportedly as rent) as a deposit to secure premises for a proposed lease does not constitute rent paid as lessee under the lease.
Part 2 Before the lease is entered into
9 Copy of lease and retail tenancy guide to be provided at negotiation stage
(1) A person must not, as lessor or on behalf of the lessor, offer to enter into a retail shop lease, invite an offer to enter into a retail shop lease or indicate by written or broadcast advertisement that a retail shop is for lease, unless:(a) the person has in his or her possession a copy of the proposed retail shop lease (in written form, but not necessarily including particulars of the lessee, the rent or the term of the lease) for the purpose of making the lease available for inspection by a prospective lessee, and(b) the person makes:(i) a copy of the proposed lease, andavailable to any prospective lessee as soon as the person enters into negotiations with the prospective lessee concerning the lease.(ii) if the regulations so provide—a copy of a retail tenancy guide prescribed by or identified in the regulations,Maximum penalty: 50 penalty units.(2) The copy of the retail tenancy guide to be made available to a prospective lessee may be or be a copy of:(a) the officially printed guide, or(b) a version of the guide printed from a website of a government department or authority or from a website identified in the regulations.s 9: Am 2005 No 90, Sch 1 [10] [11].
10 Right to compensation for pre-lease misrepresentations
(1) A party to a retail shop lease is liable to pay another party to the lease (the injured party) reasonable compensation for damage suffered by the injured party that is attributable to the injured party’s entering into the lease as a result of a false or misleading statement or representation made by the party, or any person acting under the party’s authority, with knowledge that it was false or misleading.(2) The giving of a lessor’s disclosure statement to a prospective lessee under a retail shop lease is considered to be the making of a representation by the lessor to the lessee as to the information in the disclosure statement.(2A) The making of a representation by a prospective lessee in a lessee’s disclosure statement given to a prospective lessor under a retail shop lease that the prospective lessee has sought independent advice, or as to statements or representations relied on by the prospective lessee in entering the lease, is considered to be the making of a representation by a lessee to the lessor.(3) This section extends to apply to a statement or representation made before the commencement of this section.s 10: Am 1998 No 169, Sch 1 [8] [9].
11 Lessor’s disclosure statement
(1) At least 7 days before a retail shop lease is entered into, the lessee must be given a disclosure statement for the lease. A disclosure statement is a statement in writing that contains the information, and is accompanied by the material, that is contained in or required to complete or accompany the form of disclosure statement set out in the prescribed form (but only to the extent that is relevant to the lease concerned). The layout of the disclosure statement need not comply with that of the prescribed form. However, a lessor’s disclosure statement is complete for the purposes of this section only if it has attached to it a form to be completed by the lessee in the form prescribed for the purposes of section 11A.Note—Because the disclosure statement need only include information relevant to the lease, if the retail shop is not in a retail shopping centre the disclosure statement need not include information that is relevant only to shops in retail shopping centres.(2) If a lessee was not given a disclosure statement as required by subsection (1) or if the disclosure statement that was given to the lessee was incomplete or contained information that at the time it was given was materially false or misleading, the lessee may terminate the lease by notice in writing to the lessor at any time within 6 months after the lease was entered into, unless subsection (3) prevents termination.(3) The lessee cannot terminate the lease under this section on the ground that the disclosure statement is incomplete or contains information that is materially false or misleading if:(a) the lessor has acted honestly and reasonably and ought reasonably to be excused for the failure concerned, and(b) the lessee is in substantially as good a position as the lessee would have been if the failure had not occurred.(4) If a lease is entered into by way of the renewal of a lease, a written statement (a lessor’s disclosure update) that updates the provisions of an earlier disclosure statement given to the lessee is, in conjunction with that earlier disclosure statement, considered to be a disclosure statement given for the purposes of this section at the time the lessor’s disclosure update is given.(5) The termination of a lease under this section does not affect any right, privilege, obligation or liability acquired, accrued or incurred under the lease in respect of any period before its termination.(6) A lessor under a retail shop lease is guilty of an offence if subsection (1) is not complied with in relation to the lease.Maximum penalty: 50 penalty units.Note—Clause 20 of Schedule 3 provides that the forms set out in Schedule 2 are taken to be prescribed for the purposes of sections 11 and 11A until regulations prescribing the forms and repealing Schedule 2 are made.s 11: Am 1998 No 169, Sch 1 [10]–[15]; 2005 No 90, Sch 1 [12]–[14].s 11, notes: Am 2005 No 90, Sch 1 [15].
11A Lessee’s disclosure statement
(1) Not later than 7 days after receiving a lessor’s disclosure statement, or within such further period as may be agreed with the prospective lessor, the lessor must be given a lessee’s disclosure statement. A lessee’s disclosure statement is a statement in writing that contains the information that is contained in or required to complete the form of lessee’s disclosure statement set out in the prescribed form (but only to the extent that it is relevant to the lease concerned). The layout of the lessee’s disclosure statement need not comply with that of the prescribed form.(2) If a lease is entered into by way of the renewal of a lease, a written statement (a lessee’s disclosure update) that updates the provisions of an earlier lessee’s disclosure statement given to the lessor is, in conjunction with that earlier lessee’s disclosure statement, considered to be the lessee’s disclosure statement given for the purposes of this section at the time the lessee’s disclosure update is given.(3) A lessee under a retail shop lease is guilty of an offence if subsection (1) is not complied with in relation to the lease.Maximum penalty: 50 penalty units.(4) The regulations may prescribe additional matters to be included in the form of lessee’s disclosure statement for the purposes of this section.Note—Clause 20 of Schedule 3 provides that the form set out in Part 2 of Schedule 2 is taken to be prescribed for the purposes of section 11A until regulations prescribing the form and repealing Schedule 2 are made.s 11A: Ins 1998 No 169, Sch 1 [16]. Am 2005 No 90, Sch 1 [16] [17].s 11A, note: Ins 2005 No 90, Sch 1 [18].
12 Lessee not required to pay undisclosed contributions
A provision of a retail shop lease that requires the lessee to pay or contribute towards the cost of any finishes, fixtures, fittings, equipment or services is void unless the liability to make the payment or contribution was disclosed in a disclosure statement given to the lessee in accordance with this Part.
13 Costs before fit-out
(1) This section applies if a lessee of a retail shop is liable to pay an amount for, or associated with, any works carried out by or on behalf of the lessor (before or after the lease is entered into) to enable the proposed fit-out of the shop by the lessee.(2) The maximum amount of the costs of the works, or a basis or formula with respect to those costs, is to be agreed in writing by the lessor and lessee before the lease is entered into.(3) The lessee is not liable to pay an amount in respect of the works that is more than the agreed maximum amount.(4) A reference in this section to a lessor or lessee includes a reference to a prospective lessor or prospective lessee.s 13: Rep 2004 No 84, Sch 1 [2]. Ins 2005 No 90, Sch 1 [19].
13A Tenancy fit-out statement or guide
(1) If a prospective lessor of a retail shop in a retail shopping centre requires a particular standard of construction for fit-outs to be carried out by the lessee, the relevant information relating to the standard must be contained in a tenancy fit-out statement (which may be described as a tenancy fit-out guide):(a) accompanying the lessor’s disclosure statement, or(b) accompanying or included in the lease or any agreement for the lease of the shop.(2) The lessee is not liable to carry out any fit-out of the kind referred to in subsection (1) to the extent that it is not covered by the tenancy fit-out statement.(3) This section does not affect the operation of section 38.s 13A: Ins 2005 No 90, Sch 1 [19].
14 Key-money and lease preparation expenses prohibited
(1) A person must not, as lessor or on behalf of the lessor, seek or accept the payment of key-money or lease preparation expenses in connection with the granting of a retail shop lease and any provision of a retail shop lease is void to the extent that it requires or has the effect of requiring the payment of key-money or lease preparation expenses in connection with the granting of the lease.(2) If a person contravenes this section:(a) the person is guilty of an offence and liable to a penalty not exceeding 100 penalty units, and(b) (whether or not the person is convicted of an offence under paragraph (a)) the lessee is entitled to recover from the lessor as a debt any payment made or the value of any benefit conferred by the lessee and accepted by or on behalf of the lessor in contravention of this section.(3) This section does not prevent a lessor:(a) (Repealed)(b) from receiving payment of rent in advance, or(c) from securing performance of the lessee’s obligations under the lease by requiring the provision of a security bond or other bond or a guarantee from the lessee or any other person (such as a requirement that the directors of a company that is the lessee guarantee performance of the company’s obligations under the lease), or(d) from seeking and accepting payment for goodwill of a business from a purchaser of the business, but only to the extent that the goodwill is attributable to the conduct of the business by the lessor, or(e) from seeking and accepting payment for plant, equipment, fixtures or fittings that are sold by the lessor to the lessee in connection with the granting of the lease, or(f) from seeking and accepting payment for the grant of a franchise in connection with the granting of the lease.(4) This section does not prevent a person, as lessor or on behalf of the lessor, from requiring payment by a prospective lessee or the lessee of a reasonable sum in respect of lease preparation expenses incurred in connection with making an amendment to a proposed lease that was requested by or on behalf of the prospective lessee or the lessee, other than:(a) an amendment to insert or vary the particulars of the lessee, the rent or the term, or(b) an amendment to remedy a failure by or on behalf of the lessor to include or omit a term of the proposed lease that was, at the time of the failure to include or omit, agreed between the lessor and the proposed lessee or lessee to be included in or omitted from the proposed lease, or(c) an amendment requested before the lessor is given a lessee’s disclosure statement under section 11A.(5) If a prospective lessee or the lessee is liable to pay a reasonable sum referred to in subsection (4), the lessor must provide the prospective lessee or lessee with a copy of any account presented to the lessor in respect of those expenses. The prospective lessee or lessee is not required to make any such payment until the lessor has complied with this requirement.s 14: Am 2004 No 84, Sch 1 [3]–[5]; 2005 No 90, Sch 1 [20].
15 Lease documentation
(1) A retail shop lease is taken to include provision to the following effect:(a) If the lease is not to be registered, the lessor must provide the lessee with an executed copy of the stamped lease within 1 month after the lease is returned to the lessor or the lessor’s lawyer or agent following payment of stamp duty on the lease.(b) If the lease is to be registered, the lessor must lodge the lease for registration within 1 month after the lease is returned to the lessor or the lessor’s lawyer or agent following payment of stamp duty on the lease and the lessor must provide the lessee with an executed copy of the stamped and registered lease within 1 month after the lease is returned to the lessor or the lessor’s lawyer or agent following registration of the lease.(c) The periods specified in paragraphs (a) and (b) are to be extended for delays attributable to the need to obtain any consent from a head lessor or mortgagee.(d) In paragraphs (a) and (b), registered means registered under the Real Property Act 1900.(2) This section does not affect the operation of the Stamp Duties Act 1920 or the Real Property Act 1900.
16 Minimum 5 year term
(1) The term for which a retail shop lease is entered into, together with any further term or terms provided for by any agreement or option for the acquisition by the lessee of a further term as an extension or renewal of the lease, must not be less than 5 years. An agreement or option is not taken into account if it was entered into or conferred after the lease was entered into.(2) If a lease is entered into in contravention of this section, the validity of the lease is not thereby affected but the term of the lease is extended by such period as may be necessary to prevent the lease contravening this section.Note—For example, if a lease is entered into for a term of 3 years, its term is extended by 2 years to 5 years. If a lease is entered into for a term of 2 years with an option for a further 1 year after that initial 2 years, the term of the lease is extended to 4 years (with the option for a further 1 year after that initial 4 years).(3) This section does not apply to a lease if a lawyer, or a licensed conveyancer, not acting for the lessor certifies (before, or within 6 months after, the lease was entered into) in writing that:(a) the lessee or prospective lessee requested the lawyer or conveyancer to give the certificate, and(b) the lawyer or conveyancer has explained to the lessee or prospective lessee the effect of subsections (1) and (2) and that the giving of the certificate will result in this section not applying to the lease.If the certificate is given within 6 months after the lease was entered into, then, without affecting the validity of the lease, subsection (2) ceases to apply to the lease and the extension of the term of the lease effected by that subsection accordingly ceases to be operative.(3A) The regulations may prescribe matters that must be included in a certificate under subsection (3) and procedures that must be complied with in connection with the giving or handling of such a certificate.(4) This section does not apply to a lease that results from the renewal of an earlier lease pursuant to an option conferred on the lessee, so long as there was no break in the entitlement of the lessee to possession of the retail shop and the option was granted by that earlier lease or by an agreement entered into before or at the same time as that earlier lease was entered into.Note—Because of subsection (4), a lease will not be required to be for 5 years if it is a renewal of an earlier lease (because the minimum 5 year term requirement applied to the earlier lease and the availability of the renewal will have been taken into account in determining the term of that earlier lease).(5) This section does not apply to a lease to the extent that its application would be inconsistent with the terms of any head lease under which the lessor holds the retail shop.s 16: Am 1998 No 169, Sch 1 [17]; 2005 No 90, Sch 1 [21].
Part 2A Security bonds
Division 1 Preliminary
pt 2A, divs 1–6 (ss 16A–16ZC): Ins 2005 No 90, Sch 1 [22].
16A Definitions
(1) In this Part:approved form means a form approved by the Director-General.means:(a) the Director-General, or(b) a person appointed by the Director-General to be an authorised officer:(i) for the purposes of this Part generally, or(ii) for the purposes of a particular provision of this Part in which the expression is used.money includes a cheque.prescribed proceedings means:(a) proceedings in a court (other than a prosecution) or before the Tribunal in relation to any matter which, under the terms or conditions of a lease, could, but for this Part, have given rise to a claim in relation to a security bond deposited or paid in accordance with those terms or conditions, or(b) mediation of a retail tenancy dispute concerning such a claim.security bond, in relation to a lease or proposed lease, means an amount of money that:(a) was (before or after the lease became, or the proposed lease becomes, binding on the parties) deposited with or paid to:(i) the lessor, or(ii) another person, in accordance with the directions of the lessor or the terms or conditions of the lease or proposed lease, or(iii) another person acting on behalf of the lessor, and(b) was so deposited or paid in such a way that the effect is to secure, otherwise than by payment of rent in advance, the lessor against any failure by a lessee to comply with any terms or conditions (irrespective of whether those terms or conditions are related to payment of rent or not) applying to or in connection with the lease or proposed lease.(2) An amount of money deposited with or paid to a person as referred to in paragraph (a) (ii) or (iii) of the definition of security bond in subsection (1) in respect of a lease is, for the purposes of section 16C, taken to be deposited with or paid to the lessor under that lease.(3) For the purposes of the definition of security bond in subsection (1), where:(a) money is deposited or paid as referred to in that definition in relation to a proposed lease, andthe lease entered into is taken to be the lease proposed at the time the money is deposited or paid, whether or not the lease entered into differs from the lease proposed at that time.(b) a lease between the parties, and of the premises, to which the proposal relates is entered into,pt 2A, divs 1–6 (ss 16A–16ZC): Ins 2005 No 90, Sch 1 [22].
16B Guarantees and other forms of security
(1) A retail shop lease is taken to include a provision to the effect that the lessor is not entitled to unreasonably refuse to accept a guarantee from an authorised deposit-taking institution in satisfaction of any requirement to provide a security bond or other bond or a third party guarantee for the performance of the lessee’s obligations under the lease.(2) Security provided otherwise than in the form of a security bond is not otherwise subject to the requirements of this Part.pt 2A, divs 1–6 (ss 16A–16ZC): Ins 2005 No 90, Sch 1 [22].
Division 2 Deposit of security bonds with Director-General
pt 2A, divs 1–6 (ss 16A–16ZC): Ins 2005 No 90, Sch 1 [22].
16C Deposit of security bonds with Director-General
(1) This section applies where a lessor receives a security bond for a lease or a proposed lease on or after the commencement of this section.(2) The lessor must deposit with the Director-General an amount of money equivalent to the amount of the security bond not later than 20 business days (or, where some other period is prescribed for the purposes of this subsection, that other period) after:(a) the date of receipt of the security bond, orwhichever is the later.(b) the date on which the lease became, or the proposed lease becomes, binding on the parties,(3) If a lessor’s agent receives on behalf of the lessor a security bond for a lease or proposed lease, subsection (2) extends to require the agent to deposit with the Director-General an amount of money equivalent to the amount of that security bond and so extends as if a reference in that subsection to a lessor were a reference to the agent.(4) The Director-General may, without affecting the obligation imposed on a lessor or lessor’s agent under this section, refuse to accept any amount tendered for deposit under subsection (2) that is not accompanied by a notification in or to the effect of the approved form duly completed.(5) If a security bond that is (pursuant to section 82) exempt from the operation of subsection (2) subsequently ceases to be exempt, this section applies to the bond as if it had been received when it ceased to be exempt.(6) The Minister, by instrument in writing, may, in any particular case or class of cases, extend the period prescribed by or under subsection (2).(7) Subsection (2) has effect despite the terms of a lease, any rule of law or the provisions of any other Act.pt 2A, divs 1–6 (ss 16A–16ZC): Ins 2005 No 90, Sch 1 [22].
16D Deposit of existing security bonds with Director-General
(1) This section applies in either of the following circumstances:(a) where, before the commencement of this section, a lessor under a lease or proposed lease received a deposit or payment of money that, if it had been received after that commencement, would have been a security bond,(b) where:(i) a lessor under a lease or proposed lease, to which this Act does not apply, received a deposit or payment of money as a security bond, and(ii) this Act afterwards becomes applicable to the lease because of the operation of section 6A or for any other cause.For the purposes of this section, the relevant day is the date of commencement of this section (in circumstances to which paragraph (a) applies) or the day when this Act becomes applicable to the lease (in circumstances to which paragraph (b) applies).(2) The lessor, or the lessor’s agent, must deposit with the Director-General within 3 months after the relevant day an amount of money equivalent to the current balance of the amount deposited or paid.(3) The current balance is the amount of money deposited or paid, together with any interest or similar payments, and less:(a) any amount that:(i) has been deducted by way of fees or charges by an authorised deposit-taking institution, or(ii) has been refunded or become refundable, or(iii) has become the property of the lessor, or(iv) has become subject to prescribed proceedings, orbefore or during the period referred to in subsection (2), or(v) is payable to the lessee by way of interest earned,(b) any amount of a kind prescribed by the regulations.(4) The Director-General may, without affecting the obligation imposed on a lessor under subsection (2), refuse to accept any amount tendered for deposit under that subsection that is not accompanied by a notification in or to the effect of the approved form duly completed.(5) If a security bond that is (pursuant to section 82) exempt from the operation of subsection (2), subsequently ceases to be exempt, section 16C applies to the bond as if it had been received when it ceased to be exempt, and this section ceases to apply to the bond.(6) The Minister, by instrument in writing, may, generally or in any particular case or class of cases, extend the period prescribed by subsection (2).(7) Subsection (2) has effect despite the terms of a lease, any rule of law or the provisions of any other Act.pt 2A, divs 1–6 (ss 16A–16ZC): Ins 2005 No 90, Sch 1 [22].
16E Provisions in leases relating to security bonds
(1) No one (other than the Director-General) is, in respect of any period after the date that an amount of money equivalent to the amount of a security bond is deposited with the Director-General, entitled to receive interest in respect of the bond.(2) This section does not prevent the payment under section 16H or 16I of an amount equivalent to interest as referred to in section 16M.(3) If, but for this Part, a lessor or lessee would have a claim against a security bond under the terms and conditions of a lease for an amount that cannot be recovered under any other provision of those terms and conditions:(a) the lessor may recover from the lessee as a debt an amount equivalent to the amount of the claim that the lessor would have had against that security bond, and(b) the lessee may recover from the lessor as a debt an amount equivalent to the amount of the claim that the lessee would have had against that security bond.pt 2A, divs 1–6 (ss 16A–16ZC): Ins 2005 No 90, Sch 1 [22].
Division 3 Payment out of security bonds
pt 2A, divs 1–6 (ss 16A–16ZC): Ins 2005 No 90, Sch 1 [22].
16F Interpretation
In this Division, a reference to an amount of money, in relation to a lease, is a reference to an amount of money equivalent to the amount of money, or part of the amount of money, as the case may require, held on deposit by the Director-General in respect of that lease.pt 2A, divs 1–6 (ss 16A–16ZC): Ins 2005 No 90, Sch 1 [22].
16G Application for payment
(1) An application to the Director-General to pay out an amount of money in respect of a lease may be made:(a) jointly by the lessor and the lessee, or(b) by the lessor alone, or(c) by the lessee alone.(2) An application is to be in or to the effect of the approved form and may:(a) in the case of an application of a kind referred to in section 16H (1)—be made at any time, or(b) in the case of an application of a kind referred to in section 16H (2) or (3)—be made on termination of the lease.(3) An application by the lessor alone and an application by the lessee alone may, at the discretion of the Director-General, be treated as having been made jointly by the lessor and the lessee, if the applications are substantially the same.pt 2A, divs 1–6 (ss 16A–16ZC): Ins 2005 No 90, Sch 1 [22].
