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Queensland
RETAIL SHOP LEASES
AMENDMENT BILL 2000
Queensland
RETAIL SHOP LEASES AMENDMENT
BILL 2000
TABLE OF PROVISIONS
Section Page
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
4 Amendment of s 5 (Definitions) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
5 Amendment of s 7 (Meaning of "outgoings") . . . . . . . . . . . . . . . . . . . . . . . . 7
6 Amendment of s 9 (Meaning of "turnover") . . . . . . . . . . . . . . . . . . . . . . . . . 8
7 Amendment of s 13 (Application of Act to leases--general) . . . . . . . . . . . 8
8 Amendment of s 21 (Application of part) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
9 Amendment of s 22 (Lessor to give lease and disclosure
statement to prospective lessee) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
10 Insertion of new ss 22A22E . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
22A Prospective lessee's disclosure obligation to lessor . . . . . . . . . . . . . 10
22B Assignor's and prospective assignee's disclosure
obligations to each other . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
22C Lessor's and prospective assignee's disclosure obligations
to each other . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
22D Financial, and legal advice certificates . . . . . . . . . . . . . . . . . . . . . . 11
22E Effect of failure to comply with sections 22A22D . . . . . . . . . . . . . 12
11 Amendment of s 24 (Lessee's obligations to pay rent and outgoings) . . . . 12
12 Insertion of new s 24A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
24A GST payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
13 Amendment of s 27 (Timing and bases of rent reviews) . . . . . . . . . . . . . . . 14
14 Amendment of s 30 (Valuer may require information from lessor) . . . . . . . 15
15 Amendment of s 31 (Requirements of determination) . . . . . . . . . . . . . . . . . 15
2
Retail Shop Leases Amendment
16 Replacement of s 32 (Valuer to give determination to lessor and
lessee) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
32 Valuer to give determination to lessor and lessee . . . . . . . . . . . . . . 16
17 Amendment of s 37 (Requirements when lessee to pay lessor's
outgoings) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
18 Insertion of new s 37A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
37A Lessor's recovery of electricity charges . . . . . . . . . . . . . . . . . . . . . . . 17
19 Amendment of s 41 (Promotion and advertising) . . . . . . . . . . . . . . . . . . . . . 17
20 Amendment of s 44 (Amount of compensation) . . . . . . . . . . . . . . . . . . . . . . 17
21 Amendment of s 46 (Options to renew leases) . . . . . . . . . . . . . . . . . . . . . . . 17
22 Insertion of new pt 6, div 8A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Division 8A--Provisions about unconscionable conduct
46A Unconscionable conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
46B Matters tribunal may consider in deciding if a party's
conduct is unconscionable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
23 Insertion of new s 46C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
46C Relocating lessee's business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
24 Amendment of s 48 (Lessee's liability for costs associated with
preparation etc. of lease) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
25 Amendment of s 50 (Retail tenancy disputes about assignments
of leases) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
26 Amendment of s 52 (Requirements for resolution) . . . . . . . . . . . . . . . . . . . . 21
27 Omission of s 65 (Chief executive to refer dispute to tribunal) . . . . . . . . . . 22
28 Replacement of s 66 (Chairperson may hold directions hearing) . . . . . . . . 22
65 Chief executive must refer dispute for directions hearing . . . . . . . . 22
66 Holding directions hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
29 Insertion of new s 66A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
66A Appointment of tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
30 Insertion of new s 70A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
70A Necessary parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
31 Amendment of s 83 (Tribunals' orders) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
32 Insertion of new s 87A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
87A Order to state reasons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
3
Retail Shop Leases Amendment
