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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Retail Leases Act 2002
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Main purpose 1
2. Commencement 2
PART 2--DEFINITIONS AND KEY CONCEPTS 3
3. Definitions 3
4. Meaning of "retail premises" 7
5. Minister may make determinations 9
6. Meaning of "common areas" of a shopping centre 9
7. When retail premises lease is entered into or assigned 10
8. Effect of assignment of retail premises lease 10
9. Meaning of "renewal" of a lease 11
10. Holding over under a retail premises lease 11
PART 3--APPLICATION OF THE ACT 12
11. Application generally 12
12. Application if lease term of less than a year 12
13. Act applies to retail premises in Victoria 13
14. Act binds the Crown 13
PART 4--ENTERING INTO OR RENEWING A RETAIL
PREMISES LEASE 14
Division 1--Entering into a Retail Premises Lease 14
15. Copy of lease to be provided at negotiation stage 14
16. Lease must be in writing 14
17. Landlord's disclosure statement 14
18. Effect of notice of termination 16
19. Notices of termination 17
20. Tenant not required to pay undisclosed contributions 17
21. Minimum 5 year term 18
22. Tenant to be given copy of lease 19
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23. Key-money and goodwill payments prohibited 20
24. Security deposits 21
25. Retail Industry Commissioner to be notified of lease 22
Division 2--Renewal of a Retail Premises Lease 23
26. Landlord's disclosure on renewal of lease 23
27. Option to renew 25
28. Obligation to notify tenant of option to renew 25
PART 5--RENT AND OUTGOINGS 27
Division 1--The Fit Out of the Premises 27
29. Meaning of "outgoings" to which a tenant contributes 27
30. Alterations to premises to enable fit out 27
31. Payment of rent when landlord's fit out not completed 28
32. Special rent--cost of fit out 29
Division 2--Determination of the Rent 29
33. Rent based on turnover 29
34. Agreement about rent based on turnover 32
Division 3--Review of the Rent 32
35. Rent reviews generally 32
36. Rent reviews based on current market rent 34
37. Confidentiality of information supplied to valuer 36
Division 4--Outgoings 37
38. Recovery of outgoings from the tenant 37
39. Liability to contribute to non-specific outgoings 38
40. Recovery by landlord of GST 38
41. Capital costs not recoverable 39
42. Depreciation not recoverable 39
43. Tenant not liable to contribute to sinking fund 39
44. Interest etc. on landlord's borrowings not recoverable 39
45. Rent etc. associated with other land not recoverable 39
46. Estimate of outgoings 40
47. Statement of outgoings 41
48. Adjustment of contributions to outgoings 42
49. Limitation on recovery of management fees 43
50. Recovery of land tax 46
51. Liability for costs associated with lease 46
52. Landlord's liability for repairs 46
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PART 6--REFURBISHMENT, RELOCATION AND OTHER
INTERFERENCES WITH TENANCY 48
Division 1--Refurbishment, Relocation etc. 48
53. Landlord to give notice of alterations and refurbishments 48
54. Tenant to be compensated for interference 48
55. Relocation of the tenant's business 50
56. Demolition 52
57. Damaged premises 53
58. Refurbishment and refitting 55
Division 2--Other Interferences with Tenancy 55
59. Restriction on whom the tenant employs or engages 55
PART 7--ASSIGNMENT AND TERMINATION OF A RETAIL
PREMISES LEASE 56
60. When the landlord can withhold consent to an assignment 56
61. Procedure for obtaining consent to assignment 57
62. Protection of assignors and guarantors 58
63. Landlord may reserve the right to refuse a sub-lease,
mortgage etc. 58
64. Notice of the landlord's intentions concerning renewal 59
PART 8--ADDITIONAL REQUIREMENTS FOR RETAIL
SHOPPING CENTRES 61
65. Part only applies to retail shopping centres 61
66. Changes to core trading hours 61
67. Confidentiality of turnover information 61
68. Availability of statistical information about the retail
shopping centre 62
69. Advertising and promotion requirements 63
70. Marketing plan for advertising and promotion 63
71. Statement and report on advertising and promotion expenditure 63
72. Unspent advertising and promotion contributions 64
73. Termination for inadequate sales prohibited 65
74. Geographical restrictions on tenant prohibited 65
75. Tenants' associations etc. 65
PART 9--UNCONSCIONABLE CONDUCT 67
76. Application of Part 67