16H Payment on application
(1) Payment on joint application or to other party If an application under section 16G:(a) is made jointly by a lessor and a lessee under a lease, or(b) is made by a lessor under a lease who, in that application, directs the Director-General to pay out an amount of money to the lessee, orthe Director-General must pay out an amount of money as directed in that application.(c) is made by a lessee under a lease who, in that application, directs the Director-General to pay out an amount of money to the lessor,(2) Notice to lessee of application by lessor for payment to lessor If an application under section 16G is made by a lessor alone under a lease who, in that application, directs the Director-General to pay out an amount of money to the lessor, the Director-General must give notice in writing of the receipt of the application to the lessee.(3) Notice to lessor of application by lessee for payment to lessee If an application under section 16G is made by a lessee alone under a lease who, in that application, directs the Director-General to pay out an amount of money to the lessee, the Director-General must give notice in writing of the receipt of the application to the lessor.(4) Payment to applicant lessor If a lessee to whom notice has been given under subsection (2):(a) does not, within 14 days (or, where some other period is prescribed for the purposes of this subsection, that period) after service on the lessee of the notice or the date of posting of the notice, as the case may be, notify the Director-General in writing that the lessee has commenced prescribed proceedings in relation to an amount of money referred to in the notice, orthe Director-General must pay out that amount to the lessor.(b) does so notify the Director-General, but those proceedings are discontinued,(5) Payment to applicant lessee If a lessor to whom notice has been given under subsection (3):(a) does not, within 14 days (or, where some other period is prescribed for the purposes of this subsection, that period) after service on the lessor of the notice or the date of posting of the notice, as the case may be, notify the Director-General in writing that the lessor has commenced prescribed proceedings in relation to an amount of money referred to in the notice, orthe Director-General must pay out that amount to the lessee.(b) does so notify the Director-General, but those proceedings are discontinued,(6) Payment of balance to other party If an application referred to in subsection (2) or (3) is made in respect of part of an amount of money held on deposit by the Director-General in respect of a lease, the Director-General must pay out to the other party to the lease the remainder of the amount.(7) Conflicting applications If conflicting applications are received, the Director-General may disregard the later or latest application received.(8) Notice: exceptions Without limiting subsection (7), the regulations may provide that the Director-General need not give notice under subsection (2) or (3) in such circumstances as may be prescribed.(9) Extension of period in particular cases The Director-General may in any particular case extend the period prescribed by or under subsection (4) or (5).pt 2A, divs 1–6 (ss 16A–16ZC): Ins 2005 No 90, Sch 1 [22].
16I Payment after prescribed proceedings
(1) If a lessor or lessee under a lease has, within the period prescribed by or under section 16H (4) or (5), commenced prescribed proceedings in relation to the lease and judgment in the proceedings has been entered in or given by a court or a court or the Tribunal has made an order in those proceedings for the payment of money:(a) the Director-General must:(i) on being served with or obtaining a copy of that judgment or order, andpay out an amount of money held by the Director-General on deposit in respect of the lease, as if the Director-General were the person obliged to pay under the judgment or order, or(ii) on being satisfied that the judgment or order has not been satisfied and no steps to enforce the judgment or order have been taken under any other Act,(b) where the Director-General is satisfied that:(i) the judgment has been entered or given, or the order made, andthe Director-General must pay out that amount of money to the person obliged to pay under the judgment or order.(ii) that judgment or order has been satisfied (other than as provided in paragraph (a)),(2) If mediation of a retail tenancy dispute about a security bond has been successful and a certificate has been issued under section 16N (3) setting out the terms of the agreement, the Director-General must, on being served with or obtaining a copy of the certificate, pay out in conformity with the agreement an amount of money held by the Director-General on deposit in respect of the lease concerned.(3) For all purposes, money paid out by the Director-General under subsection (1) is taken to be money paid by the person against whom the judgment was obtained or the order was made.pt 2A, divs 1–6 (ss 16A–16ZC): Ins 2005 No 90, Sch 1 [22].
16J Excess not payable
(1) This section applies where, in respect of a lease, the Director-General would, but for this section, be required to pay out an amount of money and that amount of money is in excess of the amount of money held on deposit by the Director-General in respect of the lease.(2) The Director-General:(a) must refuse to pay out the money, and(b) must treat applications for payment out of the money as having been withdrawn, and(c) must inform the applicants accordingly.(3) This section has effect despite any other provision of this Part.pt 2A, divs 1–6 (ss 16A–16ZC): Ins 2005 No 90, Sch 1 [22].
16K Appeal rights
(1) The Director-General may, not earlier than 14 days after receiving notice of a judgment or order relating to a security bond, pay out money in respect of the judgment or order even if there is a right of appeal against the judgment or order, but only if an appeal has not been lodged.(2) If an appeal has been lodged, the Director-General must not pay out money in respect of the judgment or order unless satisfied that the appeal has been withdrawn or dismissed.(3) A payment of money by the Director-General in respect of a judgment or order does not prevent an appeal being lodged.pt 2A, divs 1–6 (ss 16A–16ZC): Ins 2005 No 90, Sch 1 [22].
16L Withdrawal of application
If prescribed proceedings have not been commenced in relation to an amount of money held by the Director-General within the period prescribed by or under section 16H (4) or (5):(a) a lessor or a lessee may, at any time before a payment is made in accordance with an application made by the lessor or lessee, withdraw the application, and(b) for the purposes of this section, the application is thereupon taken never to have been made.pt 2A, divs 1–6 (ss 16A–16ZC): Ins 2005 No 90, Sch 1 [22].
16M Payment out of amount equivalent to interest
(1) This section applies to amounts paid out by the Director-General under section 16H or 16I in respect of security bonds lodged with the Director-General.(2) The total amount available to be paid out in respect of a security bond is to include an amount equivalent to interest at the rate prescribed by the regulations for the time being:(a) calculated on the minimum monthly balances from time to time of the security bond held by the Director-General, and(b) compounded as prescribed by the regulations.(3) For the purposes of subsection (2) (a), minimum monthly balance means the minimum balance during any complete named month during which money in respect of a security bond is held by the Director-General.Note—Clause 23 of Schedule 3 provides that, until regulations are made for the purposes of section 16M (2), regulations are taken to include provisions referred to in that clause.pt 2A, divs 1–6 (ss 16A–16ZC): Ins 2005 No 90, Sch 1 [22].
16N Miscellaneous provisions
(1) If the Director-General is required to pay out an amount of money to a person under this Part, the Director-General may, instead of paying out the money to that person, pay out or apply the money in accordance with that person’s directions.(2) For the purposes of this Act, a court or the Tribunal is authorised to issue:(a) a copy of any entry of a judgment or a copy of an order, in each case certified by the proper officer to be a true copy of the entry or order, and(b) where proceedings have been discontinued, a certificate to that effect signed by the proper officer.(3) If a mediation of a retail tenancy dispute about a security bond is successful, the mediator or the Registrar may issue a certificate setting out the resulting agreement.Note—The certificate may be used for the purposes of section 16I.(4) No claim other than a claim provided in this Part lies against the Director-General in respect of security bonds deposited with the Director-General.(5) This Part applies notwithstanding the terms of any agreement, any rule of law or the provisions of any other Act.pt 2A, divs 1–6 (ss 16A–16ZC): Ins 2005 No 90, Sch 1 [22].
Division 4 Enforcement provisions
pt 2A, divs 1–6 (ss 16A–16ZC): Ins 2005 No 90, Sch 1 [22].
16O Receipts to be given for security bonds
(1) A lessor, or the lessor’s agent, receiving money deposited or paid as a security bond must, at the time of receiving the money, give or cause to be given to the person making the deposit or payment a receipt for the money.(2) A receipt given under subsection (1) must contain the following particulars:(a) the names of the lessor and lessee,(b) a sufficient identification of the retail shop concerned,(c) the amount of money received,(d) the date the money was received,(e) such other particulars as are prescribed for the purposes of this subsection.(3) A lessor, or the lessor’s agent, must keep or cause to be kept, in the manner (if any) and for such term (if any) as are prescribed, a copy of each receipt given under this section.Note—Clause 24 of Schedule 3 provides that, until regulations are made for the purposes of section 16O (3), regulations are taken to include a provision referred to in that clause.pt 2A, divs 1–6 (ss 16A–16ZC): Ins 2005 No 90, Sch 1 [22].
16P Penalty notices
(1) An authorised officer may serve a penalty notice on a person if:(a) it appears to the officer that the person has committed an offence against this Part or regulations made for the purposes of this Part, and(b) the regulations prescribe the offence as being one for which a penalty notice may be issued.(2) A penalty notice is a notice to the effect that, if the person served does not wish to have the matter determined by a court, the person may pay, within the time and to the person specified in the notice, the penalty prescribed by the regulations for the offence if dealt with under this section.(3) A penalty notice may be served personally or by post.(4) If the amount of the penalty prescribed for an alleged offence is paid under this section, no person is liable to any further proceedings for the alleged offence.(5) Payment under this section is not an admission of liability for the purposes of, and does not affect or prejudice, any civil claim, action or proceeding arising out of the same occurrence.(6) The regulations may:(a) prescribe an offence for the purposes of this section by specifying the offence or by referring to the provision creating the offence, and(b) prescribe the amount of penalty for an offence if dealt with under this section, and(c) prescribe different amounts of penalty for different offences or classes of offences.(7) The amount of penalty prescribed under this section for an offence may not exceed the maximum amount of penalty that could be imposed for the offence by a court.(8) This section does not limit the operation of any other provision of, or made under, this or any other Act relating to proceedings that may be taken in respect of offences.pt 2A, divs 1–6 (ss 16A–16ZC): Ins 2005 No 90, Sch 1 [22].
16Q Offences and penalty
(1) Any person who contravenes, whether by act or omission, any provision of this Part is guilty of an offence against this Act.(2) Any person who is guilty of an offence under this Part is, on conviction, liable to a penalty not exceeding 20 penalty units.(3) This section does not apply to the Director-General or a person acting for or on behalf of the Director-General.pt 2A, divs 1–6 (ss 16A–16ZC): Ins 2005 No 90, Sch 1 [22].
16R Offences by corporations
(1) If a corporation contravenes any provision of this Part or regulations made for the purposes of this Part, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision if the person knowingly authorised or permitted the contravention.(2) A person may be proceeded against and convicted under a provision pursuant to subsection (1) whether or not the corporation has been proceeded against or been convicted under that provision.(3) Nothing in this section affects any liability imposed on a corporation for an offence committed by the corporation against this Act or the regulations.(4) This section does not apply to a person in the person’s capacity as a director of, or as a person concerned in the management of, a corporation constituted by or under an Act.pt 2A, divs 1–6 (ss 16A–16ZC): Ins 2005 No 90, Sch 1 [22].
16S Time for commencing proceedings for offences
Despite anything in any Act, proceedings for an offence against this Part or regulations made for the purposes of this Part may be brought:(a) in the case of an offence in relation to a security bond for a lease or a proposed lease—at any time before the expiration of the period of 3 years that next succeeds:(i) the commission of the offence, orwhichever is the later, or(ii) the termination of the lease,(b) in any other case—at any time before the expiration of the period of 3 years that next succeeds the commission of the offence.pt 2A, divs 1–6 (ss 16A–16ZC): Ins 2005 No 90, Sch 1 [22].
Division 5 Accounts
pt 2A, divs 1–6 (ss 16A–16ZC): Ins 2005 No 90, Sch 1 [22].
16T Accounts
The following accounts are to be established in accordance with law:(a) a Retail Leases Security Bonds Trust Account (referred to in this Division as the Trust Account),(b) a Retail Leases Security Bonds Interest Account (referred to in this Division as the Interest Account).pt 2A, divs 1–6 (ss 16A–16ZC): Ins 2005 No 90, Sch 1 [22].
16U Retail Leases Security Bonds Trust Account
(1) There is to be paid into the Trust Account all security bonds deposited with the Director-General in accordance with Division 2.(2) There is payable from the Trust Account:(a) security bonds authorised to be paid out under section 16H or 16I, and(b) any other payments authorised by or under this or any other Act to be made from that account.pt 2A, divs 1–6 (ss 16A–16ZC): Ins 2005 No 90, Sch 1 [22].
16V Retail Leases Security Bonds Interest Account
(1) There is to be paid into the Interest Account all interest received on investments of money in the Trust Account.(2) There is payable from the Interest Account:(a) the costs of, or the expenses incurred in, the administration of this Act, and(b) any other payments authorised by or under this or any other Act to be made from that account.(3) There is payable from the Interest Account such contributions as are agreed annually by the Minister and the Treasurer for payment to the Consolidated Fund.(4) Contributions referred to in subsection (3) are to be paid in the manner determined by the Treasurer.(5) There may be paid from the Interest Account all amounts payable because of the operation of section 16M.pt 2A, divs 1–6 (ss 16A–16ZC): Ins 2005 No 90, Sch 1 [22].
16W Agents of Director-General
(1) Any money received, invested or paid out by an agent of the Director-General for the purposes of this Part is taken to have been received, invested or paid out, as the case may be, by the Director-General.(2) Any money received by an agent of the Director-General for the purposes of this Part is taken to have been received by the Director-General on the day that it is received by the agent.pt 2A, divs 1–6 (ss 16A–16ZC): Ins 2005 No 90, Sch 1 [22].
Division 6 General
pt 2A, divs 1–6 (ss 16A–16ZC): Ins 2005 No 90, Sch 1 [22].
16X Exemptions
(1) For the purposes of, but without affecting the generality of, section 82, a class of security bond may be described by reference to a class of lease or a class of premises in respect of which security bonds are deposited or paid.(2) For the purposes of, but without affecting the generality of, subsection (1), a class of lease may be described by reference to periods of continuous occupancy of premises under leases or by reference to terms or conditions of leases.pt 2A, divs 1–6 (ss 16A–16ZC): Ins 2005 No 90, Sch 1 [22].
16Y Continuous occupation
For the purposes of this Part and regulations made in connection with security bonds, where the same lessee continuously occupies the same retail shop under a series of leases from the same lessor, those leases are taken to be one lease.pt 2A, divs 1–6 (ss 16A–16ZC): Ins 2005 No 90, Sch 1 [22].
16Z Annual report
The annual report of the Department of State and Regional Development is to include a report of the security bond scheme under this Part.pt 2A, divs 1–6 (ss 16A–16ZC): Ins 2005 No 90, Sch 1 [22].
16ZA Service of notices and other documents on Director-General
(1) Any notice, summons, writ or other proceeding relating to or connected with this Part to be served on the Director-General may be served:(a) by being left, orat the office of the Director-General.(b) in the case of a notice, by posting it addressed to the Director-General,(2) A letter giving a notice in writing to a lessor or lessee by post under Division 3 is taken to be properly addressed if it is addressed to that lessor or lessee at his or her last known address according to the records of the Director-General.(3) This section does not affect the generality of section 81A.pt 2A, divs 1–6 (ss 16A–16ZC): Ins 2005 No 90, Sch 1 [22].
16ZB Recovery of money
Any charge, fee or money due to the Director-General in connection with this Part may be recovered as a debt or liquidated demand in a court of competent jurisdiction.pt 2A, divs 1–6 (ss 16A–16ZC): Ins 2005 No 90, Sch 1 [22].
16ZC Regulations
(1) The regulations may make provision for or with respect to the scheme provided by this Part, including (without limiting the foregoing) the manner in which money is to be deposited with or paid by the Director-General.(2) Without affecting the generality of section 85, wherever a provision of this Part requires a form to be prescribed or a document to be in writing, the regulations may prescribe:(a) a form to be used for that purpose, and(b) where that form or document is required to be lodged with or served on or sent to any person—the manner of lodgment, service or sending, and(c) particulars or information to be provided by a person completing that form or document.(3) Regulations made for the purposes of this Part may create offences punishable by a penalty not exceeding 3 penalty units.pt 2A, divs 1–6 (ss 16A–16ZC): Ins 2005 No 90, Sch 1 [22].
Part 3 Rent and outgoings
17 Payment of rent when lessor’s fitout not completed
(1) This section applies to a retail shop lease if:(a) the liability of the lessee to pay rent under the lease commences on the lessee entering into possession of the retail shop (whether or not the lessee is required to enter into possession by a specified date), and(b) the lessor has fitout obligations under the lease (that is, the lessor is required to provide any finishes, fixtures, fittings, equipment or services before the lessee enters into possession of the shop).(2) A retail shop lease to which this section applies is taken to provide that:(a) the lessee is not liable to pay rent, or any other amount payable under the lease by the lessee (such as an amount payable in respect of outgoings), in respect of any period before the lessor has substantially complied with the lessor’s fitout obligations, and(b) the lessor is not entitled to deny the lessee possession of the retail shop merely because the lessor has not complied with the lessor’s fitout obligations under the lease.
18 Restrictions on adjustment of base rent
(1) In this section:base rent means rent, or that component of rent, which comprises a specified amount of money (whether or not there is provision for the amount to change).Note—Turnover rent (rent determined by reference to the lessee’s turnover) is not base rent because turnover rent is not a specified amount of money (it varies according to the lessee’s turnover).(2) A retail shop lease must not provide for a change to base rent less than 12 months after the lease is entered into and must not provide for a change to that rent less than 12 months after any previous change to that rent. This subsection does not apply to a change to base rent by a specified amount or specified percentage.Note—For example, subsection (2) prevents a lease providing for an increase to current market rent more than once in 12 months. It does not prevent a lease providing for the rent to increase by $100 every 6 months. Nor does it prevent a lease providing for the rent to be increased to current market rent after 12 months and then to be increased by 2% every 6 months after that.(3) A provision of a retail shop lease is void to the extent that it:(a) reserves or has the effect of reserving to one party a discretion as to which of 2 or more methods of calculating a change to base rent is to apply on a particular occasion of a change to that rent, or(b) provides for a method of calculating a change to the base rent but reserves or has the effect of reserving to one party a discretion as to whether or not the base rent is to be changed in accordance with that method on a particular occasion, or(c) provides for base rent to change on a particular occasion in accordance with whichever of 2 or more methods of calculating the change would result in the higher or highest rent.(4) If a retail shop lease provides for a change to base rent in a way that has the potential to cause that rent to decrease (such as a provision for the rent to change to current market rent), a provision of the lease is void to the extent that it:(a) prevents or enables the lessor or any other person to prevent base rent decreasing pursuant to the change, or(b) limits or specifies, or allows the limitation or specification of, the amount by which the base rent is to decrease.s 18: Am 1998 No 169, Sch 1 [18].
19 Reviews of current market rent
(1) A retail shop lease that provides for rent to be changed to current market rent is taken to include provision to the following effect:(a) The current market rent is the rent that would reasonably be expected to be paid for the shop, as between a willing lessor and a willing lessee in an arm’s length transaction (where the parties are each acting knowledgeably, prudently and without compulsion), determined on an effective rent basis, having regard to the following matters:(i) the provisions of the lease,(ii) the rent that would reasonably be expected to be paid for the shop if it were unoccupied and offered for renting for the same or a substantially similar use to which the shop may be put under the lease,(iii) the gross rent, less the lessor’s outgoings payable by the lessee,(iv) rent concessions and other benefits that are frequently or generally offered to prospective lessees of unoccupied retail shops.The current market rent is not to take into account the value of goodwill created by the lessee’s occupation or the value of the lessee’s fixtures and fittings on the retail shop premises.(b) If the lessor and the lessee do not agree as to what the actual amount of that rent is to be, the amount of the rent is to be determined by valuation carried out by a specialist retail valuer appointed by agreement of the parties to the lease, or failing agreement, by the Tribunal.(c) The matters set out in paragraph (a) are to be taken into account by a specialist retail valuer appointed under paragraph (b) in determining the amount of the rent.(d) The lessor must, not later than 14 days after being requested to do so by a specialist retail valuer appointed under paragraph (b), supply the valuer with information (where reasonably available to the lessor) requested in a list provided by the valuer to assist the valuer to determine the current market value, including the following information about leases for comparable retail shops in the same building or retail shopping centre:(i) current rental for each lease,(ii) rent free periods or any other form of incentive,(iii) recent or proposed variations of any lease,and including any other information prescribed by the regulations.(iv) outgoings for each lease,(e) A valuation for the purposes of paragraph (b) is to be in writing, to contain detailed reasons for the specialist retail valuer’s determination and to specify the matters to which the valuer had regard for the purposes of making his or her determination.(f) The parties to the lease are to pay the costs of a valuation by a specialist retail valuer appointed under paragraph (b) in equal shares.Note—The procedure provided by this section can be avoided if the parties can come to an agreement as to what the rent is to be.(1A) A party to a lease may apply to the Tribunal for the appointment of a specialist retail valuer for the purposes of subsection (1) (b).(1B) A party to a lease may make written submissions to a specialist retail valuer to assist in the valuer’s consideration of the valuation, and the valuer must consider any such written submissions.(2) A specialist retail valuer must make a valuation of a current market rent for the purposes referred to in this section not later than 1 month after receiving the information referred to in subsection (1) (d).(3) A specialist retail valuer may apply to the Tribunal under Part 8 for an order that a lessor comply with a request referred to in subsection (1) (d) to supply relevant information about leases for retail shops situated in the same building or retail shopping centre to assist the valuer to determine the rent.(4) The reasons and matters included in a valuation as referred to in subsection (1) (e) must not be set out in a way that discloses information identifying other leases or parties to other leases or relating to the business of parties to other leases. This subsection does not apply to leases between the parties to the lease for which the valuation is made or to leases whose parties consent to the disclosure of the information.s 19: Subst 1998 No 169, Sch 1 [19]. Am 2005 No 90, Sch 1 [23]–[28].s 19, notes: Subst 1998 No 169, Sch 1 [19]. Am 2005 No 90, Sch 1 [24].