33 Amendment of s 88 (Restricted right to question tribunal's
hearing and order) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
34 Amendment of s 91 (Costs) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
35 Amendment of s 94 (Exclusion of other jurisdictions) . . . . . . . . . . . . . . . . . 26
36 Amendment of pt 12 (Transitional provisions) . . . . . . . . . . . . . . . . . . . . . . . 27
124 Obligations to give disclosure statements and financial
and legal advice certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
125 Current market rent determinations . . . . . . . . . . . . . . . . . . . . . . . . . . 28
126 Relocating lessee's business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
127 Resolution for changing core trading hours . . . . . . . . . . . . . . . . . . . . 28
128 Existing retail tenancy disputes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
37 Amendment to omit headings following cross references . . . . . . . . . . . . . . 29
2000
A BILL
FOR
An Act to amend the Retail Shop Leases Act 1994
s1 6 s4
Retail Shop Leases Amendment
The Parliament of Queensland enacts-- 1
title 2
Short
Clause 1. This Act may be cited as the Retail Shop Leases Amendment Act 2000. 3
4
Commencement
Clause 2. This Act commences on a day to be fixed by proclamation. 5
amended 6
Act
Clause 3. This Act amends the Retail Shop Leases Act 1994. 7
of s 5 (Definitions) 8
Amendment
Clause 4.(1) Section 5, definitions "disclosure statement" and "specific 9
outgoings"-- 10
omit. 11
(2) Section 5-- 12
insert-- 13
` "2000 amendment Act" means the Retail Shop Leases Amendment Act 14
2000. 15
"disclosure statement", for part 5, means a statement in the approved 16
form containing the particulars prescribed under a regulation. 17
"entered into", for an assignment of a lease, means the lessor has 18
consented to the assignment. 19
s5 7 s5
Retail Shop Leases Amendment
"GST" has the meaning given under the GST Act.1 1
"GST Act" means the A New Tax System (Goods and Services Tax) Act 2
1999 (Cwlth). 3
"specific outgoings", of a lessor, means the following-- 4
(a) the lessor's outgoings that are attributable to a lessee because of 5
the lessee's direct use of the services or facilities incurring the 6
outgoings; 7
(b) an amount mentioned in section 24A(2).2 8
"tribunal legal member" means a person appointed as a tribunal panel 9
member under section 102(a).'. 10
of s 7 (Meaning of "outgoings") 11
Amendment
Clause 5.(1) Section 7(1)-- 12
insert-- 13
`(c) an amount mentioned in section 24A(2).'. 14
(2) Section 7-- 15
insert-- 16
`(1A) An outgoing mentioned in subsection (1) may be either an 17
apportionable outgoing or a specific outgoing and the sum of the 18
apportionable outgoings and specific outgoings is the lessor's outgoings.'. 19
(3) Section 7(2), `Examples of subsection (2)(b)'-- 20
omit, insert-- 21
22
`Examples for subsection (3)(b)'.
1 A New Tax System (Goods and Services Tax) Act 1999 (Cwlth), section 195--
"GST" means tax that is payable under the GST law and imposed as goods and
services tax by any of these--
(a) the A New Tax System (Goods and Services Tax Imposition--General) Act
1999; or
(b) the A New Tax System (Goods and Services Tax Imposition--Customs) Act
1999; or
(c) A New Tax System (Goods and Services Tax Imposition--Excise) Act 1999.
2 Section 24A (GST payments)
s6 8 s7
Retail Shop Leases Amendment
(4) Section 7(1A) and (2)-- 1
renumber as section 7(2) and (3). 2
of s 9 (Meaning of "turnover") 3
Amendment
Clause 6. Section 9(2)(g), `taxes'-- 4
omit, insert-- 5
`taxes, including GST,'. 6
of s 13 (Application of Act to leases--general) 7
Amendment
Clause 7.(1) Section 13(1)-- 8
omit, insert-- 9
`13.(1) Subject to subsections (2) to (7), this Act3 applies to all retail shop 10
leases whether entered into or renewed before or after 28 October 1994.'. 11
(2) Section 13(2), `However, this'-- 12
omit, insert-- 13
`This'. 14
(3) Section 13-- 15
insert-- 16
`(2A) Section 27,4 as in force immediately before the commencement of 17
the Retail Shop Leases Amendment Act 1999, continues to apply to a retail 18
shop lease entered into before the commencement, and any extension or 19
renewal of the lease, as if that Act had not commenced. 20
`(2B) Subject to subsection (5), section 27, as amended by the 21
2000 amendment Act, applies only to a retail shop lease entered into after 22
the commencement of this subsection. 23
`(2C) Section 27(8) applies only to a retail shop lease entered into after 24
28 October 1994. 25
3 See the Acts Interpretation Act 1954, section 14H (References taken to be
included in citation of law).