77. Unconscionable conduct of a landlord 67
78. Unconscionable conduct of a tenant 69
79. Certain conduct is not unconscionable 72
80. Recovery of amount for loss or damage 72
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Clause Page
PART 10--DISPUTE RESOLUTION 73
Division 1--Retail Tenancy Disputes 73
81. Meaning of "retail tenancy dispute" 73
82. Part applies to current and former leases 74
Division 2--The Retail Industry Commissioner 74
83. Retail Industry Commissioner 74
84. Functions of Retail Industry Commissioner 75
Division 3--Alternative Dispute Resolution 76
85. What mediation and other alternative dispute resolution
covers 76
86. Referral of retail tenancy disputes for alternative dispute
resolution 77
87. Retail tenancy disputes must first be referred for alternative
dispute resolution 78
88. Statements made during alternative dispute resolution not
admissible 78
Division 4--The Tribunal 78
89. Jurisdiction of Tribunal 78
90. Parties to proceeding 79
91. Orders the Tribunal can make 80
92. Each party bears its own costs 80
PART 11--OTHER MATTERS 82
93. Indemnities 82
94. The Act prevails over retail premises leases, agreements etc. 82
95. Occupation of residential area under a retail premises lease 83
96. Franchise arrangements 84
97. Service of documents 84
98. Limitation of Supreme Court jurisdiction 85
99. Regulations 85
PART 12--AMENDMENT OF RETAIL TENANCIES
REFORM ACT 1998 87
100. Definitions 87
101. Application 87
102. Rent review 88
103. New sections 12A to 13A substituted 89
12A. Rent reviews based on current market rent 89
12B. Confidentiality of information supplied to valuer 91
13. Rent based on turnover 93
13A. Agreement about rent based on turnover 95
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104. New section 16 substituted 96
16. Notice of the landlord's intentions concerning renewal 96
105. Options to renew 98
106. New sections 20 to 21A substituted 99
20. Liability to contribute to non-specific outgoings 99
20A. Estimate of outgoings 100
21. Statement of outgoings 100
21A. Adjustment of contributions to outgoings 103
107. New sections 24 and 25 substituted 104
24. Landlord to give notice of alterations and
refurbishments 104
25. Landlord's liability for repairs 104
108. New section 30 substituted 106
30. Relocation of the tenant's business 106
109. Minor amendments 107
PART 13--AMENDMENT OF RETAIL TENANCIES
ACT 1986 109
110. Definitions 109
111. Application 109
112. Rent review 110
113. New sections 11 and 11A substituted 111
11. Rent based on turnover 111
11A. Agreement about rent based on turnover 113
114. Options to renew 114
115. New sections 14A to 15A substituted 116
14A. Estimate of outgoings 116
15. Statement of outgoings 116
15A. Adjustment of contributions to outgoings 119
116. New sections 17A and 17B inserted 120
17A. Relocation of the tenant's business 120
17B. Landlord's liability for repairs 121
117. Minor amendments 122
PART 14--REPEAL OF 1998 ACT AND TRANSITIONAL
PROVISIONS 124
118. Repeal of Retail Tenancies Reform Act 1998 124
119. General transitional and savings 124
120. Disclosure statements 125
121. Notification of amount of land tax 125
PART 15--CONSEQUENTIAL AND OTHER AMENDMENTS 126
122. Liquor Control Reform Act 1998 126
123. Shop Trading Reform Act 1996 126
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Clause Page
124. Victorian Civil and Administrative Tribunal Act 1998 126
PART 17A--RETAIL LEASES ACT 2002 127
77B. Any legally qualified member may make a declaration 127
ENDNOTES 128
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PARLIAMENT OF VICTORIA
Initiated in Assembly 9 October 2002
A BILL
to provide a new regulatory scheme for retail leases, to repeal the
Retail Tenancies Reform Act 1998, to amend the Retail Tenancies
Reform Act 1998 and the Retail Tenancies Act 1986, to make minor
amendments to certain other Acts and for other purposes.
Retail Leases Act 2002
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Main purpose
The main purpose of this Act is to replace the
scheme in the Retail Tenancies Reform Act
5 1998 with a new scheme to enhance--
(a) the certainty and fairness of retail leasing
arrangements between landlords and tenants;
and
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Retail Leases Act 2002
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Part 1--Preliminary
s. 2
(b) the mechanisms available to resolve disputes
concerning leases of retail premises.
