RETAIL AND COMMERCIAL LEASES ACT 1995 - SECT 3
RETAIL AND COMMERCIAL LEASES ACT 1995 - SECT 3
(1) In this Act,
unless the contrary intention appears—
"accounting period" means a period fixed as an accounting period in a
retail shop lease;
"certified exclusionary clause"—see section 20K;
"collateral agreement" includes a guarantee under which the guarantor
guarantees the performance of the obligations of a lessee under a
retail shop lease;
"Commissioner" means the person holding or acting in the office of Small
Business Commissioner;
"core trading hours" means the hours for which a retail shop is required under
a retail shop lease to be kept open for business;
"demolition" of a building of which a retail shop forms part includes a
substantial repair, renovation or reconstruction of the building that cannot
be carried out practicably without vacant possession of the shop;
"disclosure statement"—see section 12;
"enclosed shopping complex" means a group of three or more retail shops under
common ownership or management with a common area through which public access
is obtained to all or some of the shops and which is locked to prevent public
access through that area when those shops are closed for business;
"Fund" means the Retail Shop Leases Fund;
"GST" means the tax payable under the GST law;
"GST law" means—
(a)
A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth;
and
(b) the
related legislation of the Commonwealth dealing with the imposition of a tax
on the supply of goods and services;
"lawyer" means a person entitled to practise the profession of law in the
State;
"lessee" means the person who has the right to occupy a retail shop under a
retail shop lease, and includes—
(a) a
sublessee; and
(b) a
prospective lessee or a former lessee;
"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) a
sublessor; and
(b) a
prospective lessor or a former lessor;
"Magistrates Court" means the Civil (Consumer and Business) Division of the
Magistrates Court;
"mediation" of a dispute includes preliminary assistance in dispute resolution
such as the giving of advice to ensure that—
(a) the
parties to the dispute are fully aware of their rights and obligations; and
(b)
there is full and open communication between the parties about the dispute;
"outgoings" means a lessor's outgoings on account of the expenses of
operating, repairing or maintaining the retail shop or a retail
shopping centre in which the retail shop is located (including rates, taxes,
levies, premiums or charges payable by the lessor) but does not include
outgoings which are directly proportional to the level of a lessee's
consumption or use and for which the lessee is required to reimburse the
lessor under the lease;
"party" means the lessor or the lessee under a retail shop lease;
"premium" means money paid, or a benefit given, to or as directed by the
lessor or the 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 a premium extends to giving a benefit);
"public company" has the same meaning as in section 9 of the
Corporations Act 2001 of the Commonwealth;
"Registrar" means the Principal Registrar of the Magistrates Court of South
Australia;
"renewal" of a retail shop lease extends to the lessor and the lessee entering
into a new retail shop lease for the retail shop (whether on the same or
different terms);
"retail shop" means—
(a)
business premises—
(i)
at which goods are sold to the public by retail; or
(ii)
at which services are provided to the public, or to which
the public is invited to negotiate for the supply of services; or
(b)
business premises classified by regulation as premises to which this Act
applies,
but does not include business premises of a class excluded by regulation from
the ambit of this definition;
"retail shop lease" or "lease" means an agreement under which a person grants
or agrees to grant to another person for value a right to occupy a retail shop
for carrying on a business—
(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;
"retail shopping centre" means a cluster of premises with the following
attributes:
(a) at
least five of the premises are retail shops; and
(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 the same
community plan under the Community Titles Act 1996 or units within the
same strata plan under the Strata Titles Act 1988 ; and
(c) the
premises are located in the one building or in two or more buildings that are
either adjoining or separated only by common areas or other areas owned by the
owner of the premises; and
(d) the
cluster of premises is promoted as, or generally regarded as constituting, a
shopping centre, shopping mall, shopping court or shopping arcade;
"statutory rights of security of tenure" means the rights conferred on a
lessee by Part 4A Division 2 and, if the retail shop lease relates to
premises in a retail shopping centre, by Part 4A Division 3;
"subsidiary" includes a subsidiary within the meaning of section 9 of the
Corporations Act 2001 of the Commonwealth.
(1a) For the purposes
of this Act—
"prescribed threshold", in relation to rent payable under a retail shop lease,
means—
(a) the
amount of $400 000 per annum exclusive of GST; or
(b) if a
greater amount is prescribed by the regulations for the purposes of this
definition and the Act—the amount so prescribed.
(2) In the
interpretation of this Act, accepted practices and interpretations in the
industry concerning the leasing of retail shops are to be taken into account.