4 Section 27 (Timing and bases of rent reviews)
s8 9 s9
Retail Shop Leases Amendment
`(2D) Part 6, division 8A, 5 applies only to a retail shop lease entered into 1
after the commencement of the division.'. 2
(4) Section 13(3), `sections'-- 3
omit, insert-- 4
`provisions'. 5
(5) Section 13(2A) to (3)-- 6
renumber as section 13(3) to (7). 7
of s 21 (Application of part) 8
Amendment
Clause 8.(1) Section 21(c)-- 9
omit. 10
(2) Section 21-- 11
insert-- 12
`(2) Sections 22, 22A and 23 do not apply to an assignment of a retail 13
shop lease.'. 14
of s 22 (Lessor to give lease and disclosure statement to 15
Amendment
prospective lessee) 16
Clause 9.(1) Section 22, heading-- 17
omit, insert-- 18
`Lessor's disclosure obligation to prospective lessee'. 19
(2) Section 22(1), from `person'-- 20
omit, insert-- 21
`person a draft of the lease and a disclosure statement.'. 22
(3) Section 22(2)-- 23
omit. 24
(4) Section 22(4), `(3)(a)'-- 25
5 Part 6, division 8A (Provisions about unconscionable conduct)
s 10 10 s 10
Retail Shop Leases Amendment
omit, insert-- 1
`(2)(a)'. 2
(5) Section 22(3) and (4)-- 3
renumber as section 22(2) and (3). 4
of new ss 22A22E 5
Insertion
Clause 10. After section 22-- 6
insert-- 7
lessee's disclosure obligation to lessor 8
`Prospective
`22A. Before entering into a retail shop lease, the prospective lessee must 9
give the lessor a disclosure statement if the lessor-- 10
(a) asks the prospective lessee for the disclosure statement; and 11
(b) complies with section 22(1). 12
and prospective assignee's disclosure obligations to each 13
`Assignor's
other 14
`22B.(1) An assignor of a retail shop lease must give a prospective 15
assignee a disclosure statement at least 7 days before asking the lessor to 16
consent to the assignment. 17
`(2) If asked by the assignor, the prospective assignee must give a 18
disclosure statement to the assignor before the lessor is asked to consent to 19
the assignment. 20
and prospective assignee's disclosure obligations to each 21
`Lessor's
other 22
`22C.(1) At least 7 days before an assignment of a retail shop lease is 23
entered into, the lessor must give the prospective assignee a disclosure 24
statement and a copy of the lease. 25
`(2) If asked by the lessor, the prospective assignee must give a 26
disclosure statement to the lessor before the assignment is entered into. 27
s 10 11 s 10
Retail Shop Leases Amendment
and legal advice certificates 1
`Financial,
`22D.(1) If a prospective lessee of a retail shop is the lessee of less than 2
5 retail shops in Australia, and uses each shop wholly or predominantly for 3
carrying on 1 or more retail businesses, the prospective lessee, before 4
entering into the lease, must give the lessor-- 5
(a) a financial advice certificate; and 6
(b) a legal advice certificate. 7
`(2) If a prospective assignee of a retail shop lease is the lessee of less 8
than 5 retail shops in Australia, and uses each shop wholly or 9
predominantly for carrying on 1 or more retail businesses, the prospective 10
assignee, before entering into the assignment of the lease, must give the 11
lessor-- 12
(a) a financial advice certificate; and 13
(b) a legal advice certificate. 14
`(3) For subsections (1)(a) and (2)(a), a `financial advice certificate' is a 15
certificate-- 16
(a) in the approved form; and 17
(b) containing the particulars prescribed under a regulation; and 18
(c) signed by a person who-- 19
(i) is a member of 1 of the following entities-- 20
(A) Australian Society of Certified Practising Accountants; 21
(B) Institute of Chartered Accountants; 22
(C) National Institute of Accountants; and 23
(ii) holds a current practising certificate issued by the entity. 24
`(4) For subsections (1)(b) and (2)(b), a `legal advice certificate' is a 25
certificate-- 26
(a) in the approved form; and 27
(b) signed by a barrister or solicitor who is admitted to practise in 28
Queensland; and 29
(c) stating that the barrister or solicitor has given the person seeking 30
the certificate advice about the legal meaning and effect of-- 31
s 11 12 s 11
Retail Shop Leases Amendment
(i) the terms and conditions of the proposed lease, or the lease 1
the subject of the proposed assignment; and 2
(ii) the disclosure statement given to the person under this part; 3
and 4
(d) containing the other particulars prescribed under a regulation. 5
of failure to comply with sections 22A22D 6
`Effect
`22E.(1) This section applies if a person (the "disclosing person") fails 7
to give another person (the "receiving person") a document under 8