2. Commencement
(1) This Part comes into operation on the day after the
5 day on which this Act receives the Royal Assent.
(2) Part 12 comes into operation immediately before
the commencement of section 118.
(3) Section 50 comes into operation on 1 July 2003.
(4) Part 13 is deemed to have come into operation at
10 the last moment of 30 June 1998.
(5) Subject to sub-section (6), the remaining
provisions of this Act come into operation on a
day or days to be proclaimed.
(6) If a provision referred to in sub-section (5) does
15 not come into operation before 1 May 2003, it
comes into operation on that day.
__________________
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Retail Leases Act 2002
Act No.
Part 2--definitions and key concepts
s. 3
PART 2--DEFINITIONS AND KEY CONCEPTS
3. Definitions
In this Act--
"accountant" means a member of--
5 (a) the Institute of Chartered Accountants
in Australia; or
(b) CPA Australia (ACN 008 392 452); or
(c) the National Institute of Accountants;
"applicable industry code" has the meaning
10 given by section 51ACA of the Trade
Practices Act 1974 of the Commonwealth;
"assignment" of a retail premises lease has a
meaning affected by section 8;
"building" includes any structure;
15 "common areas" of a retail shopping centre has
the meaning given by section 6;
"dispute" arising under or in relation to a retail
premises lease includes a dispute arising
under or in relation to the lease under a
20 provision of this Act;
"fit out" of retail premises includes the provision
or installation of finishes, fixtures, fittings,
equipment and services;
"GST" has the same meaning as in the A New
25 Tax System (Goods and Services Tax) Act
1999 of the Commonwealth;
"industry code" has the meaning given by
section 51ACA of the Trade Practices Act
1974 of the Commonwealth;
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s. 3
"key-money" means money that a tenant is to
pay, or a benefit that a tenant is to give, that
is--
(a) by way of a premium, or something
5 similar in nature to a premium, in that
there is no real consideration or no true
consideration given for the payment or
benefit (for example, it is so
disproportionate to the benefit that it
10 cannot be true consideration); and
(b) in consideration of--
(i) a lease being granted or an
agreement being made to grant a
lease; or
15 (ii) the variation of a lease; or
(iii) the renewal of a lease or the
granting of an option for the
renewal of a lease; or
(iv) consent being given to the
20 assignment of a lease or to the
sub-leasing of the premises to
which a lease relates;
"landlord" under a retail premises lease--
(a) means the person who under the lease
25 is entitled to the rent payable for the
premises; and
(b) in Part 10, includes a former landlord
(because of section 82);
"lease"--
30 (a) means a lease, sub-lease, or an
agreement for a lease or sub-lease,
whether or not in writing; and
(b) in Part 10, includes a former lease
(because of section 82);
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s. 3
"legal practitioner" means a person admitted to
legal practice in Victoria or an interstate
practitioner within the meaning of the Legal
Practice Act 1996;
5 "outgoings" means a landlord's outgoings on
account of any of the following--
(a) the expenses directly attributable to the
operation, maintenance or repair of--
(i) the building in which the retail
10 premises are located or any other
building or area owned by the
landlord and used in association
with the building in which the
retail premises are located; or
15 (ii) in the case of retail premises in a
retail shopping centre, any
building in the centre or any areas
used in association with a building
in the centre;
20 (b) rates, taxes, levies, premiums or
charges payable by the landlord
because the landlord is--
(i) the owner or occupier of a
building referred to in paragraph
25 (a) or of the land on which such a
building is erected; or
(ii) the supplier of a taxable supply,
within the meaning of the A New
Tax System (Goods and Services
30 Tax) Act 1999 of the
Commonwealth, in respect of any
such building or land;
"renewal" of a retail premises lease has the
meaning given by section 9;
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Part 2--definitions and key concepts
s. 3
"Retail Industry Commissioner" means the
Retail Industry Commissioner appointed
under section 83;
"retail premises" has the meaning given by
5 section 4;
"retail shopping centre" means a cluster of
premises that has all of these attributes--
(a) at least 5 of the premises are retail
premises;
10 (b) the premises are all owned by the same
person or have (or would have if
leased) the same landlord or the same
head landlord;
(c) the premises are located--
15 (i) in a single building; or
(ii) in 2 or more buildings that are--
(A) adjoining; or
(B) separated only by common
areas or other areas owned
20 by the owner of the retail
premises; or
(C) separated only by a road;
(d) the cluster of premises is promoted as,
or generally regarded as constituting, a
25 shopping centre, shopping mall,
shopping court or shopping arcade;
"retail tenancy dispute" in Part 10 has the
meaning given by section 81;
"specialist retail valuer" means--
30 (a) for the purposes of a valuation relating
to retail premises in a retail shopping
centre, a valuer having not less than
5 years' experience in valuing retail
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Part 2--definitions and key concepts
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premises located in regional or
sub-regional shopping centres; or
(b) for the purposes of a valuation relating
to any other retail premises, a valuer
5 having not less than 5 years' experience
in valuing retail premises;
"tenant" under a retail premises lease--
(a) means the person who under the lease
is entitled to occupy the premises; and
10 (b) in Part 10, includes a former tenant
(because of section 82);
