RETAIL AND COMMERCIAL LEASES ACT 1995 - SECT 4
RETAIL AND COMMERCIAL LEASES ACT 1995 - SECT 4
(1) This Act applies
to a retail shop lease if the premises to which the lease applies consist of a
retail shop or a retail shop together with an adjacent dwelling.
(2) However, this Act
does not apply to a retail shop lease—
(a) on
or after the relevant day (whether the lease was entered into before or after
that day), subject to subsection (3), during any period in respect of
which the amount of rent payable under the lease exceeds the
prescribed threshold (regardless of whether the Act applies or does not apply
to the lease at the time the lease is entered into or renewed because of the
amount of rent payable under the lease); or
(b) if
the lease is for a term of 1 month or less; or
(c) if
the right of occupation arises under—
(i)
an agreement for the sale and purchase of premises; or
(ii)
a mortgage; or
(iii)
a scheme under which a group of adjacent premises is
owned by a company and the premises comprising the group are let by the
company to persons who jointly have a controlling interest in the company; or
(d) if
the lessee is—
(i)
an ADI; or
(ii)
a body corporate authorised by law to carry on the
business of insurance; or
(iii)
the Crown or an agency or instrumentality of the Crown in
right of the State, another State or Territory, or the Commonwealth; or
(iv)
a municipal or district council or other authority with
powers and functions of local government; or
(e) if
the lessee is—
(i)
in the case of a lease entered into on or after the
relevant day—a public company, or a subsidiary of a public company,
other than a public charitable company or a subsidiary of a
public charitable company; or
(ii)
in the case of a lease entered into before the
relevant day or a lease renewed after the relevant day (whether on the same or
different terms) pursuant to a right or option conferred by a lease entered
into before the relevant day—a public company, or a subsidiary of a
public company (including a public charitable company or a subsidiary of a
public charitable company); or
(f) if,
in the case of a lease entered into on or after the relevant day—the
lessee is a body corporate whose securities are listed on a stock exchange
outside Australia and the external territories or a subsidiary of such a body
corporate; or
(g) if,
in the case of a lease entered into on or after the relevant day—
(i)
the lessor is—
(A) the Crown or an agency or
instrumentality of the Crown in right of the State; or
(B) a municipal or district council or
other authority with powers and function of local government; and
(ii)
the lessee is of a class specified by the regulations for
the purposes of this paragraph.
(3) Despite
subsection (2)(a), this Act does not apply to—
(a) a
retail shop lease—
(i)
that is lodged for registration by the lessor within
3 months after both parties have executed the lease, and in relation to
which the lessor has provided written notice of lodgement to the lessee within
1 month of lodgement; and
(ii)
that remains registered for the term of the lease; and
(iii)
under which, at the time the lease is lodged for
registration, the rent payable exceeds the prescribed threshold; or
(b) any
renewal of a retail shop lease referred to in paragraph (a)—
(i)
that is, following execution by both parties, lodged for
registration by the lessor not later than 2 months after the day on which
the lease would, but for the renewal, expire, and in relation to which the
lessor has provided written notice of lodgement to the lessee within
1 month of lodgement; and
(ii)
that remains registered for the term of the renewed
lease,
despite the fact that—
(c) the
prescribed threshold is subsequently increased such that the rent payable
under the lease or renewed lease (as the case requires) no longer exceeds the
prescribed threshold (and the Act would otherwise apply in relation to the
lease or renewed lease by virtue of the operation of subsection (2)(a));
or
(d) the
amount of rent payable under the lease or renewed lease (as the case requires)
is decreased (for example, as a result of a review of rent under the lease),
such that the rent payable under the lease or renewed lease no longer exceeds
the prescribed threshold (and the Act would otherwise apply in relation to the
lease by virtue of the operation of subsection (2)(a)).
(4)
Subsection (3)—
(a) does
not apply to, or in respect of—
(i)
a retail shop lease entered into before the relevant day
(regardless of any registration of the lease on or after the relevant day); or
(ii)
despite any other Act or law, the renewal of a
retail shop lease on or after the relevant day, pursuant to a right or option
conferred by a retail shop lease entered into before the relevant day
(regardless of any registration of the renewal of the lease on or after the
relevant day); but
(b) may
apply to, or in respect of, a new retail shop lease (whether on the same or
different terms) entered into by an existing lessee and lessor after the
relevant day.
(5) The regulations
may exclude from the application of this Act (either conditionally or
unconditionally) a specified class of retail shop leases.
(6) To avoid doubt,
this Act may, on or after the relevant day, apply, or cease to apply to a
retail shop lease of a kind referred to in subsection (2)(d), (e), (f)
or (g) depending on whether the lessee or lessor becomes, or ceases to
be, a lessee or lessor of a kind referred to in the relevant paragraph during
the term of the lease.
(7) In this
section—
"public charitable company" means a public company limited by guarantee and
registered under the Australian Charities and Not-for-profits Commission
Act 2012 of the Commonwealth;
"relevant day" means the day on which this section comes into operation.