section 22A to 22D and the relevant lease or assignment is entered into. 9
`(2) A retail tenancy dispute exists between the persons, and the receiving 10
person, within the relevant period, may ask the tribunal for an order that the 11
disclosing person give the document to the receiving person.6 12
`(3) In this section-- 13
"relevant period" means-- 14
(a) for section 22A or 22D(1)--within 2 months after the lease is 15
entered into; or 16
(b) for section 22B, 22C or 22D(2)--within 2 months after the 17
assignment is entered into.'. 18
of s 24 (Lessee's obligations to pay rent and outgoings) 19
Amendment
Clause 11.(1) Section 24, heading-- 20
omit, insert-- 21
`Lessee's obligations to make particular payments'. 22
(2) Section 24(1), from `rent'-- 23
omit, insert-- 24
`the following-- 25
(a) rent; 26
6 See also section 50 (Retail tenancy disputes between lessors and lessees about
assignments of leases)
s 12 13 s 12
Retail Shop Leases Amendment
(b) if specified in the lease, the following-- 1
(i) the lessor's outgoings, or the specified part of the lessor's 2
outgoings, for the retail shopping centre or leased building in 3
which the leased shop is situated; 4
(ii) damages for breach of a term of the lease; 5
(iii) an indemnity given by the lessee to the lessor for loss or 6
damage suffered by the lessor as a result of the actions or 7
omissions of the lessee or a person acting for the lessee; 8
(iv) subject to subsection (3), interest on arrears of rent or 9
outgoings.'. 10
(3) Section 24-- 11
insert-- 12
`(2A) A retail shop lease may contain a provision requiring the lessee to 13
make a payment for interest on arrears of rent or outgoings only if the 14
interest rate, or the way in which the interest rate is to be calculated, is stated 15
in the lease.'. 16
(4) Section 24(3)-- 17
insert-- 18
`· section 24A'. 19
(5) Section 24(2A) and (3)-- 20
renumber as section 24(3) and (4). 21
of new s 24A 22
Insertion
Clause 12. After section 24-- 23
insert-- 24
ST payments 25
`G
`24A.(1) Nothing in this Act prevents a lessor from requiring a lessee to 26
pay an amount (the "GST amount") that is directly or indirectly 27
attributable to GST payable for a supply made by the lessor to the lessee 28
under the lease. 29
s 13 14 s 13
Retail Shop Leases Amendment
`(2) If a lease provides that the GST amount is to be paid by the lessee to 1
the lessor as an outgoings item, the GST amount is a specific outgoing.'. 2
of s 27 (Timing and bases of rent reviews) 3
Amendment
Clause 13.(1) Section 27(1B), `(1A)'-- 4
omit, insert-- 5
`(2)'. 6
(2) Section 27(3)-- 7
omit, insert-- 8
`(3) The basis for a rent review must be a single basis consisting of 1 of 9
the following-- 10
(a) the current market rent of the leased shop; 11
(b) an independently published index of prices, costs or wages; 12
(c) a fixed percentage of the base rent; 13
(d) a fixed actual amount; 14
(e) another basis prescribed by regulation; 15
(f) a single basis formed by a combination of 2 or more bases 16
mentioned in paragraphs (b) to (e).'. 17
(3) Section 27(4), `(2) and (3)'-- 18
omit, insert-- 19
`(4) and (5)'. 20
(4) Section 27(5), from `is the same'-- 21
omit, insert-- 22
`is-- 23
(a) for an invalid review mentioned in subsection (9), definition 24
"invalid review", paragraph (a)--the same as the rent payable 25
before the timing of the review; or 26
(b) for an invalid review mentioned in subsection (9), definition 27
"invalid review", paragraph (b)--the rent worked out on 1 of the 28
bases, chosen by the lessee, on which the review was made; or 29
s 14 15 s 15
Retail Shop Leases Amendment
(c) for an invalid review mentioned in subsection (9), definition 1
"invalid review", paragraph (c)--the rent worked out on 1 of the 2
bases, chosen by the lessee, on which the review was to be made 3
under the void provision.'. 4
(5) Section 27-- 5
insert-- 6
`(5A) It is declared that an adjustment of the rent merely to enable the 7
lessor to recover GST from the lessee is not a rent review.'. 8
(6) Section 27(6), definition "invalid review"-- 9
insert-- 10
`(c) a review under a provision of a lease that is void under 11
section 36(d) or (e).7'. 12
(7) Section 27(1A) to (6)-- 13
renumber as section 27(2) to (9). 14
of s 30 (Valuer may require information from lessor) 15
Amendment
Clause 14.(1) Section 30(2), from `a retail'-- 16
omit, insert-- 17
`the valuer, within 7 days after the lessor fails to give the information, 18
must give the lessee written notice of the lessor's failure. 19