19A Information supplied to valuer
(1) A specialist retail valuer who is supplied with information by a lessor or a lessee for the purpose of determining under section 19 the amount of rent under a retail shop lease must not:(a) use or permit the use of the information for any purpose other than to determine the current market rent for the lease concerned, or(b) communicate or divulge that information to any other person or permit that information to be communicated or divulged to any other person.Maximum penalty: 50 penalty units.(2) This section does not prevent the specialist retail valuer using or communicating or divulging that information, or permitting any other person to do so, in the following circumstances:(a) in accordance with a consent of both the lessor and the lessee,(b) to a court or tribunal,(c) in a way that does not disclose information identifying a particular lease or lessee, or relating to a lessee’s business, for the purpose of specifying the matters taken into consideration in making the determination concerned.(3) A specialist retail valuer who contravenes this section is liable to pay to the lessor or lessee concerned compensation for any loss or damage suffered by the lessor or lessee as a result of the information being so used or communicated or divulged. The amount of the compensation is to be the amount agreed between the valuer and the person seeking compensation or, in the event of a failure to agree, as determined by the Tribunal under Part 8.s 19A: Ins 1998 No 169, Sch 1 [20].
20 Turnover rent
(1) For the purposes of any provision of a retail shop lease that relates to the determination of rent or a component of rent by reference to turnover, turnover does not include any of the following:(a) the amount of losses incurred in the resale or disposal of merchandise reasonably and properly purchased from customers as trade-ins in the usual course of business,(b) the amount of deposits and instalments received on account of lay-bys, hire purchase or credit sales, and which are refunded to customers,(c) the amount of a refund on a transaction when the proceeds of the transaction have been included as part of turnover,(d) the amount of any service, finance or interest charges payable to any financier in connection with provision of credit to customers (other than commissions on credit or store cards),(e) the price of merchandise exchanged between shops of the lessee if the exchange is made solely for the convenient operation of the business of the lessee and not for the purpose of concluding a sale made at or from the shop to which the lease relates,(f) the price of merchandise returns to shippers, wholesalers or manufacturers,(g) the proceeds of sale of the lessee’s fixtures and fittings after their use in the conduct of business at or from the retail shop to which the lease relates,(h) the amount of discounts allowed to customers in the normal course of business,(i) the amount of uncollected credit accounts that are written off,(j) the amount paid or payable by the lessee as GST,(k) the amount of delivery charges,(l) the amount received from the sale of lottery tickets and similar tickets (other than commission on those sales).(2) The lease is taken to provide for any underpayment or overpayment of rent (resulting from actual turnover differing from projected or presumed turnover) to be adjusted within 1 month after the lessee requests the lessor in writing for such an adjustment and provides the lessor with such information as the lessor may reasonably require to make the adjustment.(3) The lessee may make a request for such an adjustment only once in the first 12 months of the lease term and thereafter only at intervals of not less than 12 months following the first request for an adjustment under the lease. This subsection does not prevent the lease providing for, or the parties otherwise agreeing to, more frequent adjustments than are provided for by this section.(4) For the purposes of this section, the concept of “turnover” includes gross takings, gross receipts, gross income and similar concepts.s 20: Am 2000 No 44, Sch 9 [3].
21 Special rent—cost of fitout
Nothing in this Act prevents a retail shop lease from providing for the payment of a special rent (in addition to any other rent) to cover the cost of fitout, fixtures, fittings and equipment installed or provided by the lessor at the lessor’s expense.
21A Rent variations for short-term leases
(1) This section applies to a lease where the term of the lease is extended by the operation of section 16 (2) and the lease does not contain provisions for the variation of the rent during the additional period. The lease is taken to contain provisions of that kind if the provisions are expressed generally so as to be capable in their terms of applying throughout the whole term of the lease.Note—This section would not apply to a lease for 3 years extended to 5 years by the operation of section 16 (2) if the lease contained provisions for “annual” increases of rent without expressly limiting the increases to the 3-year term.(2) The lease is taken to provide that the lessor may increase the rent as from the date of commencement of the additional period and thereafter annually from that date.(3) The amount of rent periodically payable resulting from an increase under subsection (2) must not exceed the base amount, adjusted in line with movements in the Consumer Price Index (All Groups Index) for Sydney and rounded up to the nearest dollar. The base amount is the corresponding amount of rent payable immediately before the date of commencement of the additional period.s 21A: Ins 2005 No 90, Sch 1 [29].
22 Recovery of outgoings from lessee
(1) The lessee under a retail shop lease is not liable to pay any amount to the lessor in respect of any outgoings except in accordance with provisions of the lease that specify:(a) the outgoings that are to be regarded as recoverable, and(b) how the amount of those outgoings will be determined and how they will be apportioned to the lessee, and(c) how those outgoings or any part of them may be recovered by the lessor from the lessee.(2) In this Part, the expression outgoings to which the lessee contributes refers to any outgoings in respect of which the lessee is liable under the lease to make any payment to the lessor.(3) Costs associated with the advertising or promotion of a retail shop or retail shopping centre, or of any business carried on there, are not outgoings for the purposes of this section.
22A Recovery by lessor of GST
(1) An agreement that was made between a lessor and a lessee before the date of commencement of this section (whether or not the agreement is contained in a lease), to the extent to which it provides for the payment by or recovery from the lessee of the amount of any GST payable in respect of the lease, is valid and is taken at all relevant times to have been validly made.(2) This section has effect despite any other provision of this Act.s 22A: Ins 2000 No 44, Sch 9 [4]. Subst 2002 No 106, Sch 1 [2].
23 Capital costs not recoverable from lessee
A provision in a retail shop lease is void to the extent that it requires the lessee to pay any amount in respect of the capital costs of the building in which the retail shop is located or (in the case of a retail shop in a retail shopping centre) of any building in the retail shopping centre or any areas used in association with any such building.
24 Depreciation not recoverable from lessee
A provision in a retail shop lease is void to the extent that it requires the lessee to pay any amount in respect of depreciation.
24A Interest and charges incurred by lessor on borrowings not recoverable from lessee
A provision in a retail shop lease is void to the extent that it requires the lessee to pay an amount in respect of interest or other charges incurred by the lessor in respect of amounts borrowed by the lessor.s 24A: Ins 1998 No 169, Sch 1 [21].
24B Rent and other costs associated with other land not recoverable from lessee
(1) A provision in a retail shop lease is void to the extent that it requires the lessee to pay an amount in respect of rent and other costs associated with unrelated land.(2) In this section:means land other than:(a) land on which the building or retail shopping centre of which the retail shop forms part is situated, or(b) land of the lessor used by or for the benefit of the lessees conducting business in that building or retail shopping centre or in connection with trading in that building or retail shopping centre.s 24B: Ins 1998 No 169, Sch 1 [21].
25 Sinking fund for major repairs and maintenance
If a retail shop lease provides for the establishment of a sinking fund to fund provision for major items of repair or maintenance, the lease is taken to include provision to the following effect:(a) Any amount paid by the lessee in respect of the lessor’s outgoings on account of those major items of repair or maintenance is to be paid into the sinking fund.(b) So much of the balance standing to the credit of the sinking fund as remains unexpended from time to time for any purpose for which the sinking fund was established is to be held by the lessor in an account bearing interest.(c) Amounts paid by the lessee for credit of the sinking fund, and the net interest earned by the lessor on the sinking fund, must not be applied by the lessor for any purpose other than payment of any outgoings for which the sinking fund was established.(d) The lessor is liable to contribute to the sinking fund any deficiency attributable to a failure by the lessor or any predecessor in title of the lessor to comply with paragraph (c).Note—The effect of paragraph (d) will be that a purchaser of the shop from the lessor will have to ensure that the sinking fund has been properly administered and maintained by the previous lessor because the incoming lessor will be liable for any shortfall.(e) The major items of repair or maintenance for which contribution to the sinking fund may be required by the lessee are limited to repair or maintenance of a building, or plant and equipment of a building, in which the retail shop is situated or, in the case of a retail shopping centre, to the buildings, plant and equipment and areas used in association with the retail shopping centre in which the retail shop is situated.(f) The lessee is not liable to contribute an amount to the sinking fund that is greater than the maximum amount permitted under the Act.(g) The lessor must keep full and accurate accounts of all money received or held by the lessor in respect of the sinking fund.(h) The lessor must give the lessee, not later than 3 months after the end of each accounting period of the lessor during the term of the lease, a sinking fund statement containing details of expenditure during the period from the fund on items for which the lessee is required to contribute. The lessor must also provide with the statement a report on the statement prepared by a registered company auditor (within the meaning of the Corporations Act 2001 of the Commonwealth).(i) A sinking fund statement provided by a lessor to a lessee is to be prepared in accordance with the relevant principles and disclosure requirements of applicable accounting standards made by the Australian Accounting Standards Board, as in force from time to time.s 25: Am 1998 No 169, Sch 1 [22]; 2001 No 34, Sch 4.53.
25A Limits on sinking funds
(1) This section applies to the lessor under a retail shop lease that provides for the establishment of a sinking fund to fund provision for major items of repair or maintenance.(2) The lessor must not establish more than one sinking fund at any one time in respect of retail shop leases for retail shops situated in the same building or retail shopping centre.(3) The lessor must not require or accept contributions to the sinking fund in respect of any retail shop situated in a retail shopping centre that total an amount that exceeds 5% of the total of the lessor’s estimated outgoings for the year concerned in respect of the retail shopping centre.(4) The lessor must not require or accept contributions by a lessee to the sinking fund if the amount outstanding to the credit of the sinking fund is more than $250,000.Maximum penalty: 50 penalty units.s 25A: Ins 1998 No 169, Sch 1 [23]. Am 2001 No 112, Sch 3.15.
25B Sinking fund repayment
(1) This section applies to the lessor under a retail shop lease of a retail shop that provides for the establishment of a sinking fund to fund provision for major items of repair or maintenance.(2) If the building or retail shopping centre in which the retail shop is located is destroyed or demolished or, in the case of a retail shopping centre, the retail shopping centre ceases to operate, the lessor must repay to each lessee liable to contribute to the sinking fund the amount payable to the lessee.(3) The amount payable to the lessee is that proportion of the total amount outstanding to the credit of the sinking fund that is equal to the proportion that the lettable area of the lessee’s retail shop bears to the total lettable area of all the shops in respect of which contributions are required to be made to the fund.(4) In this section:lessor and lessee mean the persons who were the lessor and lessee, respectively, under a retail shop lease immediately before the destruction or demolition of the building, or immediately before the retail shopping centre ceased to operate.s 25B: Ins 1998 No 169, Sch 1 [23].
26 Limit on recovery of land tax
(1) A provision of a retail shop lease which requires the lessee to pay money to the lessor in respect of outgoings attributable to land tax payable by the lessor is taken to include provision that the liability of the lessee is not to exceed the amount of that liability had the amount of land tax payable by the lessor been assessed on the basis that:(a) the land concerned was the only land owned by the lessor, and(b) the land concerned was not subject to a special trust (within the meaning of the Land Tax Management Act 1956), and(c) the lessor was not a company classified under section 29 of that Act as a non-concessional company.(2) The land concerned is the land on which the building or retail shopping centre of which the retail shop forms part is situated, together with all the other land of the lessor used or available for use by or for the benefit of the lessees conducting business in that building or retail shopping centre or in connection with trading in that building or retail shopping centre. In the case of a shop comprising a strata lot under the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986, the land concerned is the strata lot.s 26: Am 1996 No 139, Sch 2.27 [2] (am 1997 No 55, Sch 2.18 [1] [2]).
27 Outgoings estimates
A retail shop lease is taken to include provision to the following effect:(a) the lessor must give the lessee a written estimate of the outgoings to which the lessee contributes under the lease, itemising those outgoings under the item descriptions used in the list of outgoings in the form of lessor’s disclosure statement prescribed for the purposes of section 11,(b) the estimate of outgoings must be given to the lessee in respect of each accounting period of the lessor during the term of the lease and must be given before the lease is entered into and thereafter during the term of the lease at least 1 month before the commencement of the accounting period concerned,(c) if the shop is in a retail shopping centre, the estimate of outgoings is to include:(i) a statement of management fees, broken down into the fees to be paid by the lessee towards the administration costs of running the centre and other fees paid to the management company, and(ii) a statement of cleaning costs to be paid by the lessee, broken down into the costs of consumables and other costs, and(iii) any other particulars prescribed by the regulations.s 27: Am 1998 No 169, Sch 1 [24]; 2004 No 84, Sch 1 [6]. Subst 2005 No 90, Sch 1 [30].
28 Outgoings statements
(1) A retail shop lease is taken to include provision to the following effect:(a) The lessor must give the lessee a written statement (an outgoings statement) that details all expenditure by the lessor in each accounting period of the lessor during the term of the lease on account of outgoings to which the lessee is required to contribute.(b) If the shop is in a retail shopping centre, the outgoings statement must include a statement of the current gross lettable area of the shopping centre and details of any material change in that gross lettable area during the period to which the outgoings statement relates.(b1) If the shop is in a retail shopping centre, the outgoings statement is to include:(i) a statement of total management fees paid in respect of the centre, broken down into the fees paid towards the administration costs of running the centre and other fees paid to the management company, and(ii) a statement of total cleaning costs paid by the lessor, broken down into the costs of consumables and other costs, and(iii) any other particulars prescribed by the regulations.(c) The outgoings statement is to be prepared in accordance with relevant principles and disclosure requirements of applicable accounting standards made by the Australian Accounting Standards Board, as in force from time to time.(d) The outgoings statement is to be given to the lessee within 3 months after the end of the accounting period to which it relates.(e) The outgoings statement is to be accompanied by a report (an auditor’s report) on the statement prepared by a registered company auditor (within the meaning of the Corporations Act 2001 of the Commonwealth).(f) The auditor’s report is to include a statement by the auditor as to whether or not the outgoings statement correctly states the expenditure by the lessor during the accounting period concerned in respect of outgoings to which the lessee is required to contribute, and as to whether or not the total amount of estimated outgoings for that period (as shown in the estimate of outgoings given to the lessee) exceeded the total actual expenditure by the lessor in respect of those outgoings during that period.(g) The outgoings statement may be a composite statement (that is, it may relate to more than one lessee) so long as each lessee to which it relates is able to ascertain from the statement the information required by paragraph (a) that is relevant to that lessee.(h) The outgoings statement need not be accompanied by an auditor’s report if the statement does not relate to any outgoings other than land tax, water, sewerage and drainage rates and charges, local council rates and charges, insurance and strata levies, and it is accompanied by copies of assessments, invoices, receipts or other proof of payment in respect of all expenditure by the lessor as referred to in paragraph (a).(2) An auditor preparing a report under subsection (1) (e) or the lessor must ensure that the lessee is given a reasonable opportunity to make a written submission to the auditor on the accuracy of the lessor’s proposed outgoings statement. The auditor need not contact the lessee for the purposes of this subsection if the lessor advises the auditor that the lessor has informed the lessee of the lessee’s opportunity under this subsection.(3) The auditor must consider any written submissions made pursuant to subsection (2).s 28: Subst 1997 No 52, Sch 1 [5]. Am 2001 No 34, Sch 4.53; 2005 No 90, Sch 1 [31]–[33].
28A Non-provision of outgoings estimate or statement
(1) A lessee is entitled to withhold payment of contributions for outgoings if:(a) the lessor has failed to give the lessee a written estimate of outgoings required under section 27 or an outgoings statement required under section 28, and(b) the lessee has, at or after the expiry of the time when the estimate or statement was required to be given to the lessee, requested the lessor in writing to furnish the estimate or statement to the lessee, and(c) the lessor’s failure has continued for 10 business days after the request was made.(2) The lessee must pay the withheld contributions within 28 days after the lessor furnishes the estimate or statement.(3) The lessor is not entitled to recover interest or late payment charges in respect of contributions withheld in accordance with this section.(4) The lessee is not in breach of the retail shop lease for acting in accordance with this section.(5) This section does not affect any other rights that the lessee has in connection with the lessor’s failure to provide the estimate or statement.s 28A: Ins 2005 No 90, Sch 1 [34].
29 Adjustment of contributions to outgoings based on actual expenditure properly and reasonably incurred
A retail shop lease is taken to include provision to the following effect:(a) There is to be an adjustment between the lessor and the lessee for each accounting period of the lessor to take account of any under-payment or over-payment by the lessee in respect of outgoings during the period. The adjustment is to take place within 1 month after the lessor gives the lessee the outgoings statement referred to in section 28 for the period concerned and must in any event take place within 4 months after the end of that period.(b) The adjustment is to be calculated on the basis of the difference between the total amount of outgoings in respect of which the lessee contributed (that is, the estimated total expenditure by the lessor on outgoings during the period concerned) and the total amount actually expended by the lessor in respect of those outgoings during that period, but taking into account only expenditure properly and reasonably incurred by the lessor in payment of those outgoings.(c) Contribution by the lessee towards, and expenditure by the lessor in respect of, repairs and maintenance is not to be taken into account for the purposes of the adjustment to the extent that the contribution is, and the expenditure is in respect of, contributions required to be paid into a sinking fund as referred to in section 25.s 29: Am 1997 No 52, Sch 1 [6].
30 Non-specific outgoings contribution limited by ratio of lettable area
(1) A lessee under a retail shop lease in a retail shopping centre is not liable to contribute towards a non-specific outgoing of the lessor (that is, an outgoing not specifically referable to any particular shop in the retail shopping centre) unless the shop is one of the shops to which the outgoing is referable, and is not liable to contribute an amount in excess of an amount calculated by multiplying the total amount of that outgoing by the ratio of the lettable area of the shop to the total of the lettable areas of all the retail shops to which the outgoing is referable.(2) An outgoing is referable to a retail shop if the shop is one of the shops that enjoys or shares the benefit resulting from the outgoing.(3) An outgoing on account of GST payable by the lessor in respect of rent payable under a lease is not a non-specific outgoing of the lessor for the purposes of this section.Note—This section prevents a lessee being required to make up for any shortfall in outgoings recouped by the lessor that is attributable to vacant shops or concessions allowed to other lessees.s 30: Am 2002 No 106, Sch 1 [3].
31 Reviews of current market rent
(1) A retail shop lease that provides an option to renew or extend the lease at current market rent is taken to include provision to the following effect:(a) The current market rent is the rent that would reasonably be expected to be paid for the shop, as between a willing lessor and a willing lessee in an arm’s length transaction (where the parties are each acting knowledgeably, prudently and without compulsion), determined on an effective rent basis, having regard to the following matters:(i) the provisions of the lease,(ii) the rent that would reasonably be expected to be paid for the shop if it were unoccupied and offered for renting for the same or a substantially similar use to which the shop may be put under the lease,(iii) the gross rent, less the lessor’s outgoings payable by the lessee,(iv) rent concessions and other benefits that are frequently or generally offered to prospective lessees of unoccupied retail shops.The current market rent is not to take into account the value of goodwill created by the lessee’s occupation or the value of the lessee’s fixtures and fittings on the retail shop premises.(b) If the lessor and the lessee do not agree as to what the actual amount of that rent is to be, the amount of the rent is to be determined by valuation carried out by a specialist retail valuer appointed by agreement of the parties to the lease, or failing agreement, by the Tribunal.(c) The matters set out in paragraph (a) are to be taken into account by a specialist retail valuer appointed under paragraph (b) in determining the amount of the rent.(d) The lessor must, not later than 14 days after being requested to do so by a specialist retail valuer appointed under paragraph (b), supply the valuer with information (where reasonably available to the lessor) requested in a list provided by the valuer to assist the valuer to determine the current market value, including the following information about leases for comparable retail shops in the same building or retail shopping centre:(i) current rental for each lease,(ii) rent free periods or any other form of incentive,(iii) recent or proposed variations of any lease,and including any other information prescribed by the regulations.(iv) outgoings for each lease,(e) A valuation for the purposes of paragraph (b) is to be in writing and to contain detailed reasons for the specialist retail valuer’s determination and to specify the matters to which the valuer had regard for the purposes of making his or her determination.(f) The parties to the lease are to pay the costs of a valuation by a specialist retail valuer appointed under paragraph (b) in equal shares.Note—The procedure provided by this section can be avoided if the parties can come to an agreement as to what the rent is to be.(1A) A party to a lease may apply to the Tribunal for the appointment of a specialist retail valuer for the purposes of subsection (1) (b).(1B) A party to a lease may make written submissions to a specialist retail valuer to assist in the valuer’s consideration of the valuation, and the valuer must consider any such written submissions.(2) A specialist retail valuer must make a valuation of a current market rent for the purposes referred to in this section not later than 1 month after receiving the information referred to in subsection (1) (d).(3) A specialist retail valuer may apply to the Tribunal under Part 8 for an order that a lessor comply with a request referred to in subsection (1) (d) to supply relevant information about leases for retail shops situated in the same building or retail shopping centre to assist the valuer to determine the rent.(4) The reasons and matters included in a valuation as referred to in subsection (1) (e) must not be set out in a way that discloses information identifying other leases or parties to other leases or relating to the business of parties to other leases. This subsection does not apply to leases between the parties to the lease for which the valuation is made or to leases whose parties consent to the disclosure of the information.s 31: Subst 1998 No 169, Sch 1 [25]. Am 2005 No 90, Sch 1 [35]–[40].s 31, notes: Subst 1998 No 169, Sch 1 [25]. Am 2005 No 90, Sch 1 [36].