"Tribunal" means the Victorian Civil and
Administrative Tribunal established by the
Victorian Civil and Administrative
15 Tribunal Act 1998.
4. Meaning of "retail premises"
(1) In this Act, "retail premises" means premises, or
a part of premises, that under the terms of the
lease relating to the premises or part are used, or
20 are to be used, wholly or predominantly for--
(a) the sale or hire of goods by retail or the retail
provision of services; or
(b) the carrying on of a specified business or a
specified kind of business that the Minister
25 determines under section 5 is a business to
which this paragraph applies.
(2) However, "retail premises" does not include the
following premises--
(a) premises in respect of which the rent payable
30 under the lease concerned is more than the
amount prescribed by the regulations for the
purposes of this paragraph;
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(b) premises that are used wholly or
predominantly for the carrying on of a
business by a tenant on behalf of the landlord
as the landlord's employee or agent;
5 (c) premises the tenant of which is--
(i) a listed corporation (as defined in
section 9 of the Corporations Act); or
(ii) a subsidiary (as defined in section 9 of
the Corporations Act) of such a
10 corporation;
(d) premises the tenant of which is--
(i) a body corporate whose securities are
included in an official list of a stock
market (as defined in section 9 of the
15 Corporations Act) outside Australia and
the external Territories; or
(ii) a subsidiary (as defined in section 9 of
the Corporations Act) of such a body
corporate;
20 (e) premises used wholly or predominantly for
the carrying on of a specified business or a
specified kind of business that the Minister
determines under section 5 is a business to
which this paragraph applies;
25 (f) premises of a kind that the Minister
determines under section 5 are premises to
which this paragraph applies.
(3) Regulations made for the purposes of sub-section
(2)(a) may--
30 (a) prescribe an amount; or
(b) prescribe a method by which an amount may
be calculated.
Note: This Act may not apply to certain premises because of
Part 3 (application of the Act).
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Part 2--definitions and key concepts
s. 5
5. Minister may make determinations
(1) The Minister may, by notice published in the
Government Gazette--
(a) determine that a business is a business or a
5 kind of business to which section 4(1)(b)
applies; or
(b) determine that a business is a business or a
kind of business to which section 4(2)(e)
applies; or
10 (c) determine that a kind of premises are
premises to which section 4(2)(f) applies.
(2) The powers conferred by sub-section (1) to make
an instrument are subject to the instrument being
disallowed by the Parliament.
15 (3) Section 15 and Part 5 of the Subordinate
Legislation Act 1994 apply to an instrument
made under sub-section (1) as though--
(a) the instrument were a statutory rule (within
the meaning of that Act); and
20 (b) notice of the making of the statutory rule had
been published in the Government Gazette
when the instrument was published in the
Government Gazette.
6. Meaning of "common areas" of a shopping centre
25 (1) In this Act, the "common areas" of a retail
shopping centre means the areas in or adjacent to
the centre that are under the control of the
landlord and are used or intended for use--
(a) by the public; or
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Part 2--definitions and key concepts
s. 7
(b) in common by the tenants of premises in the
centre relating to the carrying on of
businesses on those premises--
other than any areas in respect of which there is a
5 retail premises lease to which this Act applies.
(2) The "common areas" of a retail shopping centre
include--
(a) stairways, escalators and elevators; and
(b) malls and walkways; and
10 (c) parking areas; and
(d) toilets and rest rooms; and
(e) gardens and fountains; and
(f) information, entertainment, community and
leisure facilities.
15 7. When retail premises lease is entered into or assigned
For the purposes of this Act, a retail premises
lease is entered into or assigned when either of
these things happen--
(a) under the lease or assignment, the tenant
20 enters into possession of the premises with
the consent of the landlord or begins to pay
rent for the premises;
(b) the lease or assignment has been signed by
all of the parties to it.
