South Australian Consolidated Acts

LANDLORD AND TENANT ACT 1936 - SECT 63

63—Provision relating to payments on sale or assignment void unless approved by Tribunal

        (1)         This section applies to a liability—

            (a)         that arises under an agreement between a landlord and a tenant (whether or not a commercial tenancy agreement)—

                  (i)         upon or in respect of the sale or disposal of a business conducted in premises subject to a commercial tenancy agreement between the landlord and tenant; or

                  (ii)         upon or in respect of the assignment of rights under a commercial tenancy agreement between the landlord and tenant or the subletting of premises subject to such an agreement; and

            (b)         that is calculated by reference to—

                  (i)         the consideration, or any part of the consideration, to which the tenant is entitled in respect of the transaction referred to above; or

                  (ii)         the value of the goodwill or any other asset of the business conducted in the premises subject to the commercial tenancy agreement.

        (2)         A provision in an agreement that purports to create a liability to which this section applies is void and of no effect unless approved by the Tribunal.

        (3)         The Tribunal shall not approve a provision under this section unless satisfied that the provision is, in the circumstances of the case, fair and reasonable.

        (4)         Where a tenant makes a payment to a landlord under a provision of an agreement that is void by virtue of subsection (2), the amount of that payment may be recovered by the tenant from the landlord as a debt by application to the Tribunal.