31A Information supplied to valuer
(1) A specialist retail valuer who is supplied with information by a lessor or a lessee for the purpose of determining under section 31 the amount of rent under a retail shop lease must not:(a) use or permit the use of the information for any purpose other than to determine the current market rent for the lease concerned, or(b) communicate or divulge that information to any other person or permit that information to be communicated or divulged to any other person.Maximum penalty: 50 penalty units.(2) This section does not prevent the specialist retail valuer using or communicating or divulging that information, or permitting any other person to do so, in the following circumstances:(a) in accordance with a consent of both the lessor and the lessee,(b) to a court or tribunal,(c) in a way that does not disclose information identifying a particular lease or lessee, or relating to a lessee’s business, for the purpose of specifying the matters taken into consideration in making the determination concerned.(3) A specialist retail valuer who contravenes this section is liable to pay to the lessor or lessee concerned compensation for any loss or damage suffered by the lessor or lessee as a result of the information being so used or communicated or divulged. The amount of the compensation is to be the amount agreed between the valuer and the person seeking compensation or, in the event of a failure to agree, as determined by the Tribunal.s 31A: Ins 1998 No 169, Sch 1 [26].
32 Opportunity for lessee to have current market rent determined early
(1) A retail shop lease which provides an option to renew or extend the lease at current market rent is taken to include provision to the following effect:(a) The lessee is entitled to request a determination of the current market rent at any time within the period that begins 6 months before and ends 3 months before the last day on which the option may be exercised under the lease, but may not make such a request if the lessor and the lessee have already agreed as to what the actual amount of that rent is to be.(b) The lessee makes such a request by giving notice in writing of the request to the lessor.(c) If the lessee makes such a request, the amount of the current market rent is to be determined (as at the time of the request) in accordance with the provisions of section 31, and the period within which the lessee must exercise the option is varied so that the last day on which the option may be exercised is 21 days after the determination of rent is made and notified to the lessee in writing.If the determination of rent is not notified within 21 days before the end of the term of the lease, the lessee may exercise the option within 21 days after the determination is notified in writing to the lessee (whether before or after the term of the lease), and the term of the lease is extended by the appropriate period to enable the lessee to exercise the option after the lease would otherwise expire.(d) The parties agree that the amount of rent determined under paragraph (c) is the current market rent for the purposes of the exercise of the option (even though it may be a determination of the current market rent as at some earlier time).(e) The parties to the lease are to pay the costs of the determination of current market rent in equal shares.(2) If the term of the lease is 12 months or less, the periods of 6 months and 3 months in this section are shortened to 3 months and 30 days respectively.s 32: Am 2005 No 90, Sch 1 [41] [42].
32A Review of current market rent determinations
(1) Application for review A party to a lease may apply to the Tribunal for the appointment of two specialist retail valuers to conduct a review of a determination of the current market rent made by a specialist retail valuer made under section 19 or 31.(2) The application for a review must be made within 21 days after the party first received a copy of the determination.Note—Subsection (13) provides another opportunity to make an application for a review if the decision on the review is set aside.(3) Review by and decision of valuers The specialist retail valuers may conduct the review and may jointly:(a) affirm the reviewed determination, or(b) vary the reviewed determination.(4) Subject to this section, the provisions of sections 19 and 19A or sections 31 and 31A, as the case requires, apply (with any necessary adaptations) to and in respect of the specialist retail valuers in the same way as those provisions apply to and in respect of the original specialist retail valuer.(5) Without limiting subsection (4), the specialist retail valuers jointly and severally have the powers and obligations of the original specialist retail valuer in connection with obtaining information under the provisions referred to in that subsection.(6) The specialist retail valuers are to conduct the review and reach their decision not later than one month after they are notified of their appointment.(7) If the specialist retail valuers are unable to agree by the end of the month referred to in subsection (6), the valuers are taken to have decided to affirm the determination.(8) Access to original determination and information It is the duty of the specialist retail valuer (the original valuer) who made the original determination, and of each party to the lease, to ensure that the specialist retail valuers reviewing the determination are given access to:(a) the original determination, andunless the specialist retail valuers indicate that they do not require access to the determination or information to be given to them under this subsection.(b) information relating to the matters, specified in the original determination, to which the original valuer had regard to in making the original determination, to the extent that the information is available to the original valuer or party,(9) Costs of review The following provisions apply to the costs of the review by the specialist retail valuers:(a) the parties to the lease are to pay the costs of the review in equal shares, unless paragraph (b) applies,(b) the party who applies for the appointment of the specialist retail valuers is to pay the costs of the review, if the current market value is jointly determined by the specialist retail valuers to be the same as or within 10 per cent of the amount specified in the original determination,(c) section 88 of the Administrative Decisions Tribunal Act 1997 does not apply to the costs of the review.(10) Effect, finality and setting aside of decision A varied determination has effect as if it were the original determination.(11) Subject to subsection (12), the joint decision of the specialist retail valuers is final and binding on the parties to the lease.(12) The Tribunal:(a) may, on application made by a party to the lease within 21 days after the decision of the specialist retail valuers is given, order that the decision be set aside, if satisfied that the valuers have manifestly made a fundamental error warranting such an order, and(b) may also order that the costs of the review are not payable by the parties or, if paid, are to be refunded.The decision is not otherwise reviewable by or appellable to the Tribunal.(13) If the decision is set aside, a party to the lease may make a fresh application to the Tribunal under subsection (1) in relation to the original determination within the period of 21 days after the date of the order setting it aside, and this section applies accordingly.s 32A: Ins 2005 No 90, Sch 1 [43].
Part 4 Alterations and other interference with the shop
33 Lessee to be given notice of alterations and refurbishment
A retail shop lease is taken to provide that the lessor must not commence to carry out any alteration or refurbishment of the building or retail shopping centre of which the retail shop forms part which is likely to adversely affect the business of the lessee unless:(a) the lessor has notified the lessee in writing of the proposed alteration or refurbishment at least 2 months before it is commenced, or(b) the alteration or refurbishment is necessitated by an emergency and the lessor has given the lessee the maximum period of notice that is reasonably practicable in the circumstances.
34 Lessee to be compensated for disturbance
(1) A retail shop lease is taken to provide that if the lessor:(a) inhibits access of the lessee to the shop in any substantial manner, or(b) takes any action that would inhibit or alter, to a substantial extent, the flow of customers to the shop, or(c) unreasonably takes any action that causes significant disruption of, or has a significant adverse effect on, trading of the lessee in the shop, or(d) fails to take all reasonable steps to prevent or put a stop to anything that causes significant disruption of, or which has a significant adverse effect on, trading of the lessee in the shop and that is attributable to causes within the lessor’s control, or(e) fails to rectify any breakdown of plant or equipment under the lessor’s care or maintenance, orand the lessor does not rectify the matter as soon as reasonably practicable after being requested in writing by the lessee to do so, the lessor is liable to pay the lessee reasonable compensation for any loss or damage (other than nominal damage) suffered by the lessee as a consequence.(f) in the case of a shop within a retail shopping centre, fails to adequately clean, maintain or repair the retail shopping centre (including common areas),(2) In determining whether a lessor has acted unreasonably for the purposes of subsection (1) (c), due consideration is to be given to whether the lessor has acted in accordance with recognised shopping centre management practices.(3) A retail shop lease may include a provision preventing or limiting a claim for compensation under the provisions implied by this section in respect of any particular disturbance if a written statement specifically drawing the attention of the lessee to details of the anticipated disturbance was given to the lessee before the lease was entered into, and the statement included the following:(a) a specific description of the nature of the disturbance,(b) a statement assessing the likelihood of the disturbance occurring, including an indication of the basis on which the assessment was reached,(c) a statement of the timing, duration and effect of the disturbance, so far as they can be predicted.(3A) A general statement to the effect that disturbances may occur during the term of the lease without setting out the matters referred to in subsection (3) is not a statement to which that subsection applies.(4) The provisions implied by this section do not apply to any action taken by the lessor:(a) as a reasonable response to an emergency situation, or(b) in compliance with any duty imposed by or under an Act or resulting from a requirement imposed by a public or local authority acting under the authority of an Act.s 34: Am 2005 No 90, Sch 1 [44].s 34, note: Rep 2005 No 90, Sch 1 [44].
34A Relocation
If a retail shop lease contains provision that enables the business of the lessee to be relocated, the lease is taken to include provision to the following effect:(a) The lessee’s business cannot be required to be relocated unless and until the lessor has provided the lessee with details of a proposed refurbishment, redevelopment or extension sufficient to indicate a genuine proposal that is to be carried out within a reasonably practicable time after relocation of the lessee’s business and that cannot be carried out practicably without vacant possession of the lessee’s shop.(b) The lessee’s business cannot be required to be relocated unless the lessor has given the lessee at least 3 months written notice of relocation and that notice gives details of an alternative shop to be made available to the lessee within the retail shopping centre. Such a notice is referred to as a relocation notice.(c) The lessee is entitled to be offered a new lease of the alternative shop on the same terms and conditions as the existing lease except that the term of the new lease is to be for the remainder of the term of the existing lease. The rent for the alternative shop is to be the same as the rent for the existing retail shop, adjusted to take into account the difference in the commercial values of the existing retail shop and the alternative shop at the time of relocation.Note—Paragraph (c) only specifies the minimum entitlements that the lessee can insist on. It does not prevent the lessee from accepting other arrangements offered by the lessor when the details of a relocation are being negotiated.(d) If a relocation notice is given to the lessee, the lessee may terminate the lease within 1 month after the relocation notice is given by giving written notice of termination to the lessor, in which case the lease is terminated 3 months after the relocation notice was given unless the parties agree that it is to terminate at some other time.(e) If the lessee does not give a notice of termination as referred to in paragraph (d), the lessee is taken to have accepted the offer of a lease as referred to in paragraph (c), unless the parties have agreed to a lease on some other terms.(f) The lessee is entitled to payment by the lessor of the lessee’s reasonable costs of the relocation, including but not limited to:(i) costs incurred by the lessee in dismantling fittings, equipment or services, and(ii) costs incurred by the lessee in replacing, re-installing or modifying finishes, fittings, equipment or services to the standard existing immediately before the relocation but only to the extent that they are reasonably required in the premises to which the lessee’s business is relocated, and(iii) legal costs incurred by the lessee.(g) If the lessor and the lessee do not agree as to what the actual amount of reasonable costs of the relocation are to be, the amount of the costs is to be determined by a quantity surveyor:(i) appointed by agreement between the parties to the lease, or(ii) failing agreement, appointed by the person for the time being holding or acting in the office of President of the Australian Institute of Quantity Surveyors.Note—This section does not prevent the parties negotiating a new 5 year lease for the purpose of relocating the lessee. Paragraph (f) only specifies the minimum entitlements that the lessee can insist on and the parties can come to some other arrangement for the payment or sharing of the lessee’s relocation costs when the details of a relocation are being negotiated.s 34A: Ins 1998 No 169, Sch 1 [27]. Am 2005 No 90, Sch 1 [45] [46].
35 Demolition
(1) If a retail shop lease provides for termination of the lease on the grounds of proposed demolition of the building of which the retail shop forms part, the lease is taken to include provision to the following effect:(a) The lease cannot be terminated on that ground unless and until the lessor has provided the lessee with details of the proposed demolition sufficient to indicate a genuine proposal to demolish that building within a reasonably practicable time after the lease is to be terminated.(b) The lease cannot be terminated by the lessor on that ground without at least 6 months written notice of termination.(c) If notice of termination on that ground is given to the lessee, the lessee may terminate the lease by giving the lessor not less than 7 days written notice of termination at any time within 6 months before the termination date notified by the lessor.(2) If the lease is for a term of 12 months or less, the period of 6 months in subsection (1) (b) and (c) is shortened in each case to 3 months.(3) If a retail shop lease is terminated on such a ground and demolition of the building is not carried out within a reasonably practicable time after the termination date notified by the lessor, the lessor is liable to pay the lessee reasonable compensation for damage suffered by the lessee as a consequence of the early termination of the lease, unless the lessor establishes that at the time notice of termination was given by the lessor there was a genuine proposal to demolish the premises within that time.(3A) If a retail shop lease is terminated on such a ground, the lessor is liable to pay the lessee compensation for the fitout of the retail shop if the lessee is required under the lease to fit out the retail shop, whether or not the demolition of the building is carried out.(4) For the purposes of this section, demolition of the building of which a retail shop forms part includes any substantial repair, renovation or reconstruction of the building that cannot be carried out practicably without vacant possession of the shop.s 35: Am 1998 No 169, Sch 1 [28].
36 Damaged premises
(1) A retail shop lease is taken to provide for the following if the shop or the building of which the shop forms part is damaged:(a) The lessee is not liable to pay rent, or any amount payable to the lessor in respect of outgoings or other charges, that is attributable to any period during which the shop cannot be used under the lease or is inaccessible due to that damage.(b) If the shop is still useable under the lease but its useability is diminished due to the damage, the lessee’s liability for rent and any amount in respect of outgoings attributable to any period during which useability is diminished is reduced in proportion to the reduction in useability caused by the damage.(c) If the lessor notifies the lessee in writing that the lessor considers that the damage is such as to make its repair impracticable or undesirable, the lessor or the lessee may terminate the lease by giving not less than 7 days notice in writing to the other and no compensation is payable in respect of that termination.(d) If the lessor fails to repair the damage within a reasonable time after the lessee requests the lessor in writing to do so, the lessee may terminate the lease by giving not less than 7 days notice in writing of termination to the lessor.(e) Paragraphs (a)–(d) do not affect any right of the lessor to recover damages from the lessee in respect of any damage or destruction to which those paragraphs apply.(2) A retail shop lease must not contain any provision the effect of which is to limit any liability of a party to the lease to pay compensation to another party to the lease in respect of damage to the shop or the building of which the shop forms part.(3) Nothing in this section prevents the parties to a lease from terminating the lease by agreement if the shop or the building of which it forms part is damaged or destroyed.
37 Employment restriction
A retail shop lease must not contain any provision which limits or has the effect of limiting the lessee’s right to employ persons of the lessee’s own choosing, but this section does not prevent the lease containing any one or more of the following provisions:(a) a provision specifying minimum standards of competence and behaviour for persons employed in the shop or other persons (such as contractors) doing work in the shop,(b) a provision prohibiting work from being carried out on specified items of the lessor’s property,(c) a provision requiring the lessee to comply with the requirements of any industrial award, industrial agreement or enterprise agreement (such as a construction site agreement) affecting any retail shopping centre in which the shop is situated.
38 Refurbishment and refitting
Provision in a retail shop lease requiring the lessee to refurbish or refit the shop is void unless it gives such details of the required refurbishment or refitting as may be necessary to indicate generally the nature, extent and timing of the required refurbishment or refitting.
Part 5 Assignment and termination
39 Grounds on which consent to assignment can be withheld
(1) The lessor is entitled to withhold consent to the assignment of a retail shop lease in any of the following circumstances (and is not entitled to withhold that consent in any other circumstances):(a) if the proposed assignee proposes to change the use to which the shop is put,(b) if the proposed assignee has financial resources or retailing skills that are inferior to those of the proposed assignor,(c) if the lessee has not complied with section 41 (Procedure for obtaining consent to assignment),(d) the circumstances set out in section 80E.(2) This section does not preclude any right of the lessor to require payment of a reasonable sum in respect of any legal or other expenses incurred in connection with the consent, so long as the lessor has substantiated those expenses to the lessee at the request of the lessee.s 39: Am 2002 No 106, Sch 1 [4].
40 Key-money on assignment prohibited
(1) A person must not, as lessor or on behalf of the lessor, seek or accept the payment of key-money in connection with the granting of consent to the assignment of a retail shop lease and any provision of a retail shop lease is void to the extent that it requires or has the effect of requiring the payment of key-money in connection with the granting of consent to the assignment of the lease.(2) If a person contravenes this section:(a) the person is guilty of an offence and liable to a penalty not exceeding 100 penalty units, and(b) (whether or not the person is convicted of an offence under paragraph (a)) the lessee is entitled to recover from the lessor as a debt any payment made or the value of any benefit conferred by the lessee and accepted by or on behalf of the lessor in contravention of this section.(3) This section does not preclude any right of the lessor to require payment of a reasonable sum in respect of any legal or other expenses incurred in connection with such a consent. The lessee is entitled to have those expenses substantiated by the lessor before making such a payment.(4) This section does not prevent a lessor from securing performance of the assignee’s obligations under the assigned lease by requiring the provision of a security bond or other bond or a guarantee from the assignee or any other person.Note—This section and section 39 do not prevent the lessor and a proposed assignee entering into a new lease of the retail shop as an alternative to an assignment of the existing lease.s 40: Am 2005 No 90, Sch 1 [47].
41 Procedure for obtaining consent to assignment
A retail shop lease is taken to include the following provisions:(a) A request for the lessor’s consent to an assignment of the lease must be made in writing and the lessee must provide the lessor with such information as the lessor may reasonably require concerning the financial standing and business experience of the proposed assignee. The lessee may provide the lessor with a copy of a statement in writing that contains the information that is contained in or required to complete the prescribed form that has been provided to the proposed assignee. The statement may be provided if the assignment is in connection with the lease of a retail shop that will continue to be an ongoing business. The layout of the statement need not comply with that of the prescribed form.(b) Before requesting the consent of the lessor to a proposed assignment of the lease, the lessee must furnish the proposed assignee with a copy of any disclosure statement given to the lessee in respect of the lease, together with details of any changes that have occurred in respect of the information contained in that disclosure statement since it was given to the lessee (being changes of which the lessee is aware or could reasonably be expected to be aware). The lessee may provide the proposed assignee with a copy of a statement in writing that contains the information that is contained in or required to complete the prescribed form. The statement may be provided if the assignment is in connection with the lease of a retail shop that will continue to be an ongoing business. The layout of the statement need not comply with that of the prescribed form.(c) For the purpose of enabling the lessee to comply with paragraph (b), the lessee is entitled to request the lessor to provide the lessee with a copy of the disclosure statement concerned and, if the lessor is unable or unwilling to comply with such a request within 14 days after it is made, paragraph (b) does not apply to the lessee.(d) The lessor must deal expeditiously with a request for consent and is taken to have consented to the assignment if:(i) the lessee has complied with paragraphs (a) and (b), and(ii) the lessor has not, within 28 days (or another period prescribed instead by the regulations) after the request was made or after the lessee complied with those paragraphs, whichever is the later, given notice in writing to the lessee either consenting or withholding consent.Note—Clause 20 of Schedule 3 provides that the form set out in Schedule 2A is taken to be prescribed for the purposes of section 41 until regulations are made prescribing the form and repealing Schedule 2A.s 41: Am 1998 No 169, Sch 1 [29] [30]; 2005 No 90, Sch 1 [48] [49].s 41, note: Ins 2005 No 90, Sch 1 [50].
41A Protection of assignors and guarantors
(1) A person who assigns a retail shop lease in connection with the lease of a retail shop that will continue to be an ongoing business, or a guarantor or covenantor of the person, is not liable to pay to the lessor any money in respect of amounts payable by the person to whom the lease is assigned if the former lessee gave (before the start of the period of 7 clear days before the assignment is effected):(a) the lessor a copy of the assignor’s disclosure statement as referred to in section 41 (a), and(b) the proposed assignee a copy of the assignor’s disclosure statement as referred to in section 41 (b).(2) This section does not apply to a former lessee, guarantor or covenantor or a lessor if the assignor’s disclosure statement contains information that is materially false or misleading or incomplete.s 41A: Ins 1998 No 169, Sch 1 [31]. Am 2005 No 90, Sch 1 [51].
42 Lessor may reserve right to refuse sublease, mortgage
A retail shop lease may contain a provision which allows the lessor to refuse in the lessor’s absolute discretion:(a) consent to the grant of a sublease, licence or concession in respect of the whole or any part of the shop, or(b) consent to the lessee parting with possession of the whole or any part of the shop, or(c) consent to the lessee mortgaging or otherwise charging or encumbering the lessee’s estate or interest in the lease.
43 Application of Conveyancing Act 1919
Section 133B (Covenants against assigning) of the Conveyancing Act 1919 does not apply to a retail shop lease to the extent that the section is inconsistent with this Act (or any conditions implied in a lease by this Act).
44 Notice to lessee of lessor’s intentions at end of lease
(1) Not less than 6 months and not more than 12 months before the expiry of a lease, the lessor must by written notification to the lessee either:(a) offer the lessee a renewal or extension of the lease on terms specified in the notification (including terms as to rent), or(b) inform the lessee that the lessor does not propose to offer the lessee a renewal or extension of the lease.Note—A notice under paragraph (b) may include other information as to the lessor’s intentions (for example, that the lessor intends to allow the lessee to remain in possession of the shop as a periodic tenant under any provisions of the lease as to holding over, or as a tenant at will). Because such a statement is only a statement of intention, a lessee should be aware that it may not of itself bind the lessor.(2) An offer made for the purposes of subsection (1) (a) is not capable of revocation for 1 month after it is made.Note—This allows the lessee 1 month to decide whether to accept the offer. The lessor may agree to hold the offer open for longer than 1 month. The parties may also negotiate a new lease.(3) If the lessor fails to give a notification to the lessee as required by this section, the term of the lease is extended until the end of 6 months after the lessor gives the notification required by this section, but only if the lessee requests that extension by notice in writing to the lessor given before the lease would otherwise have expired.(4) During any extension of the lease under subsection (3), the lessee may terminate the lease by giving not less than 1 month’s notice of termination in writing to the lessor.(5) This section does not apply to a lease containing an option to renew or extend the lease or that is the subject of an agreement for the renewal or extension of the lease.(6) If a retail shop lease is for a term of 12 months or less, the periods of 12 months and 6 months in this section are shortened to 6 months and 3 months respectively.