25 8. Effect of assignment of retail premises lease
For the purposes of this Act, an assignment of a
retail premises lease is taken to be a continuation
of that lease (and not the entering into of a new
lease).
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Retail Leases Act 2002
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Part 2--definitions and key concepts
s. 9
9. Meaning of "renewal" of a lease
(1) In this Act, the "renewal" of a retail premises
lease--
(a) means the renewal of the lease--
5 (i) under an option granted under the lease
for a further term; or
(ii) by an agreement entered into before or
when the lease was entered into; or
(iii) by accepting an offer from the landlord
10 to renew the lease; and
(b) is taken not to be the entering into of a new
lease.
(2) However, if--
(a) after a retail premises lease expires, there is a
15 break in the tenant's possession of the
premises; and
(b) the tenant resumes possession of the
premises for a further term (whether or not
on the same terms and conditions as under
20 the expired lease)--
the resumption of possession of the premises is
taken not to be a renewal of the expired lease and
is instead taken to be the entering into of a new
lease for the purposes of this Act.
25 10. Holding over under a retail premises lease
If, in accordance with a retail premises lease, the
tenant continues to be in possession of the retail
premises for a period after the lease has expired,
the lease is taken to continue for the purposes of
30 this Act while the tenant is in possession of the
premises.
__________________
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Retail Leases Act 2002
Act No.
Part 3--application of the Act
s. 11
PART 3--APPLICATION OF THE ACT
11. Application generally
(1) This Act applies to a retail premises lease that is--
(a) entered into after the commencement of this
5 section; or
(b) renewed after the commencement of this
section, whether the lease was entered into
before or after that commencement.
(2) Except as provided by Part 10 (dispute
10 resolution), this Act only applies to a lease of
premises if the premises are retail premises (as
defined in section 4) at the time the lease is
entered into or renewed.
12. Application if lease term of less than a year
15 (1) This Act does not apply to a retail premises lease
for a term of less than one year.
(2) However, if the term of a retail premises lease is
less than one year and as a result of either or both
of the following--
20 (a) the lease being renewed (one or more times);
(b) the lease being continued because of this
Act--
the tenant is continuously in possession of the
retail premises for one year or more under the
25 lease, this Act applies to the lease on and from the
day on which the tenant has continuously been in
possession of the retail premises for one year.
(3) If this Act applies to a lease because of
sub-section (2)--
30 (a) section 17 (landlord's disclosure statement)
does not apply to the lease; and
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(b) section 26 (landlord's disclosure on renewal
of lease) applies to the lease with these
changes--
(i) section 26(1) is taken to provide that
5 the landlord must give the tenant the
disclosure statement referred to in that
section within 60 days after this Act
begins to apply to the lease;
(ii) section 26(3) is taken to provide that if
10 the tenant has not been given the
disclosure statement within that time,
the tenant may give the landlord the
notice referred to in that section no
earlier than 7 days and no later than
15 90 days after this Act begins to apply to
the lease;
(iii) section 26(5)(b) is taken to refer to
when this Act begins to apply to the
lease.
20 13. Act applies to retail premises in Victoria
Subject to this Part, this Act applies to a lease that
provides for the occupation of retail premises in
Victoria regardless of--
(a) where the lease was entered into; and
25 (b) whether the lease purports to be governed by
a law other than the law of Victoria.
14. Act binds the Crown
This Act binds the Crown--
(a) in right of the State of Victoria; and
30 (b) to the extent that the legislative power of the
Parliament permits, in all its other capacities.
__________________
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Retail Leases Act 2002
Act No.
Part 4--Entering into or renewing a retail premises lease
s. 15
PART 4--ENTERING INTO OR RENEWING A RETAIL
PREMISES LEASE
Division 1--Entering into a Retail Premises Lease
15. Copy of lease to be provided at negotiation stage
5 A person who, as landlord or on behalf of the
landlord--
(a) offers to enter into a retail premises lease; or
(b) advertises by any means that retail premises
are for lease--
10 must, as soon as the person enters into
negotiations with a person about the lease, give to
that person a copy of the proposed lease in writing
and a copy of the information brochure (if any)
about retail leases published by the Retail Industry
15 Commissioner.
Penalty: 50 penalty units.
16. Lease must be in writing
(1) A landlord or tenant must not enter into a retail
premises lease that is not in writing.