`(2A) If the lessee is given a notice under subsection (2), a retail tenancy 20
dispute exists between the lessor and the lessee.'. 21
(2) Section 30(2A) and (3)-- 22
renumber as section 30(3) and (4). 23
of s 31 (Requirements of determination) 24
Amendment
Clause 15. Section 31-- 25
insert-- 26
7 Section 36 (Certain rent review provisions of leases void)
s 16 16 s 18
Retail Shop Leases Amendment
`(2) The determination must also state-- 1
(a) whether the current market rent includes GST; and 2
(b) if the rent includes GST, the GST amount.'. 3
of s 32 (Valuer to give determination to lessor and lessee) 4
Replacement
Clause 16. Section 32-- 5
omit, insert-- 6
to give determination to lessor and lessee 7
`Valuer
`32. The specialist retail valuer must give the valuer's determination to 8
the lessor and lessee within 1 month after the latest of the following-- 9
(a) the valuer is asked to make the determination; 10
(b) if the lessor is required to give the valuer information ("lease 11
information") under section 30--the lessor gives the lease 12
information to the valuer; 13
(c) if a retail tenancy dispute under section 30 proceeds to mediation 14
or a tribunal hearing under part 88--the lessor gives the lease 15
information to the valuer as required by or under a mediation 16
agreement made, or tribunal order given, under the part.'. 17
of s 37 (Requirements when lessee to pay lessor's 18
Amendment
outgoings) 19
Clause 17. Section 37(2)(b), `outgoings'-- 20
omit, insert-- 21
`outgoings, other than specific outgoings'. 22
of new s 37A 23
Insertion
Clause 18. After section 37-- 24
insert-- 25
8 Part 8 (Retail tenancy dispute resolution)
s 19 17 s 21
Retail Shop Leases Amendment
recovery of electricity charges 1
`Lessor's
`37A.(1) This section applies if-- 2
(a) under a retail shop lease-- 3
(i) the lessor's outgoings include an amount for electricity 4
charges; and 5
(ii) the lessee is required to pay all or part of the amount; and 6
(b) the way in which the lessor may recover the amount from the 7
lessee is stated under the Electricity Act 1994. 8
`(2) The lessor may recover the amount from the lessee only under the 9
Electricity Act 1994.'. 10
of s 41 (Promotion and advertising) 11
Amendment
Clause 19. Section 41(1)(b), `outgoings.'-- 12
omit, insert-- 13
`outgoings.9'. 14
of s 44 (Amount of compensation) 15
Amendment
Clause 20. Section 44-- 16
insert-- 17
`(1A) A tribunal, in deciding the amount of compensation payable under 18
section 43(1)(a), may have regard to how much notice of the proposed 19
relocation was given to the lessee.'. 20
of s 46 (Options to renew leases) 21
Amendment
Clause 21. Section 46(4), after `written notice'-- 22
insert-- 23
`in the approved form'. 24
9 See also section 37 (Requirements when lessee to pay lessor's outgoings). Under
the section, "outgoings" include maintenance and promotion amounts.
s 22 18 s 22
Retail Shop Leases Amendment
of new pt 6, div 8A 1
Insertion
Clause 22. After section 46-- 2
insert-- 3
`Division 8A--Provisions about unconscionable conduct10 4
conduct 5
`Unconscionable
`46A.(1) A lessor must not, in connection with a retail shop lease, engage 6
in conduct that is, in all the circumstances, unconscionable. 7
`(2) A lessee must not, in connection with a retail shop lease, engage in 8
conduct that is, in all the circumstances, unconscionable. 9
`(3) For this section, a person is not to be taken to engage in 10
unconscionable conduct in connection with a retail shop lease only because 11
the person-- 12
(a) starts legal proceedings relating to the lease; or 13
(b) refers to arbitration a dispute or claim relating to the lease; or 14
(c) fails to issue or renew the lease. 15
`(4) This section does not apply to conduct that occurred before the 16
commencement of this section. 17
tribunal may consider in deciding if a party's conduct is 18
`Matters
unconscionable 19
`46B.(1) In deciding whether a party to a retail tenancy dispute has 20
engaged in unconscionable conduct in connection with the retail shop lease, 21
the tribunal may have regard to the following matters-- 22
(a) the relative strengths of the bargaining positions of each of the 23
parties; 24
(b) whether, as a result of conduct engaged in by the party, the other 25
party was required to comply with conditions that were not 26
reasonably necessary for the protection of the other party's 27
10 For corresponding provisions, see the Trade Practices Act 1974 (Cwlth),
section 51AC (Unconscionable conduct in business transactions).