44A Negotiations for renewal or extension of lease
(1) A lessor of a retail shop must not, by written or broadcast advertisement, indicate the availability of the shop for lease or invite tenders or expressions of interest for tendering, during the term of the lease, unless:(a) the lessor has offered the lessee a renewal or extension of the lease under section 44 (1) (a), the offer has not been accepted and (not earlier than one month after the offer was made) the lessor by written notice informs the lessee that negotiations are concluded without result, or(b) the lessor by written notice informs the lessee that the lessor does not propose to offer the lessee a renewal or extension of the lease and there are no arrangements to allow the lessee to remain in possession of the shop, or(c) the lessee by written notice informs the lessor that the lessee does not wish to enter into negotiations for the renewal or extension of the lease or that the lessee wishes to withdraw from the negotiations, or(d) the lessee has vacated or agrees in writing to vacate the shop, or(e) the lessee consents in writing to publication of the advertisement.Maximum penalty: 50 penalty units.(2) This section does not affect the industry practice of testing the market, otherwise than by written or broadcast advertisement, in connection with the leasing of a retail shop.(3) This section does not apply to a lease of community land within the meaning of the Local Government Act 1993.s 44A: Ins 2005 No 90, Sch 1 [52].
45 Key-money and lease preparation expenses for renewal or extension prohibited
(1) A person must not, as lessor or on behalf of the lessor, seek or accept the payment of key-money or lease preparation expenses in connection with the renewal or extension of a retail shop lease and any provision of a retail shop lease is void to the extent that it requires or has the effect of requiring the payment of key-money or lease preparation expenses in connection with the renewal or extension of the lease.(2) If a person contravenes this section:(a) the person is guilty of an offence and liable to a penalty not exceeding 100 penalty units, and(b) (whether or not the person is convicted of an offence under paragraph (a)) the lessee is entitled to recover from the lessor as a debt any payment made or the value of any benefit conferred by the lessee and accepted by or on behalf of the lessor in contravention of this section.(3) This section does not prevent a lessor:(a) (Repealed)(b) from receiving payment of rent in advance, or(c) from securing performance of the lessee’s obligations under the renewed or extended lease by requiring the provision of a security bond or other bond or a guarantee from the lessee or any other person, or(d) from seeking and accepting payment for the grant of a franchise in connection with the renewal or extension of the lease.(4) This section does not prevent a person, as lessor or on behalf of the lessor, from requiring payment by the prospective lessee or the lessee of a reasonable sum in respect of lease preparation expenses incurred in connection with making an amendment to a proposed lease, or to a lease as is proposed to be extended, that was requested by or on behalf of the prospective lessee or the lessee, other than:(a) an amendment to insert or vary the particulars of the lessee, the rent or the term, or(b) an amendment to remedy a failure by or on behalf of the lessor to include or omit a term of the proposed lease, or the lease as proposed to be extended, that was, at the time of the failure to include or omit, agreed between the lessor and the proposed lessee or lessee to be included in or omitted from the proposed lease, or the lease as proposed to be extended, or(c) if the amendment is in connection with the renewal of a retail shop lease, an amendment requested before the lessor is given a lessee’s disclosure update under section 11A.(5) If a prospective lessee or the lessee is liable to pay a reasonable sum referred to in subsection (4), the lessor must provide the prospective lessee or lessee with a copy of any account presented to the lessor in respect of those expenses. The prospective lessee or lessee is not required to make any such payment until the lessor has complied with this requirement.s 45: Am 2004 No 84, Sch 1 [7]–[9]; 2005 No 90, Sch 1 [53].
Part 6 Miscellaneous
46 Trading hours
A provision in a retail shop lease is void to the extent that it would operate to require the lessee to trade at a time when trading would be unlawful.
47 (Repealed)
s 47: Am 1996 No 24, Sch 1.90. Rep 2005 No 90, Sch 1 [54].
48 Independent legal advice
(1) The lessee or a prospective lessee under a retail shop lease must not be compelled to use the services of a lawyer or licensed conveyancer nominated by the lessor.(2) If the lessee or a prospective lessee is compelled to use the services of a lawyer or licensed conveyancer in contravention of this section, the lessor is liable to pay to the lessee the amount of any fees paid by the lessee to that lawyer or licensed conveyancer for those services.(3) If a prospective lessee is compelled to use the services of a lawyer or licensed conveyancer in contravention of this section for the purpose of the provision of a certificate referred to in section 16 (Minimum 5 year term), any certificate so provided is invalid for the purposes of section 16 if the lessee establishes that even though the certificate was given he or she did not understand the effect of section 16 (1) and (2) or did not understand that the giving of the certificate would result in section 16 not applying.s 48: Am 1998 No 169, Sch 1 [32].
Part 7 Additional requirements for retail shopping centres
49 Part applies only to retail shopping centres
This Part applies only to retail shop leases of shops in retail shopping centres and (in respect of those leases) applies in addition to the other provisions of this Act.
50 Confidentiality of turnover information
If a retail shop lease requires the lessee to provide information to the lessor concerning the turnover of the business of the lessee, the lessor must not divulge or communicate to any person any information so provided by the lessee, but this does not prevent the lessor communicating or divulging any such information:(a) with the consent of the lessee, or(b) in a document giving aggregate turnover information about a retail shopping centre in a manner that does not disclose information relating to the turnover of an individual lessee’s business, or(c) to a court or arbitrator or for the purposes of any mediation or valuation for the purposes of this Act or the lease, or(d) in compliance with a requirement made by or under an Act, or(e) to the lessor’s professional advisers (such as legal or financial advisers), or to the proper officer of any financial institution for the purpose in good faith of enabling the lessor to obtain financial accommodation, or(f) in good faith to a prospective purchaser of the retail shop or the building of which it forms part.Maximum penalty: 20 penalty units.
51 Statistical information to be made available to lessee
If a retail shop lease requires the lessee to pay any amount in respect of outgoings on account of expenditure incurred in obtaining statistical information (such as “traffic counts”), the lease is taken to include provision that the lessor must make any information so obtained by the lessor available to the lessee.
52 Advertising and promotion requirements
A provision in a retail shop lease is void to the extent that it requires the lessee to undertake any advertising or promotion of the lessee’s business. This section does not apply to a provision in a lease that requires any payment to the lessor for advertising and promotion costs incurred or to be incurred by the lessor.Note—This does not prevent a lessee deciding to make an additional contribution towards advertising and promotion. It is good leasing practice for a lessor to require all lessees in the shopping centre to contribute towards advertising and promotion costs for the centre.
53 Marketing plan for advertising and promotion
If a retail shop lease requires the lessee to pay any amount to the lessor in respect of advertising and promotion costs, the lease is taken to include provision to the following effect:(a) The lessor must, at least 1 month before the start of each accounting period of the lessor, make available to the lessee a marketing plan that gives details of the lessor’s proposed expenditure on advertising and promotion during that accounting period.(b) If such a payment relates to an opening promotion, the lessor must, at least 1 month before that opening promotion, make available to the lessee details of the proposed expenditure on that promotion.
54 Six-monthly advertising and promotion expenditure statement to be made available to lessees
(1) A retail shop lease is taken to include provision to the following effect:(a) The lessor must make a written statement available for examination by a lessee detailing all expenditure relating exclusively to the building or centre in which the retail shop is located by the lessor on account of advertising and promotion costs to which the lessee is required to contribute under the lease.(b) The lessor must make the statement available at least twice in each of the lessor’s accounting periods during the term of the lease (once in relation to expenditure during the first 6 months of each such accounting period and once in relation to expenditure during the second 6 months of each such accounting period).(c) The statement must be made available within 1 month after the end of the 6 month period to which it relates.(2) The details to be provided in a statement made available under this section in relation to an accounting period must also include:(a) in respect of expenditure by the lessor on account of advertising and promotion costs of the lessor:(i) a statement of the amount contributed by the lessor in respect of expenditure relating exclusively to the building or centre, and(ii) a statement of the total of the amounts contributed by the lessees, and(b) in respect of contributions by the lessor on account of advertising and promotion costs of the lessor relating exclusively to the building or centre and in respect of contributions by the lessees on account of advertising and promotion costs of the lessor:(i) a statement of the total unspent amount carried forward to that period, and(ii) a statement of the total unspent amount to be carried forward to the next period, and(c) any other statements prescribed by the regulations.s 54: Am 2005 No 90, Sch 1 [55] [56].
55 Annual advertising and promotion expenditure statement to be given to lessees
(1) A retail shop lease is taken to include provision to the following effect:(a) The lessor must give the lessee a written statement (an advertising statement) that details all expenditure relating exclusively to the building or centre in which the retail shop is located by the lessor in each accounting period of the lessor during the term of the lease on account of advertising or promotion costs to which the lessee is required to contribute under the lease.(b) The advertising statement is to be prepared in accordance with relevant principles and disclosure requirements of applicable accounting standards made by the Australian Accounting Standards Board, as in force from time to time.(c) The advertising statement is to be given to the lessee within 3 months after the end of the accounting period to which it relates.(d) The advertising statement is to be accompanied by a report (an auditor’s report) on the statement prepared by a registered company auditor (within the meaning of the Corporations Act 2001 of the Commonwealth).(e) The auditor’s report is to include a statement by the auditor as to whether or not the advertising statement correctly states the expenditure by the lessor during the accounting period concerned in respect of advertising or promotion costs to which the lessee is required to contribute.(2) The details to be provided in an advertising statement given to a lessee under this section in relation to an accounting period must also include:(a) in respect of expenditure by the lessor on account of advertising and promotion costs of the lessor:(i) a statement of the amount contributed by the lessor in respect of expenditure relating exclusively to the building or centre, and(ii) a statement of the total amount contributed by the lessee, and(b) in respect of contributions by the lessor on account of advertising and promotion costs of the lessor relating exclusively to the building or centre and in respect of contributions by the lessee on account of advertising and promotion costs of the lessor:(i) a statement of the total unspent amount carried forward to that accounting period, and(ii) a statement of the total unspent amount to be carried forward to the next accounting period, and(c) any other statements prescribed by the regulations.(3) An auditor preparing a report under subsection (1) (d) or the lessor must ensure that the lessee is given a reasonable opportunity to make a written submission to the auditor on the accuracy of the lessor’s proposed advertising statement. The auditor need not contact the lessee for the purposes of this subsection if the lessor advises the auditor that the lessor has informed the lessee of the lessee’s opportunity under this subsection.(4) The auditor must consider any written submissions made pursuant to subsection (3).s 55: Subst 1997 No 52, Sch 1 [7]. Am 2001 No 34, Sch 4.53; 2005 No 90, Sch 1 [57] [58].
55A Non-provision of marketing plan or advertising and promotion statement
(1) A lessee is entitled to withhold payment of contributions in respect of advertising or promotion costs of the lessor if:(a) the lessor has failed:(i) to make available to the lessee a marketing plan required under section 53 (a), or(ii) to make available to the lessee details of proposed expenditure on an opening promotion as required under section 53 (b), or(iii) to make available to the lessee a written statement of expenditure required under section 54, or(iv) to give the lessee an advertising statement required under section 55, and(b) the lessee has, at or after the expiry of the time when the plan, details or statement was required to be made available to or given to the lessee, requested the lessor in writing to furnish the plan, details or statement to the lessee, and(c) the lessor’s failure has continued for 10 business days after the request was made.(2) The lessee must pay the withheld contributions within 28 days after the lessor furnishes the plan, details or statement.(3) The lessor is not entitled to recover interest or late payment charges in respect of contributions withheld in accordance with this section.(4) The lessee is not in breach of the retail shop lease for acting in accordance with this section.(5) This section does not affect any other rights that the lessee has in connection with the lessor’s failure to provide the plan, details or statement.s 55A: Ins 2005 No 90, Sch 1 [59].
56 Unexpended advertising and promotion contributions to be carried forward
A retail shop lease is taken to include provision that any amount contributed by a lessee in the shopping centre under a retail shop lease in respect of advertising or promotion costs of the lessor and which is not spent for the purpose for which it was contributed must be carried forward by the lessor, to be applied towards future expenditure on advertising or promotion of the centre.
57 (Repealed)
s 57: Am 1997 No 52, Sch 1 [8]–[11]. Rep 1998 No 169, Sch 1 [33].
58 Termination for inadequate sales prohibited
A retail shop lease must not contain a provision that permits or otherwise provides for the termination of the lease on the ground that the lessee or the business of the lessee has failed to achieve specified sales or turnover performance.
59 Geographical restrictions
(1) A lease must not contain a provision which has the effect of preventing or restricting the lessee from carrying on business outside the retail shopping centre, either during the term of or after the expiry of the lease.(2) This section does not operate to prevent a lease or other agreement from containing a provision that prevents the use of the name of the retail shopping centre in connection with a business carried on outside the shopping centre.
60 Tenants association
A lease must not contain a provision which has the effect of preventing or restricting the lessee from joining, forming or taking part in any activities of any tenants association or other similar body.Note—This section does not prevent a lessor from encouraging lessees to become involved in marketing advisory panels.
61 Trading hours
(1) A lease of a retail shop is taken to include provision to the effect that a lessor is not entitled to change the core trading hours of the retail shopping centre of which the shop forms part except with the approval in writing of the lessees of a majority of the retail shops in the shopping centre (whether or not those retail shops are retail shops to which this Act applies). The initial fixing of trading hours in a new shopping centre is not a change to core trading hours and is not affected by this subsection.(2) Subsection (1) does not operate to permit a lessor to ignore the requirements of any other agreement, arrangement or understanding that prevents or restricts a change to core trading hours by the lessor in a retail shopping centre.Note—An example of how subsection (2) operates is where another agreement requires a 75% majority of lessees to be in favour of a change to core trading hours before the lessor can make the change. Subsection (2) requires that the other agreement be complied with also, so that a 75% majority must be obtained and not merely the 50% majority required by subsection (1).(3) This section does not prevent a lease providing for the action that may be taken by a lessor in the event of a lessee not trading in accordance with core trading hours, including provisions:(a) enabling the lessor, as a condition of granting consent to a lessee trading outside core trading hours, to require the lessee to pay, or pay a contribution towards, the costs of opening the retail shopping centre during those extended trading hours, or(b) requiring a lessee who trades outside core trading hours to make specified payments or additional payments in respect of advertising and promotional costs for the shopping centre.(4) The core trading hours of a retail shopping centre are the times when retail shops in the shopping centre are required to be open for business, whether the requirement is imposed by or under a lease or by or under some other agreement, arrangement or understanding between lessors and the lessees.
62 Special provision for strata shopping centres
If a retail shop lease applies in respect of a shop that comprises the whole or part of a strata lot under the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986, sections 50–56 and 61 apply in respect of the lease as if:(a) references in those sections to a retail shop lease (or a provision of the lease) included a reference to the by-laws (or a provision of the by-laws) for the strata scheme concerned, and(b) references in those sections to the lessor included reference to the body corporate under the strata scheme concerned and any centre manager appointed, employed or engaged by the body corporate to have management functions in respect of the centre.Note—Considering section 54 as an example of the operation of section 62:The provisions of section 54 are taken to form part of the by-laws for the retail shopping centre. The section will then operate to impose requirements on the lessor, the body corporate and the centre manager. If advertising and promotion costs are charged to a lessee under the by-laws and not the lease, the lessor will have no obligations under section 54 because those amounts are not charged under the lease. The body corporate and the centre manager on the other hand will have the obligations that the lessor would otherwise have had.s 62: Am 1996 No 139, Sch 2.27 [3] (am 1997 No 55, Sch 2.18 [1] [2]).
Part 7A Unconscionable conduct and misleading or deceptive conduct
pt 7A, hdg: Ins 1998 No 169, Sch 1 [34]. Subst 2005 No 90, Sch 1 [60].
pt 7A: Ins 1998 No 169, Sch 1 [34].
Division 1 Unconscionable conduct
pt 7A, div 1, hdg: Ins 2005 No 90, Sch 1 [60].
62A Application of Division
(1) This Division extends to apply to a retail shop lease that was entered into before the commencement of section 6 or under an option granted or agreement made before the commencement of section 6, but only if this Act would have applied to the lease if it had been entered into after the commencement of section 6.(2) This Division does not apply to conduct that occurred before the commencement of this section.(3) Nothing in this Division affects the operation of Division 2.s 62A: Ins 1998 No 169, Sch 1 [34]. Am 2005 No 90, Sch 1 [61] [62].
62B Unconscionable conduct in retail shop lease transactions
(1) A lessor must not, in connection with a retail shop lease, engage in conduct that is, in all the circumstances, unconscionable.(2) A lessee must not, in connection with a retail shop lease, engage in conduct that is, in all the circumstances, unconscionable.(3) Without in any way limiting the matters to which the Tribunal may have regard for the purpose of determining whether a lessor has contravened subsection (1) in connection with a retail shop lease, the Tribunal may have regard to:(a) the relative strengths of the bargaining positions of the lessor and the lessee, and(b) whether, as a result of conduct engaged in by the lessor, the lessee was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the lessor, and(c) whether the lessee was able to understand any documents relating to the lease, and(d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the lessee or a person acting on behalf of the lessee by the lessor or a person acting on behalf of the lessor in relation to the lease, and(e) the amount for which, and the circumstances under which, the lessee could have acquired an identical or equivalent lease from a person other than the lessor, and(f) the extent to which the lessor’s conduct towards the lessee was consistent with the lessor’s conduct in similar transactions between the lessor and other like lessees, and(g) the requirements of any applicable industry code, and(h) the requirements of any other industry code, if the lessee acted on the reasonable belief that the lessor would comply with that code, and(i) the extent to which the lessor unreasonably failed to disclose to the lessee:(i) any intended conduct of the lessor that might affect the interests of the lessee, and(ii) any risks to the lessee arising from the lessor’s intended conduct (being risks that the lessor should have foreseen would not be apparent to the lessee), and(j) the extent to which the lessor was willing to negotiate the terms and conditions of any lease with the lessee, and(k) the extent to which the lessor and the lessee acted in good faith.(4) Without in any way limiting the matters to which the Tribunal may have regard for the purpose of determining whether a lessee has contravened subsection (2) in connection with a retail shop lease, the Tribunal may have regard to:(a) the relative strengths of the bargaining positions of the lessee and the lessor, and(b) whether, as a result of conduct engaged in by the lessee, the lessor was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the lessee, and(c) whether the lessor was able to understand any documents relating to the lease, and(d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the lessor or a person acting on behalf of the lessor by the lessee or a person acting on behalf of the lessee in relation to the lease, and(e) the amount for which, and the circumstances under which, the lessor could have granted an identical or equivalent lease to a person other than the lessee, and(f) the extent to which the lessee’s conduct towards the lessor was consistent with the lessee’s conduct in similar transactions between the lessee and other like lessors, and(g) the requirements of any applicable industry code, and(h) the requirements of any other industry code, if the lessor acted on the reasonable belief that the lessee would comply with that code, and(i) the extent to which the lessee unreasonably failed to disclose to the lessor:(i) any intended conduct of the lessee that might affect the interests of the lessor, and(ii) any risks to the lessor arising from the lessee’s intended conduct (being risks that the lessee should have foreseen would not be apparent to the lessor), and(j) the extent to which the lessee was willing to negotiate the terms and conditions of any lease with the lessor, and(k) the extent to which the lessee and the lessor acted in good faith.(5) A person is not to be taken for the purposes of this section to engage in unconscionable conduct in connection with a retail shop lease by reason only that the first-mentioned person institutes legal proceedings in relation to that lease or refers to arbitration a dispute or claim in relation to that lease.(6) A person is not to be taken for the purposes of this section to engage in unconscionable conduct in connection with a retail shop lease by reason only that the first-mentioned person fails to renew the lease or issue a new lease.(7) For the purpose of determining whether a lessor has contravened subsection (1) or whether a lessee has contravened subsection (2):(a) the Tribunal must not have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention, and(b) the Tribunal may have regard to circumstances existing before the commencement of this section but not to conduct engaged in before that commencement.(8) A lessor or lessee, or former lessor or lessee, who suffers loss or damage by reason of unconscionable conduct of another person that is in contravention of this section may recover the amount of the loss or damage by lodging a claim against the other person under section 71A.(9) If the matter of such loss or damage arises in connection with a matter the subject of proceedings in the Tribunal, the Tribunal may proceed to decide it, and in so doing may award such sum as it thinks fit.(10) In this section:lessee or former lessee includes a person who is a guarantor or covenantor under a lease or former lease.s 62B: Ins 1998 No 169, Sch 1 [34]. Am 2005 No 90, Sch 1 [63].
Division 2 Misleading or deceptive conduct
pt 7A, div 2 (ss 62C–62E): Ins 2005 No 90, Sch 1 [64].
62C Interpretation and application of Division
(1) In this Division:misleading or deceptive conduct means conduct to which section 62D applies.party or former party to a retail shop lease or former retail shop lease includes a person who is a guarantor or covenantor under a lease or former lease.(2) Nothing in this Division affects the operation of Division 1.pt 7A, div 2 (ss 62C–62E): Ins 2005 No 90, Sch 1 [64].
62D Misleading or deceptive conduct in connection with retail leases
A party to a retail shop lease must not, in connection with the lease, engage in conduct that it is misleading or deceptive to another party to the lease or that it is likely to mislead or deceive another party to the lease.pt 7A, div 2 (ss 62C–62E): Ins 2005 No 90, Sch 1 [64].
