RETAIL LEASES ACT 1994 - SCHEDULE 3
RETAIL LEASES ACT 1994 - SCHEDULE 3
SCHEDULE 3 – Savings and transitional provisions
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 or any Act that amends this Act.
(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.
Part 2 - Retail Leases Amendment Act 1997
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.
Part 3 - Retail Leases Amendment Act 1998
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, or(c) to any lease referred to in paragraph (a) or (b) that is assigned to another person,subject to the other provisions of this Part and section 62A.
(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.
Part 4 - Retail Leases Amendment Act 2002
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.
Part 5 - Retail Leases Amendment Act 2004
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.
Part 6 - Retail Leases Amendment Act 2005
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.
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, or(b) after that commencement but before the relevant day,as on and from the relevant day, unless the lessor elects to act in conformity with that amendment.
(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.
Part 7 - Retail Leases Amendment (Review) Act 2017
37 Meaning of "2017 amending Act"
In this Part--
"2017 amending Act" means the Retail Leases Amendment (Review) Act 2017 .
38 General operation of amendments
An amendment made by the 2017 amending Act extends to a lease entered into, and a disclosure statement given, before the commencement of the amendment except as otherwise provided by this Schedule.
39 Disclosure statement amendments
(1) Section 12A does not apply to a lease entered into before the commencement of that section.
(2) Section 11 (2A) extends to the termination of a lease that was entered into before the commencement of the subsection but does not apply to the termination of a lease that occurs before that commencement.
(3) An amendment made to Schedule 2 or 2A by the 2017 amending Act does not apply to a disclosure statement given before the commencement of the amendment.
40 Execution and registration of lease
The amendment made by the 2017 amending Act that substitutes sections 15 and 16 does not apply to a lease entered into before the commencement of the amendment.
41 Security bonds
(1) The amendment of section 16G by the 2017 amending Act does not apply to an application made before the commencement of the amendment.
(2) The amendment of section 16H by the 2017 amending Act does not apply to an application made before the commencement of the amendment.
(3) The amendment of section 16K by the 2017 amending Act extends to notice of a judgment or order received before the commencement of the amendment.
(4) The repeal of section 16M does not affect an entitlement to interest under that section in respect of any period before that repeal and that section (and sections 16E (2) and 16V (5)) continue to apply despite their repeal to the payment of interest in respect of any period during which a security bond was held by the Secretary before that repeal.
42 Return of bank guarantees
Section 16BA does not apply to a bank guarantee given in respect of a lease entered into before the commencement of the section.
43 Specialist retail valuers
(1) After the commencement of the amendments that provide for the appointment of specialist retail valuers by the Registrar instead of by the Tribunal, a specialist retail valuer appointed by the Tribunal is taken to have been appointed by the Registrar.
(2) A determination of current market rent completed or pending under and for the purposes of provisions of a lease implied by section 19 (a
"section 19 determination" ) becomes a determination of current market rent completed or pending under those provisions as implied by section 31 (a
"section 31 determination" ) and accordingly--(a) the appointment of a specialist retail valuer for the purposes of a section 19 determination is taken to be an appointment for the purposes of a section 31 determination, and(b) information supplied to a specialist retail valuer for the purposes of a section 19 determination is taken to have been supplied for the purposes of a section 31 determination, and(c) a pending claim against a specialist retail valuer under section 19A (3) is taken to be a claim under section 31A (3).
(3) A protection from liability conferred by section 32B (5) on a specialist retail valuer appointed by the Registrar extends to a specialist retail valuer appointed by the Tribunal before the commencement of that section.
44 Minimum 5-year lease term
(1) Sections 6A (4), 16, 21A and 48 (3) as in force before their repeal or substitution by the 2017 amending Act continue to apply to a retail shop lease in force immediately before their repeal or substitution.
(2) An election under section 6A (4) to have the benefit of section 16 cannot be made after the substitution of section 16 by the 2017 amending Act.
45 Expenses of obtaining consent of mortgagee
Sections 14 and 45 do not apply
to the seeking or accepting of payment of expenses incurred in connection with
obtaining the consent of a mortgagee before the commencement of the amendment
made by the 2017 amending Act to the definition of
"lease preparation expenses" in section 3.
46 Turnover rent
The amendment of section 20 by the 2017 amending Act does not apply in respect of a determination of rent or a component of rent made before the commencement of the amendment.
47 Consent to assignment
The amendment of section 39 by the 2017 amending Act does not apply in respect of the withholding of consent to an assignment of lease before the commencement of the amendment.
48 Change to monetary limit of Tribunal's jurisdiction
The amendment made to section 73 by the 2017 amending Act does not apply to a retail tenancy claim or unconscionable conduct claim in respect of a lease entered into before the commencement of the amendment.