s 22 19 s 22
Retail Shop Leases Amendment
legitimate interests; 1
(c) whether the other party was able to understand any documents 2
relating to the lease; 3
(d) whether any undue influence or pressure was exerted on, or any 4
unfair tactics were used against, the other party or a person acting 5
for the other party by the party or a person acting for the party in 6
relation to the lease; 7
(e) the amount for which, and the circumstances under which, the 8
other party could have acquired an identical or equivalent lease 9
from a person other than the party; 10
(f) the extent to which the party's conduct towards the other party 11
was consistent with the party's conduct in similar transactions 12
between the party and parties like the other party; 13
(g) the requirements of any applicable industry code; 14
(h) the requirements of any other industry code, if the other party 15
acted on the reasonable belief that the party would comply with 16
the code; 17
(i) the extent to which the party unreasonably failed to disclose to the 18
other party-- 19
(i) any intended conduct of the party that might affect the other 20
party's interests; and 21
(ii) any risks to the other party arising from the party's intended 22
conduct (being risks that the party should have foreseen 23
would not be apparent to the other party); 24
(j) the extent to which the party was willing to negotiate the terms 25
and conditions of any lease with the other party; 26
(k) the extent to which the party and the other party acted in good 27
faith. 28
`(2) The tribunal may also have regard to circumstances existing before 29
the commencement of section 46A. 30
`(3) Subsections (1) and (2) do not limit the matters to which the tribunal 31
may have regard in making its decision. 32
`(4) However, the tribunal must not have regard to the following-- 33
s 23 20 s 24
Retail Shop Leases Amendment
(a) any circumstances that were not reasonably foreseeable at the time 1
of the alleged contravention of section 46A(1) or (2); 2
(b) conduct engaged in before the commencement of section 46A. 3
`(5) In this section-- 4
"applicable industry code" has the meaning given under the Trade 5
Practices Act 1974 (Cwlth), section 51ACA. 6
"industry code" has the meaning given under the Trade Practices Act 7
1974 (Cwlth), section 51ACA.11'. 8
of new s 46C 9
Insertion
Clause 23. Part 6, division 9-- 10
insert-- 11
lessee's business 12
`Relocating
`46C.(1) A lessor must not relocate the lessee's business to other 13
premises during the term of the lease, or any renewal of it, without giving 14
the lessee at least 3 months written notice of the relocation. 15
`(2) The notice must state the premises to which the lessee's business is 16
to be relocated.'. 17
of s 48 (Lessee's liability for costs associated with 18
Amendment
preparation etc. of lease) 19
Clause 24.(1) Section 48(1), from `to the'-- 20
omit, insert-- 21
`to the following-- 22
11 Trade Practices Act 1974 (Cwlth), section 51ACA--
"applicable industry code", in relation to a corporation that is a participant in an
industry, means:
(a) the prescribed provisions of any mandatory industry code relating to the
industry; and
(b) the prescribed provisions of any voluntary industry code that binds the
corporation.
"industry code" means a code regulating the conduct of participants in an industry
towards other participants in the industry or towards consumers in the industry.
s 25 21 s 26
Retail Shop Leases Amendment
(a) preparing, renewing or extending the lease; 1
(b) submitting the lease, on its expiry, for reassessment of stamp 2
duty.'. 3
(2) Section 48(2), after `for'-- 4
insert-- 5
`1 or more of the following'. 6
(3) Section 48(2)(a) to (c), `or'-- 7
omit. 8
of s 50 (Retail tenancy disputes about assignments of 9
Amendment
leases) 10
Clause 25. Section 50, heading, after `disputes'-- 11
insert-- 12
`between lessors and lessees'. 13
of s 52 (Requirements for resolution) 14
Amendment
Clause 26.(1) Section 52-- 15
insert-- 16
`(da)votes are cast by eligible lessees representing at least 50% of the 17
number of eligible shops; and'. 18
(2) Section 52(e)-- 19
omit, insert-- 20
`(e) the resolution is supported by at least 75% of the eligible lessees 21
who voted; and'. 22
(3) Section 52(da) to (f)-- 23
renumber as section 52(e) to (g). 24
s 27 22 s 28
Retail Shop Leases Amendment
of s 65 (Chief executive to refer dispute to tribunal) 1
Omission
Clause 27. Section 65-- 2
omit. 3
of s 66 (Chairperson may hold directions hearing) 4
Replacement
Clause 28. Section 66-- 5
omit, insert-- 6
executive must refer dispute for directions hearing 7
`Chief
`65.(1) Within 14 days after a retail tenancy dispute is referred to the 8
chief executive, the chief executive, by written notice, must refer the dispute 9
to a tribunal legal member to hold a directions hearing. 10
`(2) As soon as practicable after receiving the notice, the tribunal legal 11
member must advise the chief executive of the time and date on which the 12
directions hearing is to be held. 13
`(3) Subject to subsection (5), the chief executive must give the parties to 14
the dispute reasonable written notice of the time, date and place of the 15
directions hearing. 16
`(4) If requested by the tribunal legal member, the notice must include a 17
requirement that each party (the "first party"), before the directions 18
hearing, disclose to the tribunal legal member and each other party each 19
document that is-- 20
(a) in the possession or under the control of the first party; and 21
(b) directly relevant to an allegation in issue in the dispute; and 22
(c) stated in the notice. 23
`(5) If the tribunal legal member decides that a directions hearing should 24
not be held because of exceptional circumstances, the tribunal legal member 25
must give the chief executive notice of the decision. 26
directions hearing 27
`Holding
`66.(1) The provisions of subdivision 2 (other than sections 71(2) and (3) 28
s 29 23 s 29
Retail Shop Leases Amendment
and 74 12) about the conduct of, and procedure at, a tribunal's hearing of a 1
retail tenancy dispute and the tribunal's powers at the hearing apply, with the 2
necessary changes, to a directions hearing. 3
4
Examples for subsection (1)--
5
1. A reference to a tribunal hearing is a reference to a directions hearing.
6
2. A reference to the tribunal or chairperson is a reference to the tribunal legal
7
member.