62E Right to compensation
A party or former party to a retail shop lease who suffers loss or damage by reason of misleading or deceptive conduct of another party may recover the amount of the loss or damage by lodging a claim against the other party under section 71.pt 7A, div 2 (ss 62C–62E): Ins 2005 No 90, Sch 1 [64].
Part 8 Dispute resolution
Division 1 Preliminary
63 Interpretation
(1) In this Part:court means a court, tribunal or other body or person authorised by law, or by consent or agreement of parties, to decide or resolve any issue that is in dispute between parties, and includes an arbitrator.party or former party to a retail shop lease or former retail shop lease includes a person who is a guarantor or covenantor under a lease or former lease.retail tenancy dispute means any dispute concerning the liabilities or obligations (including any obligation to pay money) of a party or former party to a retail shop lease or former lease, being liabilities or obligations which arose under the lease or former lease or which arose in connection with the use or occupation of the retail shop to which the lease or former lease relates, and (without limiting the generality of the foregoing) includes a dispute about a security bond, but does not include a dispute of the kind referred to in section 19 (1) (b) or 31 (1) (b) as to the rent payable under a retail shop lease (where the rent is to be current market rent for the shop).(2) This Part extends to apply to:(a) a retail shop lease that was entered into before the commencement of section 6 or under an option granted or agreement made before the commencement of section 6, and(b) a dispute that arose before the commencement of section 6 or which concerns a liability or obligation that arose before the commencement of section 6.s 63: Am 1998 No 169, Sch 1 [35] [36]; 1999 No 31, Sch 1.43 [1]; 2005 No 90, Sch 1 [65] [66]; 2006 No 58, Sch 1.29 [2].
Division 2 Mediation
64 The Registrar
(1) The Minister is to appoint the holder of a statutory office or a public servant as the Registrar of Retail Tenancy Disputes for the purposes of this Act.(2) The Registrar may, for the purposes of this Act and with the approval of the Minister, arrange for the use of the services of any staff or facilities of a government department, administrative office or a public or local authority.(3) The Registrar may delegate to any public servant the exercise of any function of the Registrar under this Act, except this power of delegation.
65 Functions of Registrar
(1) The Registrar has the following functions:(a) to make arrangements to facilitate the resolution by mediation of retail tenancy disputes (whether or not a dispute has been formally referred to the Registrar under this Act),(a1) to make arrangements to facilitate the resolution by mediation of disputes or applications under section 19 (3), 19A (3), 31 (3) or 31A (3) or the subject, or possible subject, of a claim under section 62B,(b) to report to the Minister on the operation of this Act,(c) to take proceedings for an offence against this Act or to authorise persons to take proceedings for offences against this Act,(d) such other functions as may be conferred or imposed on the Registrar by or under this or any other Act.(2) The Registrar may, at any stage of proceedings brought before a court concerning a retail tenancy dispute intervene in the proceedings. If the Registrar intervenes in proceedings, the Registrar becomes a party to the proceedings and has all the rights (including rights of appeal) of a party to the proceedings.(3) In making arrangements for the resolution by mediation of disputes or other matters, the Registrar is to have regard to the need for mediation of those disputes or other matters to be conducted by persons who are experienced in the field of retail shop leases.(4) In the exercise of his or her functions under this Act, the Registrar is not subject to the control or direction of the Minister.s 65: Am 1998 No 169, Sch 1 [37]–[40]; 2002 No 106, Sch 1 [5].
66 Mediation of disputes and other matters
(1) Any or all of the parties or former parties to a retail shop lease may refer a retail tenancy dispute or other dispute or matter referred to in section 65 (1) (a1) to the Registrar for mediation of the dispute. The Registrar is entitled to charge an application fee (not exceeding any maximum fee prescribed by the regulations) for the referral of a retail tenancy dispute or other dispute or matter referred to in section 65 (1) (a1) to the Registrar.Note—Before applying for formal mediation of a dispute parties are encouraged to approach the Registrar for preliminary assistance of the kind referred to in section 67. There is no charge for this.(2) The costs of and associated with formal mediation before a mediator of a retail tenancy dispute or other dispute or matter under arrangements made by the Registrar are to be paid by the parties to the mediation in such proportions as they may agree among themselves or, failing agreement, in equal shares.(3) A mediator has, in the exercise of functions performed as a mediator under this Act, the same protection and immunities as a Judge of the Supreme Court.s 66: Am 1997 No 52, Sch 1 [12]; 1998 No 169, Sch 1 [41]–[43]; 1999 No 31, Sch 1.43 [2].
67 The nature of mediation
(1) In this Division:mediation is not limited to formal mediation procedures and includes the following:(a) preliminary assistance in dispute resolution, such as the giving of advice designed to ensure that the parties are fully aware of their rights and obligations and that there is full and open communication between the parties concerning the dispute,(b) other appropriate forms of alternative dispute resolution.(2) A reference in this Division to a mediator includes a reference to a person who provides the assistance or alternative dispute resolution referred to in subsection (1).Note—The first step in any dispute is to ensure that the parties have read their lease and have spoken to one another about their concerns in an effort to resolve the dispute.s 67: Subst 2002 No 106, Sch 1 [6].
68 Disputes and other matters must be submitted to mediation before proceedings can be taken
(1) A retail tenancy dispute or other dispute or matter referred to in section 65 (1) (a1) may not be the subject of proceedings before any court unless and until the Registrar has certified in writing that mediation under this Part has failed to resolve the dispute or matter or the court is otherwise satisfied that mediation under this Part is unlikely to resolve the dispute or matter.(2) The Registrar must certify that mediation under this Part has failed to resolve a retail tenancy dispute or other dispute or matter referred to in section 65 (1) (a1) if the Registrar is satisfied that any one or more of the parties to the dispute or matter has refused to take part in or has withdrawn from mediation of the dispute or matter.(3) This section does not apply to proceedings before a court for an order in the nature of an injunction.(4) This section does not operate to affect the validity of any decision made by a court.s 68: Am 1998 No 169, Sch 1 [44] [45].
69 Statements made during mediation not admissible
Any statement or admission made in the course of the mediation of a retail tenancy dispute or other dispute or matter referred to in section 65 (1) (a1) pursuant to arrangements made by the Registrar under this Part is not admissible at a hearing of a claim under Division 3 or in any other legal proceeding.s 69: Am 1998 No 169, Sch 1 [46].
Division 3 Determination of claims by Administrative Decisions Tribunal
pt 8, div 3, hdg: Subst 1998 No 169, Sch 1 [47].
70 Definitions
In this Division:retail tenancy claim means any of the following:(a) a claim in connection with a liability or obligation with which a retail tenancy dispute is concerned, being:(i) a claim for payment of money (whether or not stated to be by way of debt, damages, restitution or refund),(ii) a claim for relief from payment of a specified sum of money,(iii) a claim for the doing of specified work or the provision of specified services,(iv) a claim for the surrender of possession of specified premises,(v) a claim for assignment of rights under a lease or for a declaration that a lessor is not entitled to withhold consent to an assignment of the rights of a lessee,(vi) a claim for relief against forfeiture,(vii) a claim regarding the rectification of the lease,(viii) a claim regarding the invalidity of a lease for inconsistency with this Act or the regulations,(ix) a claim for a declaration of the rights, obligations and liabilities of the parties under a lease,(x) without limiting the generality of subparagraph (i), a claim for compensation under section 10, 34, 35 or 62E,(xi) without limiting the generality of any other subparagraph, a claim with respect to the entitlement of a party or former party under a lease to receive payment of the whole or a part of a security bond,(b) an application for the appointment by the Tribunal of a specialist retail valuer under section 19 or 31,(c) an application for the appointment by the Tribunal of two specialist retail valuers under section 32A,(d) an application under section 19 (3) or 31 (3), or under those provisions as applied by section 32A, by a specialist retail valuer,(e) a claim against a specialist retail valuer under section 19A (3) or 31A (3), or under those provisions as applied by section 32A, for compensation for loss or damage suffered as a consequence of the use or communication or divulging of information.unconscionable conduct claim means a claim for relief under section 62B.s 70: Subst 1998 No 169, Sch 1 [48]. Am 1999 No 31, Sch 1.43 [3]; 2005 No 90, Sch 1 [67]–[69].
71 Lodging of retail tenancy claims with Tribunal
(1) A party or former party to a retail shop lease or former retail shop lease may lodge a retail tenancy claim in respect of the lease with the Tribunal for determination of the claim.(2) A claim may not be lodged more than 3 years after the liability or obligation that is the subject of the claim arose.(3) (Repealed)Note—Under section 37 of the Administrative Decisions Tribunal Act 1997, the effect of enabling applications to be made to the Tribunal is to confer jurisdiction on it. By virtue of section 142 of that Act, an application includes a mechanism by which an Act provides for a matter to be brought to the attention of the Tribunal for an original decision.s 71: Subst 1998 No 169, Sch 1 [49]. Am 1999 No 31, Sch 1.43 [4].
71A Lodging of unconscionable conduct claims with Tribunal
(1) A lessor or lessee, or former lessor or lessee, under a retail shop lease or former retail shop lease may lodge an unconscionable conduct claim with the Tribunal for determination of the claim.(2) A claim may not be lodged more than 3 years after the alleged unconscionable conduct occurred.(3) In this section:lessor or lessee under a retail shop lease or former retail shop lease includes a person who is a guarantor or covenantor under a lease or former lease.s 71A: Ins 1998 No 169, Sch 1 [49]. Am 2005 No 90, Sch 1 [70].
71B Lodging of claims after 3 years
(1) A retail tenancy claim may be lodged more than 3 years but no later than 6 years after the liability or obligation that is the subject of the claim arose, if the Tribunal orders that the claim may be lodged with the Tribunal.(2) An unconscionable conduct claim may be lodged more than 3 years but no later than 6 years after the alleged unconscionable conduct occurred, if the Tribunal orders that the claim may be lodged with the Tribunal.(3) The Tribunal may make an order under this section:(a) on application by the party or former party concerned, and(b) after hearing such of the persons likely to be affected by the application as it sees fit, and(c) if the applicant satisfies the Tribunal that it is just and reasonable to make the order.s 71B: Ins 2005 No 90, Sch 1 [71].
72 Powers of Tribunal relating to retail tenancy claims
(1) In proceedings for a retail tenancy claim lodged with the Tribunal under this Part, the Tribunal is empowered to make any one or more of the following orders that it considers appropriate:(a) an order that a party to the proceedings pay money to a person specified in the order, whether by way of debt, damages or restitution, or refund any money paid by a specified person,(b) an order that a specified amount of money is not due or owing by a party to the proceedings to a specified person, or that a party to the proceedings is not entitled to a refund of any money paid to another party to the proceedings,(c) an order that a party to the proceedings:(i) do any specified work or perform any specified service or any obligation arising under this Act or the terms of a lease, or(ii) surrender possession of specified premises to another person, or(iii) assign his or her or its rights under a lease to a specified person, or(iv) do or perform, or refrain from doing or performing, any specified act, matter or thing,(d) an order granting a party to the proceedings relief against forfeiture,(e) an order, by consent of the parties, requiring the parties to the proceedings to rectify a lease,(f) an order:(i) declaring any provision made by a lease to be void for being inconsistent with this Act or the regulations, or(ii) declaring that a lessor is not entitled to withhold consent to an assignment of the rights of a lessee, or(iii) declaring the rights and liabilities of the parties under law, whether any consequential relief is or could be claimed or not, or(iv) declaring that a party is or is not entitled to receive payment of the whole or a part of a security bond,(g) such other order, in the nature of an interlocutory order of a kind referred to in paragraphs (a)–(f), as the Tribunal considers proper to be made in order to resolve or assist resolution of the dispute between the parties.(2) The Tribunal may make such ancillary orders as it considers necessary for the purpose of enabling an order under this section to have full effect.(3) The Tribunal may impose such conditions as it considers appropriate when making an order under this section.(4) The Tribunal may make an interim order under this section pending final determination of a claim, if it appears to the Tribunal desirable to do so.s 72: Subst 1998 No 169, Sch 1 [50]. Am 2005 No 90, Sch 1 [72].
72AA Powers of Tribunal relating to unconscionable conduct claims
(1) In proceedings for an unconscionable conduct claim lodged with the Tribunal under this Part, the Tribunal is empowered to make any one or more of the following orders that it considers appropriate:(a) an order that a party to the proceedings pay money to a person specified in the order, whether by way of debt, damages or restitution, or refund any money paid by a specified person,(b) an order that a specified amount of money is not due or owing by a party to the proceedings to a specified person, or that a party to the proceedings is not entitled to a refund of any money paid to another party to the proceedings.(2) The Tribunal may make such ancillary orders as it considers necessary for the purpose of enabling an order under this section to have full effect.(3) The Tribunal may impose such conditions as it considers appropriate when making an order under this section.(4) The Tribunal may make an interim order under this section pending final determination of a claim, if it appears to the Tribunal desirable to do so.s 72AA: Ins 1998 No 169, Sch 1 [51].
72AB Powers of Tribunal relating to appointment of specialist retail valuers
(1) The Tribunal may appoint:(a) a specialist retail valuer, on application under section 19 or 31, or(b) two specialist retail valuers, on application under section 32A.(2) The appointment of a specialist retail valuer is to be made from separate lists of nominees prepared separately by the persons for the time being holding or acting in the offices of President of the Australian Property Institute (NSW) and President of the Real Estate Institute (NSW).(3) The parties to the lease concerned are to pay the costs of the application to the Tribunal in equal shares.(4) The Tribunal may attach such conditions as it considers appropriate to the appointment of a specialist retail valuer, including conditions about the fees that may be charged by the valuer in connection with valuations under this Act.(5) No matter or thing done or omitted to be done by a specialist retail valuer appointed by the Tribunal subjects the valuer to any action, liability, claim or demand if the matter or thing was done in good faith for the purposes of a determination of rent by valuation carried out by a specialist retail valuer under section 19, 31 or 32A.s 72AB: Ins 2005 No 90, Sch 1 [73].
72A Power of Tribunal to award interest
(1) When the Tribunal orders on a retail tenancy claim or an unconscionable conduct claim that a person pay money to another person, the Tribunal may order that there is to be included, in the amount ordered to be paid, interest at a specified rate on the whole or any part of that amount for the whole or any part of the period between when the cause of action arose and when the order takes effect.(2) If the whole or part of an amount claimed under a retail tenancy claim or an unconscionable conduct claim is paid during proceedings in the Tribunal on the claim, prior to or without an order for payment being made in respect of the claim, the Tribunal may order that interest be paid at a specified rate on the whole or any part of the money paid for the whole or any part of the period between when the cause of action arose and the date of the payment.(3) The rate of interest specified by the Tribunal under this section must not exceed the rate at which interest is payable on a judgment debt of the District Court.(4) This section does not:(a) authorise the giving of interest on interest, or(b) apply in relation to any debt on which interest is payable as of right whether by virtue of any agreement or otherwise, or(c) affect the damages recoverable for the dishonour of a bill of exchange.(5) On a claim for the payment of money, the Tribunal may not order the payment of interest under subsection (1) in respect of the period after the date on which an appropriate settlement sum (or the first appropriate settlement sum) has been offered unless the special circumstances of the case warrant the making of such an order.(6) For the purposes of subsection (5), appropriate settlement sum is a sum offered by a party in settlement of a claim for the payment of money where the amount ordered to be paid (including interest accrued up to and including the date of the offer) does not exceed the sum offered by more than 10 per cent. Subsection (5) does not prevent an award of interest for the period before the settlement offer is made.s 72A: Ins 1997 No 52, Sch 1 [13]. Am 1998 No 169, Sch 1 [52].
73 Monetary limit on Tribunal’s jurisdiction
(1) The Tribunal has no jurisdiction to make an order or orders in respect of a particular retail tenancy claim or an unconscionable conduct claim if the total of:(a) the amount or amounts (if any) of money to be paid, and(b) the amount or amounts (if any) of money to be declared not to be due or owing, andunder or by virtue of the order or orders would exceed $400,000 or such other amount as may be prescribed by the regulations, whether on a balance of account or after set-off or otherwise.(c) the value or values (if any) of the work to be done or the services to be performed,(2) The amount for the time being applicable under subsection (1) may be increased by regulation not more frequently than once each 3 years (disregarding any disallowed regulation or provision of a regulation).(3) The amount resulting from an increase by regulation must not exceed the base amount, adjusted in line with movements in the Consumer Price Index (All Groups Index) for Sydney and rounded up to the nearest $10,000. The base amount is the dollar amount for the time being specified in subsection (1), unaffected by any regulation under that subsection.s 73: Am 1998 No 169, Sch 1 [52] [53]; 2005 No 90, Sch 1 [74]–[76].
74 Tribunal must attempt to conciliate
(1) The Tribunal must not make an order in respect of a retail tenancy claim or an unconscionable conduct claim that is before it unless it has brought, or used its best endeavours to bring, the parties to the claim to a settlement acceptable to all of them.(2) For that purpose, the Tribunal may adjourn the hearing of a claim to enable the dispute or matter concerned to be referred to the Registrar under Division 2 for mediation of the dispute or matter.(3) If such a settlement is reached, the Tribunal must make an order under this Division that gives effect to the settlement to the extent permitted by this Division.(4) Part 4 of Chapter 6 of the Administrative Decisions Tribunal Act 1997 does not apply to a retail tenancy claim or an unconscionable conduct claim that may be made to the Tribunal under this Act.s 74: Am 1998 No 169, Sch 1 [45] [52] [54].
75 Removal of court proceedings to the Tribunal
(1) If civil proceedings pending in a court involve a retail tenancy dispute, the court must on the application of any party to the proceedings transfer the proceedings (or so much of the proceedings as involve such a dispute) to the Tribunal to be dealt with as a claim under this Division, but only if the court is satisfied that:(a) the dispute is such as may effectively be dealt with as a claim under this Division and that it is appropriate that the dispute be dealt with by the Tribunal, and(b) the interests of justice do not require that the matter be dealt with by the court.(2) In determining whether or not it is appropriate that a matter be dealt with by the Tribunal, a court is to have regard to the general principle that retail tenancy disputes should be dealt with by the Tribunal rather than by a court.(3) Proceedings are taken to involve a retail tenancy dispute if any issue in dispute in the proceedings involves a liability or obligation with which a retail tenancy dispute is concerned.(4) This section does not prevent a court from granting urgent relief of an interlocutory nature where it is in the interests of justice to do so.(5) This section does not apply to proceedings by way of an appeal.(6) A court may make such ancillary orders as it considers necessary for the purpose of enabling an order under this section for the transfer of proceedings to the Tribunal to have full effect.
76 Jurisdictional overlap
(1) If a retail tenancy claim or an unconscionable conduct claim has been lodged with the Tribunal under this Part and at the time it was lodged no issue arising under the claim was the subject of a dispute in civil proceedings pending before a court, a court has no jurisdiction to hear or determine such an issue in civil proceedings, unless:(a) the claim lodged with the Tribunal, or the part of that claim to which the issue relates, is withdrawn or is dismissed for want of jurisdiction, or(b) a court of record has, on a judicial review, quashed or declared invalid an order, determination or ruling of the Tribunal made in respect of the claim on the ground that the Tribunal had no jurisdiction to hear and determine the issue.(2) If a retail tenancy claim or an unconscionable conduct claim has been lodged with the Tribunal under this Part and at the time it was lodged an issue arising under the claim was the subject of a dispute in civil proceedings pending before a court, the Tribunal, on becoming aware of those proceedings, ceases to have jurisdiction to hear or determine the issue, unless:(a) those proceedings, or the part of the proceedings relating to the issue, are or is transferred to the Tribunal by the court concerned, or(b) those proceedings, or the part of the proceedings relating to the issue, are or is withdrawn or dismissed by the court, or by another court on appeal in those proceedings, for want of jurisdiction or without deciding the issue on its merits, or(c) a court of record has, on a judicial review, quashed or declared invalid those proceedings or that part of those proceedings or any order, judgment or decision made in those proceedings in relation to the issue, on the ground that the first-mentioned court had no jurisdiction to hear and determine the issue.(3) If a retail shop lease provides that a dispute be submitted to arbitration, it is competent for a retail tenancy claim or an unconscionable conduct claim involving that dispute to be lodged with the Tribunal under this Part unless all steps necessary to secure arbitration of the dispute have been taken.(4) If a retail tenancy claim or an unconscionable conduct claim has been lodged with the Tribunal, any provision of a retail shop lease that provides for the submission of a dispute with which the claim is concerned to arbitration is of no effect in relation to the dispute.s 76: Am 1998 No 169, Sch 1 [52].
76A Removal of proceedings to Supreme Court
(1) A party to proceedings before the Tribunal for an unconscionable conduct claim, or partly for an unconscionable conduct claim and partly for a retail tenancy claim, may apply to the Tribunal to have the proceedings transferred to the Supreme Court.(2) The Tribunal must transfer the proceedings if the Tribunal is satisfied that:(a) the nature of the claim is such that it may be more effectively and appropriately dealt with by the Supreme Court, and(b) the interests of justice do not require the matter to be continued to be dealt with by the Tribunal.(3) The Supreme Court has jurisdiction to hear and determine proceedings transferred to it under this section and may make any orders and do anything that the Tribunal may do in determining an unconscionable conduct claim or retail tenancy claim, as the case requires.(4) The Supreme Court may exercise all the functions that are conferred or imposed by or under this or any other Act on the Tribunal to determine the unconscionable conduct claim.s 76A: Ins 1998 No 169, Sch 1 [55]. Am 2005 No 90, Sch 1 [77]–[79].
77 Appeals
(1) A party to any proceedings in which the Tribunal makes an order or other decision under this Act may appeal to an Appeal Panel of the Tribunal under Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997.(2)–(7) (Repealed)s 77: Subst 1998 No 169, Sch 1 [56]. Am 2005 No 90, Sch 1 [80] [81].
77A Tribunal may award costs
The Tribunal may award costs under section 88 of the Administrative Decisions Tribunal Act 1997 in respect of proceedings commenced by an application made under this Part.ss 77A–77C: Ins 1998 No 169, Sch 1 [56].
77B Assessors
Part 5 of Chapter 2 of the Administrative Decisions Tribunal Act 1997, and section 74 of that Act, insofar as it relates to assessors, do not apply to a claim that may be made to the Tribunal under this Act.ss 77A–77C: Ins 1998 No 169, Sch 1 [56].
77C Right of appearance
(1) In any proceedings before the Tribunal, the parties to the proceedings may appear in person or may be represented by a lawyer or other agent.(2) This section applies despite the provisions of section 71 of the Administrative Decisions Tribunal Act 1997.ss 77A–77C: Ins 1998 No 169, Sch 1 [56].
Part 9 Ancillary interpretation provisions
78 Interpretation based on industry practice
In the interpretation of this Act, a court (as defined for the purposes of Part 8) is to have regard to accepted practices and interpretations within the industry concerning the leasing of retail shops.
78A Meaning of “the Act” in leases
A retail shop lease is taken to include provision to the effect that a reference in the lease to the Act is a reference to the Retail Leases Act 1994, except in so far as the context or subject-matter otherwise indicates or requires.s 78A: Ins 1997 No 52, Sch 1 [14].
79 Leases partly for retail shops and partly for other premises
If a retail shop lease applies to a retail shop as well as to other separate or adjoining premises that are not a retail shop, this Act applies to the lease only to the extent that the lease is a lease of a retail shop.
80 Meaning of “renewal” of lease
A reference in this Act to the renewal of a retail shop lease (the current lease) is a reference to the lessor and the lessee under the current lease entering into a new retail shop lease for the retail shop to which the current lease relates (whether or not on the same terms as the current lease).
Part 9A Sydney (Kingsford-Smith) Airport
pt 9A: Ins 2002 No 106, Sch 1 [7].
80A Application
(1) This Part applies only in respect of premises at a passenger terminal at Sydney (Kingsford-Smith) Airport as described in the Airports Regulations 1997 under the Airports Act 1996 of the Commonwealth.(2) In this Part:Airport means Sydney (Kingsford-Smith) Airport as described in the Airports Regulations 1997 under the Airports Act 1996 of the Commonwealth.Airport passenger terminal means a passenger terminal at the Airport.airside premises means premises wholly within the part of the international passenger terminal of the Airport to which access is limited to the following persons:(a) a person who holds a valid security identification card or a valid visitor identification card (within the meaning of Division 7 of Part 7 of the Air Navigation Regulations 1947 of the Commonwealth),(b) a person under the supervision of a person who holds such a valid security identification card or valid visitor identification card,(c) a person who is authorised by law to have access to restricted areas at the Airport,(d) a person who holds a boarding pass.s 80A: Ins 2002 No 106, Sch 1 [7].
80B Non-retail premises exempted
(1) Premises at an Airport passenger terminal used wholly or predominantly for the carrying on of a business are exempt from the operation of this Act except for premises used wholly or predominantly for the carrying on of any of the following businesses:(a) a listed business,(b) a business that is a bank, a provider of financial services or a medical centre in each case located within a retail precinct (being an area of an Airport passenger terminal that has been designated by the operator of the terminal for use primarily for retail purposes).(2) Premises at an Airport passenger terminal that are used wholly or predominantly for, or that are a site for, business centres and lounges, booths and counters for purposes associated with duty free docket plucking, commercial offices, check-in counters, airline lounges, currency exchange outlets, tax refund booths, information booths, free internet facilities, storage facilities including duty free storage, government offices (such as for customs and quarantine or police), advertising, telephone booths, luggage lockers, baggage trolley operations, airline sales desks, mobile cart operations, electronic accommodation booking units, vending units, creches and children’s play areas are, for the purposes of subsection (1), taken to be premises used wholly or predominantly for the carrying on of a business.s 80B: Ins 2002 No 106, Sch 1 [7]. Am 2005 No 90, Sch 1 [82].
80C Leases in master concessions over 1,000 square metres exempted
(1) This Act does not apply to a lease of premises at an Airport passenger terminal if:(a) the premises form part of a master concession that has an aggregate lettable area of 1,000 square metres or more, and(b) the lease is a head lease under the master concession, and(c) the premises are used wholly or predominantly for carrying on the business of the supply of food and beverages or the supply of products that are duty free or tax free.(2) Premises at an Airport passenger terminal that are all leased to the same lessee comprise a master concession and the leases to that lessee are the head leases under that master concession.(3) The aggregate lettable area of a master concession is the aggregate of the lettable areas of the premises that comprise the master concession.s 80C: Ins 2002 No 106, Sch 1 [7].
80D Exemption from section 34
For the purposes of section 34, a lessor of premises at an Airport passenger terminal is taken not to have engaged in any of the activities described in section 34 (1) (a)–(f) because of anything done or omitted to be done by the lessor wholly or predominantly for any one or more of the following purposes:s 80D, hdg: Ins 2002 No 106, Sch 1 [7]. Am 2005 No 90, Sch 1 [83].(a) airport safety,(b) airline safety,(c) airport security,(d) airline security,(e) satisfying regulatory requirements.s 80D: Ins 2002 No 106, Sch 1 [7].
80E Exemption from section 39
For the purposes of section 39, the lessor under a retail shop lease of airside premises is entitled to withhold consent to the assignment of the lease if the proposed assignee of the lease has inferior skills for competing in the international airport retail market.s 80E: Ins 2002 No 106, Sch 1 [7].
80F Exemption from section 50
Section 50 does not apply in respect of a lease of airside premises.s 80F: Ins 2002 No 106, Sch 1 [7].
Part 10 General
81 Extension of term—effect on Real Property Act 1900
(1) The extension of the term of a retail shop lease by operation of a provision of this Act is of no effect for the purposes of the Real Property Act 1900 unless and until a lease is registered under that Act which gives effect to the extension of term, or the variation of a lease that is already registered under that Act is registered to give effect to the extension of term.(2) The Registrar-General is not bound to inquire into or to recognise any increase or alleged increase in the term of a retail shop lease by operation of a provision of this Act.(3) The lessor under a retail shop lease the term of which is extended by operation of a provision of this Act is bound, at the request of the lessee:(a) to execute a lease in the approved form for the purposes of the Real Property Act 1900 to enable registration of the lease under that Act (with its term so extended) if the lease is not already so registered, and(b) to enter into such variation of the lease as may be necessary to give effect to the extension of term if the lease is already registered under that Act, and to obtain all necessary consents, for the purposes of the registration under that Act of the variation of lease.
81A Service of documents and notices
(1) Any document or notice that must or may be served or given under or for the purposes of this Act must be in writing, and is sufficiently served or given:(a) if delivered personally, or(b) if left at or sent by post to the last known residential or business address in or out of New South Wales of the person to be served, or(c) in the case of a mortgagor in possession, if left at or sent by post to any occupied house or building comprised in the mortgage, or(d) if delivered to the facilities of a document exchange of which the person on whom it is to be served is a member, or(e) where relevant, if served or given in such manner as a court or tribunal may direct, or(f) if served or given in accordance with the terms of the retail shop lease concerned, or(g) if served or given in accordance with the regulations.(2) In the case of service by delivery to the facilities of a document exchange, the notice is, unless the contrary is proved, taken to have been served on the second business day following the day of delivery of the notice to those facilities.s 81A: Ins 2005 No 90, Sch 1 [84].
82 Exemptions from Act
The regulations may exempt from the operation of this Act or any specified provision of this Act any specified person, retail lease, retail shop or security bond or any specified class of persons, retail leases, retail shops or security bonds, either unconditionally or subject to conditions.s 82: Am 2005 No 90, Sch 1 [85] [86].
82A Rail Corporation New South Wales
For the purposes of section 34, Rail Corporation New South Wales as lessor of a retail shop is taken not to have engaged in any of the activities described in section 34 (1) (a)–(f) because of anything done or omitted to be done by the lessor wholly or predominantly for any one or more of the following purposes:(a) railway safety,(b) railway station safety,(c) railway security,(d) railway station security,(e) satisfying regulatory requirements.s 82A: Ins 2005 No 90, Sch 1 [87].
82B Delegation by Director-General
(1) The Director-General may delegate any functions of the Director-General under this Act (other than this power of delegation) to:(a) a member of the staff of the Department of State and Regional Development, or(b) an authorised officer under Part 2A, or(c) a person holding a position, or a person of a class, prescribed by the regulations.(2) A delegate may sub-delegate to a person referred to in subsection (1) any delegated function if the delegate is authorised in writing to do so by the Director-General.s 82B: Ins 2005 No 90, Sch 1 [87].
83 Act binds Crown
This Act binds the Crown in right of New South Wales and, in so far as the legislative power of Parliament permits, the Crown in all its other capacities.
84 Proceedings for offences
Proceedings for an offence against this Act are to be dealt with summarily before the Local Court.s 84: Am 2007 No 94, Sch 4.
84A Savings and transitional provisions
Schedule 3 has effect.s 84A: Ins 1997 No 52, Sch 1 [15].
84B Transitional provisions regarding alteration of list of businesses: existing leases
(1) In this section:legislative amendment means:(a) an amendment to or the substitution of Schedule 1, or(b) the making, amendment or substitution of a regulation.(2) If premises become a retail shop within the meaning of this Act because of a legislative amendment, this Act does not apply to:(a) a lease of the premises entered into before the date of the amendment, orexcept in so far as the regulations otherwise provide.(b) a lease of the premises entered into under an option granted or agreement made before that date,(3) If premises cease to be a retail shop within the meaning of this Act because of a legislative amendment, this Act continues to apply to:(a) a lease of the premises entered into before the date of the amendment, andexcept in so far as the regulations otherwise provide.(b) a lease of the premises entered into under an option granted or agreement made before that date,(4) If:(a) one or more premises in a cluster of premises cease to be a retail shop or retail shops within the meaning of this Act because of a legislative amendment, andthis Act continues to apply to a lease of other premises in the cluster entered into before the date of the amendment, except in so far as the regulations otherwise provide.(b) the cluster ceases as a result to be a retail shopping centre within the meaning of this Act,s 84B: Ins 2005 No 90, Sch 1 [88].
84C Transitional provisions regarding additions to list of businesses: shopping centres
(1) The purpose of this section is to provide that a cluster of premises does not become a retail shopping centre just because a legislative amendment has the effect of making the business carried on in one or more of existing leased premises a listed business. This exemption ceases to apply when the existing lease expires.(2) In this section:exempted lease means a lease referred to in section 84B (2) (a) that is exempt from this Act by section 84B (2).legislative amendment means:(a) an amendment to or the substitution of Schedule 1, or(b) the making, amendment or substitution of a regulation.(3) If:(a) one or more businesses become listed businesses because of a legislative amendment, andthe premises referred to in paragraph (b) are to be disregarded for the purpose of determining whether or not the cluster is a retail shopping centre within the meaning of this Act while they are the subject of an exempted lease.(b) one or more of the premises in a cluster of premises were, immediately before the date of the amendment, used wholly or predominantly for the carrying on of one or more of those businesses (and not for the carrying on of one or more of listed businesses specified immediately before that date),s 84C: Ins 2005 No 90, Sch 1 [88].
85 Regulations
(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.(2) In particular, the regulations may make provision for or with respect to:(a) the qualifications, appointment and functions of specialist retail valuers, and(b) the preparation, format and general content of the lists of nominated specialist retail valuers, and the times or intervals at which the lists are to be provided, and(c) the construction of a reference in a provision of this Act to an organisation or office that no longer exists.s 85: Am 2005 No 90, Sch 1 [89].
86 Review of Act
(1) The Minister is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives.(2) The review is to be undertaken as soon as possible after the period of 7 years from the date of assent to this Act.(3) A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 7 years.s 86: Am 1998 No 169, Sch 1 [57].
Schedule 1 Retail shop businesses
(Section 3)
Adult books and toy shopsAged care product shops
Amusement and entertainment services
Antique shops
Art galleries
Art supplies shops
Arts and crafts shops
Baby supplies shops
Bakeries or bread shops
Balloon shops
Bar accessories shops
Barbecue equipment shops
Barbers
Batteries shops (other than motor vehicle batteries)
Beach wear shops
Beauticians
Beauty shops
Beauty therapists
Beer, wine and spirit shops (except where goods are for consumption on the premises)
Bicycle accessories shops
Bicycle shops
Biscuit bar shops
Bookshops
Boot and shoe repairers
Bridal wear sales and hire shops
Building supplies shops
Business machines and equipment shops
Butcher shops
Cake shops
Camping equipment shops
Candle shops
Cards shops
Carpet shops
Chandler shops
Cigarette shops
Clock shops
Coffee, tea and other non-alcoholic beverage shops
Coins and coin collections shops
Comic shops
Confectionery shops
Convenience food shops
Cookie shops
Cosmetics shops
Costumes and formal wear hire shops
Curtain shops
Delicatessen shops
Department stores
Dinnerware shops
Disposals shops
Drapery shops
Dry cleaners, collection centres for dry cleaning or laundry services
Duty free shops
Electrical appliance shops
Electronic equipment and supplies shops
Engravers
Equestrian wear shops
Equipment hire shops
Fairy shops
Fast food shops
Fast-photo processors
Firearms shops
Flag shops
Floor covering shops
Florist shops
Flower shops or allied goods and services
Fruit and vegetable shops
Fruit juice shops
Funerary goods shops (incense, joss sticks)
Furniture shops
Games and hobbies shops
General stores
Gift shops
Gift-wrapping shops
Golf equipment shops
Greengrocer shops
Grocery shops
Haberdashery shops
Hairdressers
Hardware shops
Health food shops
Hearing aid shops
Hot water system shops
Household appliance and house appliance repairs shops
Household fixtures and fittings shops
Ice cream shops
Interior decoration shops
Internet cafes
Jewellery shops
Key cutting shops
Kitchenware shops
Knick-knack shops and novelties shops
Leather goods shops
Lighting shops
Linen shops
Lingerie shops
Lottery agencies
Manchester shops
Map shops
Martial arts supplies shops
Mixed business shops
Motor vehicle and motor cycle accessories shops (excluding tyre shops and batteries shops)
Music or musical equipment shops
Nail bars
Newsagency shops
Nut bar shops
Office equipment shops
Optical goods or services shops
Optometrists
Organ shops
Paint and paper shops
Party shops
Patisserie or pastry shops
Pawnbroking shops
Perfume shops
Pet shops, pet grooming and supplies shops and aquarium shops
Pharmacy shops
Photocopy shops
Photographic equipment and supplies shops
Picture frames shops
Plumbing supplies shops
Pools and spas shops
Poultry shops (fresh, frozen, cooked)
Precious stones shops
Prints and posters shops
Religious goods shops
Restaurants, cafeterias, coffee lounges, food courts and other eating places
Retail post offices
Rubber stamp supply shops
Seafood shops
Second-hand goods shops
Sewing machine shops (sewing materials, needlepoint and craft-related items)
Shoe and boot repair shops
Shoe shops
Shops selling or engaged in providing any one or more of the following goods or services in relation to any person: accessories, baby wear, bags, caps, clothing, clothing alterations, underwear or sunshades
Shops selling or renting any one or more of the following goods: cassettes, musical instruments, pre-recorded tapes, records, video tape and pre-recorded music libraries downloading, CDs, DVDs or other like products
Shops selling or renting any one or more of the following goods: telecommunication (mobile phones or services), televisions, videos, home entertainment systems, software, electronic games, computers or computer products or household appliances
Silverware shops
Sleepwear shops
Smallgoods shops
Snack bars
Soft drink shops
Soft furnishing shops
Souvenir, trophy and memorabilia shops
Specialised food shops
Sporting goods shops
Stamps and stamp collection shops (whether for purchase or sale or both)
Stationery shops
Supermarkets
Surfboard shops
Surfing accessories shops
Takeaway food shops
Tobacconist shops
Toy and game repair shops
Toy shops
Travel agency or travel services
Umbrella shops
Underwear shops
Variety stores
Vitamin shops
Wall decorations shops
Watch shops
Water filter shops
Wig shops
Writing materials shops
Any other business as from time to time may be prescribed by the regulations.
sch 1: Subst 2005 No 90, Sch 1 [90].
Schedule 2 Lessor and lessee disclosure statements
(Sections 11 and 11A)
Part 1 Lessor’s disclosure statement
Advice to lessees
1 Before signing agreements to a lease or leases, lessees should ensure they fully understand the documents.
2 If there is any doubt, lessees should seek independent legal advice.
Note—
If there is insufficient space on this form please attach additional sheets and appropriate documents.
Shop and lease details
Address of shop/shop No:
Permitted use of shop:
Lease period (see note 1): [date] to [date]
Lettable area (sq m) (see note 2):
Options to renew: □ No □ Yes
Option periods: [date] to [date]
Lessor’s requirements as to quality and standard of fittings in shop (see note 3).
Finishes, fixtures, fittings, equipment and services to be provided by the lessor.
Lessee has to pay for the finishes, fixtures, fittings, equipment and services to be provided by the lessor: □ No □ Yes
If yes, to what extent:
Finishes, fixtures, fittings, equipment and services to be provided by the lessee.
Hours of access to shop outside trading hours:
Date on which shop will be available for occupation by the lessee:
Rent:
Method or formula for calculating rent:
Commencement date: [date]
Rent reviews:
Frequency:
Nature:
Details of any current legal proceedings in relation to the lawful use of the premises/centre:
Outgoings to be paid by the lessee
Details of outgoings Estimate p.a.
Services to the public
Car parking
Child minding
Public address/music
Security
Signs
Telephones (public)
Uniforms
Administration costs
Audit fees
Management fees (administration cost to run centre)
Management fees (paid to management company)
Waste management costs
Sewage disposal and sullage
Waste disposal and removal
Costs to run centre
Air conditioning/ventilation
Building intelligence and emergency systems
Cleaning (consumables)
Cleaning (other)
Electricity
Energy management systems
Fire protection
Gardening
Gas and oil
Insurance
Lifts and escalators
Pest control
Repairs and maintenance
Sinking fund for repairs and maintenance
Strata levies
Government charges
Land tax
Local government rates and charges
Water, sewerage and drainage rates and charges
Others (specify)
TOTAL
Formula for apportionment of outgoings if the lessee is not liable for the total amount:
Additional outgoings to be borne by lessee
Details as to interest of lessor
Is the lessor:
□ Owner of the shop or □ Lessee of the shop
Give details of any rights and obligations of lessor under that lease that may affect the shop:
Details as to agreements or representations
Give details of any other agreements between lessor and lessee, or representations made by lessor or lessee including those relating to exclusivity or limitations on competing uses:
Details of any anticipated disturbance to trading
Give details of any disturbance likely to occur during the term of the lease, where known, where this will have a significant adverse effect on trading:
Section 34 (3) of the Retail Leases Act 1994 may limit a lessee’s claim for compensation if an event disturbing a lessee’s trade was brought to the attention of the lessee in writing, before the lease was entered into. A general written statement made to the lessee before the lease is entered into will not be enough to limit liability of the lessor. A statement must specifically describe the nature of the disturbance, include an assessment of the likelihood of the disturbance taking place (including an indication of the basis on which the assessment was reached) and have regard to its timing, duration and effect during the lease term. Lessees should have to be aware that it is not always possible to predict the timing and the duration of disturbances with certainty.
Retail shopping centre details
Name of retail shopping centre:
Address of retail shopping centre:
[Suburb/Town] [Postcode]
Number of retail shops in retail shopping centre:
Gross lettable area (sq m):
Parking facilities at retail shopping centre:
Number of bays available for customers:
Number of bays reserved for lessee:
Facilities and services provided by the lessor:
Annual turnover of the retail shopping centre (to the extent collected by the lessor) for the previous accounting period (see note 4):
Annual turnover for specialty shops, on a per square metre basis, for the previous accounting period. Minimum aggregation is to be on the basis of three types of categories (to the extent collected by the lessor) (see note 5):
food
non-food
services
Expiry date [month/year] of the leases of retailers with a lettable area more than 1,000 square metres:
Total centre traffic count (where available) for the previous accounting period:
Cost of (or basis or formula for) lessor’s works to prepare premises for fit-out (see note 6):
Changes or developments planned by the lessor for:
Retail shopping centre □ No □ Yes Attach details
Surrounding roads □ No □ Yes Attach details
Core trading hours (the times when retail shops in the shopping centre are required to be open for business):
Tenant mix (attach floor plan showing existing and proposed tenancy mix of the precinct and the location of common areas and kiosks within the precinct).
This arrangement applies as at the date of this statement but may be changed from time to time, subject to agreements or representations details of which are given in this disclosure statement.