`(2) At the directions hearing, the tribunal legal member may make the 8
decisions and give the directions the tribunal legal member considers 9
appropriate, including directions about the following-- 10
(a) questions of law; 11
(b) the tribunal's jurisdiction; 12
(c) discovery and inspection of documents; 13
(d) the parties' representation at the tribunal's hearing of the retail 14
tenancy dispute. 15
`(3) If the dispute is to proceed to a tribunal hearing after the directions 16
hearing, the tribunal legal member, as soon as practicable after the directions 17
hearing, must give the chief executive written notice that a tribunal hearing is 18
required.'. 19
of new s 66A 20
Insertion
Clause 29. Part 8, division 4, subdivision 2-- 21
insert-- 22
of tribunal 23
`Appointment
`66A. Within 14 days after receiving a notice under section 65(5) or 24
66(3), the chief executive must-- 25
(a) appoint a tribunal to hear the dispute; and 26
(b) give written notice to the tribunal members of their appointment 27
to hear the dispute; and 28
12 Sections 71 (Limited right of representation) and 74 (Questions to be decided by
majority of tribunal)
s 30 24 s 31
Retail Shop Leases Amendment
(c) give written notice to the parties to the dispute of the appointment 1
and composition of the tribunal to hear the dispute.'. 2
of new s 70A 3
Insertion
Clause 30. After section 70-- 4
insert-- 5
parties 6
`Necessary
`70A. The tribunal may order that a person be included as a party to the 7
dispute if-- 8
(a) asked by a party to the retail tenancy dispute; and 9
(b) the person's presence is necessary to allow the tribunal to 10
adjudicate effectually and completely on the dispute.'. 11
of s 83 (Tribunals' orders) 12
Amendment
Clause 31.(1) Section 83(1), `The'-- 13
omit, insert-- 14
`Subject to subsection (3), the'. 15
(2) Section 83(2)-- 16
insert-- 17
`(h) an order mentioned in section 22E(2).13'. 18
(3) Section 83-- 19
insert-- 20
`(2A) If the tribunal finds a party to the dispute engaged in 21
unconscionable conduct in connection with the retail shop lease, the tribunal 22
may only make 1 of the following orders based on the unconscionable 23
conduct-- 24
(a) an order requiring the party who engaged in the unconscionable 25
conduct to pay an amount to a stated person; 26
13 Section 22E (Effect of failure to comply with sections 22A22D)
s 32 25 s 33
Retail Shop Leases Amendment
(b) an order that the party who engaged in the unconscionable 1
conduct is not required to pay any amount to any person.'. 2
(4) Section 83(2A) to (4)-- 3
renumber as section 83(3) to (5). 4
of new s 87A 5
Insertion
Clause 32. After section 87-- 6
insert-- 7
to state reasons 8
`Order
`87A.(1) The tribunal's order must state the reasons for the tribunal's 9
decision on which the order is based. 10
`(2) Without limiting subsection (1), if the retail tenancy dispute includes, 11
or is about, an allegation that a party to the dispute engaged in 12
unconscionable conduct in connection with the retail shop lease, the order 13
must-- 14
(a) state the tribunal's decision relating to the allegation; and 15
(b) clearly identify any part of the order that is based on the 16
decision.'. 17
of s 88 (Restricted right to question tribunal's hearing 18
Amendment
and order) 19
Clause 33.(1) Section 88, `The'-- 20
omit, insert-- 21
`Subject to subsection (2), the'. 22
(2) Section 88-- 23
insert-- 24
`(2) If the dispute includes an allegation that a party to the dispute 25
engaged in unconscionable conduct in connection with the retail shop lease, 26
a party to the dispute may appeal to the Supreme Court against any part of 27
the order that is based on the tribunal's decision relating to the allegation. 28
`(3) An appeal under subsection (2) may be made on a matter of law or 29
s 34 26 s 35
Retail Shop Leases Amendment
fact. 1
`(4) A party to the dispute may appeal under subsection (2) only with the 2
court's leave if the part of the order appealed against-- 3
(a) is based on the tribunal's decision that the allegation of 4
unconscionable conduct is not proved; or 5
(b) is based on the tribunal's decision that the allegation of 6
unconscionable conduct is proved and-- 7
(i) does not require the party who is found to have engaged in 8
the unconscionable conduct to pay any amount to any 9
person; or 10
(ii) requires the party who is found to have engaged in the 11
unconscionable conduct to pay an amount of less than 12
$50 000 to a person. 13
`(5) A party to the dispute may appeal as of right under subsection (2) if 14
the part of the order appealed against is based on the tribunal's decision that 15