Is the lessor able to assure the lessee that the current tenant mix as shown on the attached floor plan will not be altered through the introduction of a competitor or any other type of tenant □ No □ Yes
Tenant/Merchant Association □ No □ Yes
Attach details of constitution, voting rights, contributions
Contribution to retail shopping centre advertising and promotion
□ No □ Yes
□ No □ Yes
Lessee’s contribution $ per annum
Note 1—
Section 16 of the Retail Leases Act 1994 provides for a minimum term of 5 years for a retail shop lease. The 5 year term can be made up of an initial term and any combination of options. If the parties to the lease agree to a term of less than 5 years, the lessee must provide the lessor with a certificate from the lessee’s solicitor or conveyancer indicating that:
(a) the lessee’s rights under section 16 have been explained to them, and
(b) the lessee has made an informed decision to accept a term of less than 5 years.
Making an informed decision about the viability of a retail business with a less than 5 year term should form part of the lease negotiation. A pro forma section 16 certificate is available for download from www.retailtenancy.nsw.gov.au. It can be provided to the lessor within 6 months of entering into the lease. Without a section 16 certificate, the lessee has the choice of extending the term of the lease to 5 years.
Note 2—
Required only for shops in shopping centres or if the rent and/or outgoings is calculated on a “per square metre basis”.
Note 3—
If the lessor requires a particular standard of construction for fit-out, the lessee is to be provided with a fit-out guide, setting out this information, with this disclosure statement.
Note 4—
The lessor is not liable for a claim under Division 2 of Part 7A of the Act for misrepresentation for any error in the annual turnover of the retail shopping centre if the error is the result of inaccurate information provided to the lessor by the lessee(s).
Note 5—
This breakdown is not to identify an individual lessee. For example, if there are only one or two food lessees in a centre, the food category would be excluded from disclosure, or incorporated in non-food or services and noted. The lessor is not liable for a claim of misrepresentation under Division 2 of Part 7A of the Act for any error if this error is the result of inaccurate information provided to the lessor by the lessee(s).
Note 6—
Lessor’s works are the works which must be done by the lessor’s trade contractors or employees prior to the commencement of the fit-out by the lessee. The cost of lessor’s works is to be agreed before works are carried out and if actual cost exceeds the agreed cost, the lessee is not liable to bear the difference.
Appendix to Part 1 of Schedule 2
Information for the lessee to consider when entering into a retail shop lease
Before signing a lease:
You should have detailed discussions with the lessor/agent and also seek advice from business associations, your solicitor and your accountant. Also consult your local Council about any regulations, permitted use or development applications affecting the shop.
Information on these topics is included in the retail tenancy guide.
Ensure that all agreements arrived at with the lessor are included in the lease. Documentation is critical to avoiding and managing disputes about the lease.
Rent—be clear about the following issues:
What the starting rent is, and on what basis it is calculated.
How the rent will increase during the lease.
If you have agreed to pay turnover rent, be clear as to how you will give this information to the lessor.
If there is an option as part of the lease, find the clauses of the lease that tell you how and when you must exercise the option and that explain how the rent will be set.
Lease establishment—check:
That you have read the lease and asked for advice on what it means.
That the description of the premises in the lease is accurate and covers any rights you will have to use common areas or car parking for you, your staff or visitors.
Whether statements you have relied on in agreeing to the lease have been documented in the Lessee’s Disclosure Statement, so as to avoid disagreements later.
Whether you need to provide a security bond or personal guarantee to secure the lease, and how much this will be. If a cash security bond is agreed to, be sure it is lodged under the NSW Government’s retail bond scheme.
What expenses you will have to meet to fit-out the shop ready for trading, and whether you will have to meet any of the costs incurred by the lessor in preparing the shop for you to occupy it.
The premises—you will need to be sure that:
The location and building suit the proposed use you will make of the leased premises and to check whether you will have to renovate to enable the shop to operate.
The hours you can access the shop and open it to trade, as allowed by the lessor and the Council, will be sufficient to allow you to trade profitably.
You have, or can readily obtain, all the permits and licences required to operate the type of business you have chosen, and that the Council’s zoning for the premises does not restrict you from operating this type of business.
You have a condition report or photos to document the state of the premises when taking possession, to prevent or address disputes at the end of the lease. Agreements about equipment should also be documented.
Outgoings and expenses—you need to understand:
The extra expenses you will have to meet as outgoings, and how they may change over the term of the lease. These are set out in the Lessor’s Disclosure Statement.
The information that the lessor will provide and your rights to receive estimates to allow you to plan for these expenses.
The insurance costs you will have to meet, including any contribution to the lessor’s insurance.
When you want to sell the business
If you want to sell your business, you need to be aware of the process set out in the Retail Leases Act 1994 for assigning the lease. The lessee becomes the assignor of the lease, and the potential new lessee becomes the assignee. In brief, these are the steps:
1 Get an updated copy of the lessor’s disclosure statement. If an updated disclosure statement has not been issued during the term of your lease, request one in writing from the lessor. If it is not provided within 14 days, provide the latest version of the disclosure statement you have to the assignee (or if none exists, this requirement does not apply to you).
2 Give a copy of the assignor’s disclosure statement to the assignee (and to the lessor at least 7 clear days before the assignment if you want to be protected from on-going liability under the lease).
3 Gather, from the assignee, the following information to provide to the lessor:(a) The assignee’s name and contact details.(b) Documentation to indicate the assignee’s financial standing.(c) Business experience of the assignee.(d) Written records of statements made by the assignor or lessor which influenced the assignee in deciding to enter the assignment.
4 Provide information in point 3 to the lessor in writing, by:(a) delivering it personally, oror in any other manner referred to in section 81A of the Act.(b) leaving it at or posting it to the last known residential or business address of the lessor,
5 The lessor must respond to the request for assignment of the lease within 28 days from the time all the required information is received, or the assignment is deemed to have taken place.
6 The reasons the lessor can refuse a request for assignment of a lease are:(a) If the use of the premises is to change.(b) If the assignee (new lessee) has inadequate retail skills compared to the assignor (current lessee).(c) If the assignee has inferior financial resources to the proposed assignor.(d) If the lessee has not complied with the procedure for obtaining consent to the assignment, as set out in section 41 of the Act.(e) It the shop is in airside premises at Sydney (Kingsford-Smith) Airport and the lessor exercises the right to withhold consent to the assignment under section 80E of the Act.
General
Check with your accountant the most tax effective way to structure the payment of rent, fit-out costs and GST.
Make sure that all negotiated agreements are written into the lease.
Inspect the property and take notes and photographs prior to moving in.
Section 11A of the Retail Leases Act 1994 requires a lessee’s disclosure statement to be provided to the lessor within 7 days (or any agreed further period) of the lessee receiving the lessor’s disclosure statement. The lessee may be liable to a penalty for an offence under that Act if the lessee’s disclosure statement is not provided.
Part 2 Lessee’s disclosure statement
Advice to the lessor
1 The lessee acknowledges that the attached Part 1, Lessor’s Disclosure Statement, was received from the lessor prior to entering into the lease.
2 The lessor has made available to the lessee a copy of the proposed retail shop lease and a copy of a retail tenancy guide as prescribed by or identified in the regulations.
3 The lessee has sought/not sought independent advice in respect of the commercial terms contained in the Lessor’s Disclosure Statement and the obligations contained in the proposed retail shop lease.
4 The lessee believes that the lessee will be able to fulfil the obligations contained in the lease, including the payment of the proposed rent, outgoings and other amounts, based on the lessee’s own business projections for the business.
5 In entering into the retail shop lease, the lessee has relied on the following statements or representations made by the lessor or the lessor’s agents:Note—Matters such as agreements or representations relating to exclusivity or limitations on competing uses, sales or customer traffic should be detailed.
6 Apart from the statements or representations set out above, no other promises, representations, warranties or undertakings (other than those contained in the lease) have been made by the lessor to the lessee in respect of the premises or the business to be carried out on the premises.
Should more space be required please detail on another page.
Signed by or for and on behalf of the lessee:
Date:
sch 2: Am 1997 No 52, Sch 1 [16]. Subst 1998 No 169, Sch 1 [58]; 2005 No 90, Sch 1 [91]. Am 2006 No 58, Sch 1.29 [3].
Schedule 2A Assignor’s disclosure statement
(Section 41)
This statement is to be provided to the lessor when a lessee is requesting the lessor to agree to the assignment of a lease. In these circumstances the lessee is the assignor and the proposed new lessee is the assignee. The purpose of the form is to assure the lessor that the assignee has been made aware of the information specified as necessary for the assignment process, as set out in section 41 of the Retail Leases Act 1994. The lessor may take up to 28 days to consent to, or reject, the assignment of the lease, once the lessor receives all the information referred to in this disclosure statement. If the lessor does not respond in this period, the assignment is deemed to have been consented to.
The assignor certifies and the assignee acknowledges that:
(a) The assignor has provided the assignee with the lessor’s disclosure statement in respect of the lease together with details of any changes to the information contained in the disclosure statement since the statement was given.
(b) The assignee has been advised that there are no outstanding notices in respect of the lease.
(c) The assignee has been advised that there are no outstanding notices from any authority in respect of the retail shop.
(d) The assignee has been advised that there are/are not any encumbrances on the lease.
(e) The assignee has been advised that there are/are not any encumbrances on, or outside ownership of, any of the fixtures and fittings within the retail shop.
(f) The lessor has/has not conferred any rent concessions or other benefits on the assignor during the term of the lease. The concessions and benefits conferred on the assignor are:
(g) The assignor has provided to the assignee sales figures and relevant information as to the trading performance of the retail shop for the past three years or for such period as the lease has been in operation if that period is less than three years. The total (aggregate) sales figure for the past 3 years, or such lesser period as the lease has been in operation, is as follows:(i) (period/year) $(ii) (period/year) $(iii) (period/year) $
Note 1—
This information is to be given to the lessor in writing, by:or in any other manner referred to in section 81A of the Act.
(a) delivering it personally, or
(b) leaving it at or posting it to the last known residential or business address of the lessor,
Note 2—
Further information to be provided to the lessor about the assignee by the assignor in seeking consent to assignment is:
(a) details of the assignee
(b) documentation showing the financial standing of the assignee
(c) business experience of the assignee
(d) written statements of things said by the assignor or lessee which influenced the assignee to enter the assignment
I certify that I have provided the information set out in paragraphs (a)–(g) to the assignee.
Assignor:
Date:
I acknowledge receipt of the information as set out in paragraphs (a)–(g).
Assignee:
Date:
sch 2A: Ins 1998 No 169, Sch 1 [59]. Subst 2005 No 90, Sch 1 [91].
Schedule 3 Savings and transitional provisions
(Section 84A)
Part 1 General
1 Savings and transitional regulations
(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act and the following Acts:(2) A provision referred to in subclause (1) may, if the regulations so provide, take effect from the date of assent to the Act concerned or from a later date.(3) To the extent to which a provision referred to in subclause (1) takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
2 Meaning of “1997 Amending Act”
In this Part:1997 Amending Act means the Retail Leases Amendment Act 1997.
3 Application of 1997 amendments
Each amendment made by the 1997 Amending Act extends to leases to which this Act applies that were entered into before the commencement of the amendment, subject to the other provisions of this Part.
4 Outgoings statements and reports
Section 28 (as substituted by the 1997 Amending Act) does not apply to a report given under that section before the section was substituted. Further, section 28 (as substituted) does not apply in respect of an accounting period of a lessor that ended before the section was substituted, unless the lessor elects to have the section apply in respect of that accounting period.
5 Adjustment of outgoings contributions
The amendment to section 29 made by the 1997 Amending Act does not apply in respect of an outgoings contribution period that ended before the commencement of the amendment.
6 Advertising and promotion statements and reports
Section 55 (as substituted by the 1997 Amending Act) does not apply to a report given under that section before the section was substituted. Further, section 55 (as substituted) does not apply in respect of an accounting period of a lessor that ended before the section was substituted, unless the lessor elects to have the section apply in respect of that accounting period.
7 Mediation costs
The amendment to section 66 made by the 1997 Amending Act extends to formal mediation commenced but not completed before the commencement of the amendment.
8 Interest on claims
Section 72A does not apply to a retail tenancy claim lodged with the Commercial Tribunal before the commencement of that section.
9 Meaning of “1998 Amending Act”
In this Part:1998 Amending Act means the Retail Leases Amendment Act 1998.
10 Application of 1998 amendments
(1) The amendments made by the 1998 Amending Act do not extend:(a) to leases in existence when this clause commences, or(b) to any lease entered into under an option granted or agreement made before the commencement of this clause, orsubject to the other provisions of this Part and section 62A.(c) to any lease referred to in paragraph (a) or (b) that is assigned to another person,(2) Despite subclause (1), the amendments made to Part 8 extend to apply in relation to:(a) a retail shop lease or former lease that was entered into before the commencement of the amendments to Part 8, or under an option granted or agreement made before that commencement, and(b) a dispute that arose before the commencement of the amendments to Part 8 or that concerns a liability or obligation that arose before that commencement.
11 Relocation
Section 34A, as inserted by the 1998 Amending Act, applies to the relocation of a retail shop, if the shop is situated in a retail shopping centre and the lease is a lease to which section 57 (as in force immediately before its repeal by the 1998 Amending Act) applied immediately before its repeal.
12 Rent decreases
Section 18 (4), as amended by the 1998 Amending Act, extends to leases that were entered into before the commencement of the amendment and to which this Act applies, but only in respect of decreases in rent occurring after that commencement.
13 Recovery by lessor of GST
The substitution of section 22A by the Retail Leases Amendment Act 2002 does not affect the previous operation of that section (as originally enacted) in relation to the payment by or recovery from a lessee of the amount of any GST payable in respect of the lease before the substitution of that section.
14 Non-specific outgoings
Section 30 (3) does not apply in respect of a liability to contribute towards an outgoing of a lessor that arose before the commencement of that subsection.
15 Key-money and lease preparation expenses
Each of sections 13, 14 and 45, as in force before the amendment of the section by the Retail Leases Amendment Act 2004, continues to apply to a grant, renewal or extension that took effect before that amendment.
16 Meaning of “2005 Amending Act”
In this Part:2005 Amending Act means the Retail Leases Amendment Act 2005.
17 Prescribed businesses for definition of “retail shop”—section 3 and Schedule 1
(1) Until regulations are made for the purposes of paragraph (a) of the definition of retail shop in section 3 and Schedule 1 is repealed by regulations under subclause (2):(a) the businesses specified in Schedule 1 are taken to be prescribed for the purposes of paragraph (a) of that definition, and(b) the regulations may amend Schedule 1.(2) Regulations made for the purposes of paragraph (a) of that definition may repeal Schedule 1.
18 Application of Act to short-term leases—section 6A
(1) Section 6A (1) as inserted by the 2005 Amending Act extends to retail shop leases entered into before the commencement of section 6A.(2) Section 6A (2) as inserted by the 2005 Amending Act applies to retail shop leases entered into after the commencement of section 6A, but does not apply to or in respect of retail shop leases entered into before that commencement.(3) For the avoidance of doubt, section 6A (2) applies to a retail shop lease entered into after the commencement of section 6A by way of renewal of a retail shop lease entered into before that commencement, as referred to in section 80.
19 Amended disclosure statements—sections 11, 11A and 41 and Schedules 2 and 2A
(1) The lessor’s disclosure statement given or to be given on or before the relevant day by a prospective lessor (including the form of lessee’s disclosure statement required to be attached) may be given as if Schedule 2 had not been substituted by the 2005 Amending Act, unless the lessor elects to use the substituted forms set out in Parts 1 and 2 of that Schedule.(2) The relevant day is the last day of the period of 6 months commencing on the date of the substitution of Schedule 2 by the 2005 Amending Act.(3) The lessee’s disclosure statement to be given by a prospective lessee in response to a lessor’s disclosure statement referred to in subclause (1) is to be given in the form in which it was provided by the lessor.(4) An assignor’s disclosure statement provided, in relation to a proposed assignment of a retail shop lease, in the form set out in Schedule 2A before the substitution of Schedule 2A by the 2005 Amending Act may continue to be used in relation to that assignment on or after the date of the substitution.
20 Prescribed forms of disclosure statements—sections 11, 11A and 41 and Schedules 2 and 2A
(1) Until regulations are made prescribing forms for the purposes of sections 11 and 11A and Schedule 2 is repealed:(a) the form set out in Part 1 of Schedule 2 is taken to be prescribed for the purposes of section 11, and(b) the form set out in Part 2 of Schedule 2 is taken to be prescribed for the purposes of section 11A, and(c) the regulations may amend Schedule 2.(2) Until regulations are made prescribing a form for the purposes of section 41 and Schedule 2A is repealed:(a) the form set out in Schedule 2A is taken to be prescribed for the purposes of section 41, and(b) the regulations may amend Schedule 2A.(3) Regulations made for the purposes of sections 11 and 11A may repeal Schedule 2.(4) Regulations made for the purposes of section 41 may repeal Schedule 2A.
21 Costs before fit-out—section 13
Section 13 as inserted by the 2005 Amending Act does not apply to leases entered into before the commencement of that section.
22 Minimum 5 year term—section 16
Section 16 as amended by the 2005 Amending Act extends to leases in force at the commencement of the amendments made to that section.
23 Interest payable on security bonds—section 16M
Until regulations are made for the purposes of section 16M (2), regulations are taken to include provisions providing that:(a) the prescribed rate at which an amount equivalent to interest is payable on a security bond is the rate payable (as at the last day of the month for which interest is being calculated) by the Commonwealth Bank of Australia on a Streamline Account balance of $1,000, and(b) the interest payable on a security bond is to be compounded on 30 June and 31 December in each year.
24 Keeping of copies of receipts for security bonds—section 16O
Until regulations are made for the purposes of section 16O (3), regulations are taken to include a provision providing that a copy of a receipt given for money deposited or paid as a security bond must be kept for a term:(a) commencing on the date the money was received, and(b) ending with the date that is 6 months after the date of termination of the retail shop lease concerned.
25 Valuations by specialist retail valuer—sections 19 and 31
The amendments made to section 19 or 31 by the 2005 Amending Act do not apply to or in respect of the determination by valuation of a current market rent if a specialist retail valuer was appointed before the commencement of those amendments in relation to that valuation.
26 Outgoings estimates and statements—sections 27 and 28
(1) Section 27 (c) or 28 (b1) as inserted by the 2005 Amending Act applies, in relation to a retail shop lease entered into before or after the commencement of the paragraph, as on and from the relevant day, unless the lessor elects to act in conformity with the inserted paragraph.(2) The relevant day is the last day of the period of 6 months commencing on the date of commencement of that paragraph.(3) Section 28 (2) as inserted by the 2005 Amending Act does not apply where the auditor received the outgoings statement before the commencement of that subsection.
27 Review of current market rent determinations—section 32A
Section 32A as inserted by the 2005 Amending Act does not apply in relation to a determination made by a specialist retail valuer before the commencement of that section.
28 Lessee to be compensated for disturbance—section 34
The amendment made to section 34 by the 2005 Amending Act does not apply to retail shop leases entered into before the commencement of that amendment.
29 Relocation—section 34A
The amendments made to section 34A by the 2005 Amending Act do not apply to costs incurred before the commencement of those amendments.
30 Negotiations for renewal or extension of lease—section 44A
(1) This clause applies to a retail shop lease entered into before the commencement of section 44A as inserted by the 2005 Amending Act.(2) Section 44A applies to the lease on and from the expiry of the period of 6 months commencing on the date of commencement of that section.
31 Advertising and promotion expenditure statements—sections 54 and 55
(1) An amendment made by the 2005 Amending Act to section 54 or 55 applies, in relation to a retail shop lease entered into:(a) before the commencement of that amendment, oras on and from the relevant day, unless the lessor elects to act in conformity with that amendment.(b) after that commencement but before the relevant day,(2) The relevant day is the last day of the period of 6 months commencing on the date of commencement of the amendment to section 54 or 55.(3) Section 55 (3) as inserted by the 2005 Amending Act does not apply where the auditor received the advertising statement before the commencement of that subsection.
32 Non-provision of marketing plan or advertising and promotion statement—section 55A
Section 55A as inserted by the 2005 Amending Act extends to and in respect of retail shop leases entered into before the commencement of that section, but does not apply in relation to a lessor’s failure referred to in section 55A (1) (a) that occurred before that commencement.
33 Misleading or deceptive conduct—Division 2 of Part 7A (ss 62C–62E)
Division 2 of Part 7A of this Act extends to a retail shop lease that was entered into before the commencement of that Division, but does not apply to conduct that occurred before that commencement.
34 Lodging of claims after 3 years—section 71B
Section 71B as inserted by the 2005 Amending Act extends to a liability or obligation that arose, or conduct that occurred, before the commencement of that section.
35 Removal of proceedings to Supreme Court—section 76A
The amendments made to section 76A by the 2005 Amending Act extend to unconscionable conduct occurring before the commencement of those amendments, but do not apply in relation to proceedings pending at that commencement.
36 Appeals—section 77
The amendment made to section 77 by the 2005 Amending Act extends to unconscionable conduct occurring before the commencement of that amendment, but does not apply in relation to proceedings pending at that commencement.
sch 3: Ins 1997 No 52, Sch 1 [17]. Am 1998 No 169, Sch 1 [60] [61]; 1999 No 31, Sch 1.43 [5]; 2002 No 106, Sch 1 [8] [9]; 2004 No 84, Sch 1 [10] [11]; 2005 No 90, Sch 1 [92] [93].