the allegation of unconscionable conduct-- 16
(a) is proved; and 17
(b) requires the party who is found to have engaged in the 18
unconscionable conduct to pay an amount of $50 000 or more to 19
a person.'. 20
of s 91 (Costs) 21
Amendment
Clause 34. Section 91(3)(b)-- 22
insert-- 23
`(iii) sought the inclusion of the party or another person as a party 24
to the dispute.'. 25
of s 94 (Exclusion of other jurisdictions) 26
Amendment
Clause 35. Section 94-- 27
insert-- 28
`(4) If an application for an order mentioned in subsection (2)(c) is made 29
s 36 27 s 36
Retail Shop Leases Amendment
to a court, the tribunal proceeding for the dispute ends only if the court-- 1
(a) grants the application; and 2
(b) makes an order that is inconsistent with allowing the tribunal 3
proceeding to continue.'. 4
of pt 12 (Transitional provisions) 5
Amendment
Clause 36.(1) Part 12, before section 123-- 6
insert-- 7
`Division 1--Transitional provisions for Act No. 47 of 1994'. 8
(2) Section 124-- 9
omit, insert-- 10
`Division 2--Transitional provisions for 2000 amendment Act 11
to give disclosure statements and financial and legal 12
`Obligations
advice certificates 13
`124.(1) If, before the commencement of this section, a lessor has given 14
a prospective lessee a disclosure statement for a retail shop lease under 15
section 22 as it existed before the commencement-- 16
(a) the lessor is taken to have complied with section 22(1)14 as it 17
existed after the commencement; and 18
(b) the prospective lessee is taken to have complied with 19
sections 22A and 22D(1).15 20
`(2) If, before the commencement of this section, an assignor has asked a 21
lessor to consent to an assignment of a retail shop lease-- 22
(a) the assignor is taken to have complied with section 22B(1);16 and 23
14 Section 22 (Lessor's disclosure obligation to prospective lessee)
15 Sections 22A (Prospective lessee's disclosure obligation to lessor) and 22D
(Financial, and legal advice certificates)
16 Section 22B (Assignor's and prospective assignee's disclosure obligations to
each other)
s 36 28 s 36
Retail Shop Leases Amendment
(b) the prospective assignee is taken to have complied with 1
sections 22B(2), 22C(2)17 and 22D(2); and 2
(c) the lessor is taken to have complied with section 22C(1). 3
market rent determinations 4
`Current
`125.(1) This section applies if-- 5
(a) before the commencement of this section, the current market rent 6
of a lease is to be determined by a specialist retail valuer; and 7
(b) on the commencement, the valuer has not given the determination 8
to the lessor and lessee under section 32.18 9
`(2) This Act, as in force immediately before the commencement of this 10
section, applies to the current market rent determination. 11
lessee's business 12
`Relocating
`126.(1) This section applies if, within 3 months after the 13
commencement of section 46C,19 a lessor relocates a lessee's business to 14
other premises during the term of the lease or of any renewal of it. 15
`(2) Section 46C does not apply to the relocation. 16
for changing core trading hours 17
`Resolution
`127.(1) This section applies if, immediately before the commencement 18
of this section, a secret ballot has not been conducted for a notice given 19
under section 52 20 before the commencement about a resolution to change 20
core trading hours for a retail shopping centre. 21
`(2) The secret ballot must be conducted and decided under section 52 as 22
in force immediately before the commencement of this section. 23
17 Section 22C (Lessor's and prospective assignee's disclosure obligations to each
other)
18 Section 32 (Valuer to give determination to lessor and lessee)
19 Section 46C (Relocating lessee's business)
20 Section 52 (Requirements for resolution)
s 37 29 s 37
Retail Shop Leases Amendment
retail tenancy disputes 1
`Existing
`128. If, on the commencement of this section, a retail tenancy dispute 2
referred to the chief executive before the commencement has not been 3
resolved, the dispute must be resolved under part 821 as in force 4
immediately before the commencement of this section.'. 5
to omit headings following cross references 6
Amendment
Clause 37.(1) This section applies to a section containing a cross reference to a 7
provision of the Act followed by the heading to the provision in round 8
brackets. 9
(2) The section is amended by omitting the brackets and the words in the 10
brackets. 11
© State of Queensland 2000
21 Part 8 (Retail tenancy dispute resolution)
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