20 Penalty: 10 penalty units.
(2) A failure to comply with this section does not
make the retail premises lease illegal, invalid or
unenforceable.
17. Landlord's disclosure statement
25 (1) At least 7 days before entering into a retail
premises lease, the landlord must give the
tenant--
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(a) a disclosure statement in the form prescribed
by the regulations (but the layout of the
statement need not be the same as the
prescribed disclosure statement); and
5 (b) a copy of the proposed lease in writing.
(2) If a tenant has not been given the disclosure
statement before entering into a retail premises
lease, the tenant may give the landlord, no earlier
than 7 days and no later than 90 days after
10 entering into the lease--
(a) a written notice of termination; or
(b) a written notice that the tenant is withholding
payment of the rent from the day on which
the notice is given until the day on which the
15 landlord gives the tenant the disclosure
statement.
(3) If the tenant gives the landlord a notice in
accordance with sub-section (2)(b)--
(a) the tenant may withhold payment of the rent
20 in accordance with the notice until the day
on which the landlord gives the tenant the
disclosure statement; and
(b) the tenant is not liable to pay the rent
attributable to the period from and including
25 the day on which the notice was given until
and including the day on which the landlord
gives the tenant the disclosure statement; and
(c) the tenant may give the landlord a written
notice of termination at any time before the
30 end of 7 days after the landlord gives the
tenant the disclosure statement and the lease
terminates on the day the notice is given or
such later day (not being later than 90 days
after the giving of the notice) as is specified
35 in the notice.
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(4) If the premises are not available for handover to
the tenant on the date specified in the disclosure
statement, the tenant is not liable to pay the rent
attributable to a period before that date.
5 (5) If--
(a) any information provided by the landlord in
the disclosure statement is misleading, false
or incomplete; or
(b) the tenant is not given a copy of the proposed
10 lease in accordance with sub-section (1)(b)--
the tenant may give the landlord a written notice
of termination.
(6) The tenant may give a notice of termination under
sub-section (5) at any time before the end of
15 28 days after--
(a) the tenant is given the disclosure statement;
or
(b) the tenant is given a copy of the lease; or
(c) the lease is entered into--
20 whichever happens last.
18. Effect of notice of termination
(1) If a tenant under a retail premises lease gives the
landlord a notice of termination under--
(a) section 17(2) within the time allowed by that
25 section; or
(b) section 17(5) within the time allowed by
section 17(6)--
the lease terminates 14 days after the notice is
given unless the landlord gives the tenant a notice
30 of objection to the termination.
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(2) Within 14 days after being given the notice of
termination the landlord may give the tenant a
notice of objection to the termination on the
ground that--
5 (a) the landlord has acted honestly and
reasonably and ought fairly to be excused for
the contravention; and
(b) the tenant is substantially in as good a
position as the tenant would have been in if
10 there had been no contravention.
(3) If the tenant advises the landlord that the tenant
accepts the landlord's notice of objection or the
notice is upheld under Part 10, the lease does not
terminate in accordance with the notice of
15 termination despite sub-section (1).
(4) The tenant is taken to have accepted the notice of
objection if the tenant does not advise (in writing)
the landlord, within 14 days after being given the
notice, whether or not the tenant accepts it.
20 (5) The operation of a notice of termination under
section 17(2) or (5) is suspended until the effect of
a notice of objection to it is determined.
19. Notices of termination
The termination of a lease by a notice of
25 termination given in accordance with this Act
does not affect any right, privilege, obligation or
liability acquired, accrued or incurred under the
lease before the date of termination, unless the
landlord and tenant otherwise agree or it is
30 otherwise provided by this Act or determined
under Part 10.
20. Tenant not required to pay undisclosed contributions
A provision of a retail premises lease that requires
the tenant to pay or contribute towards the cost of
35 any fit out of the retail premises is void unless the
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liability to make the payment or contribution was
disclosed in a disclosure statement given to the
tenant in accordance with this Part.
21. Minimum 5 year term
5 (1) The term of a retail premises lease, including any
further term or terms provided for by an
agreement or option for the tenant to renew the
lease, must be at least 5 years or, if the term
remaining under any head lease under which the
10 landlord holds the retail premises is less than
5 years, that lesser period.
Note: The landlord or tenant may, in accordance with the
lease or this Act, be able to terminate the lease before
the end of the term.
15 (2) In applying sub-section (1), an agreement entered
into, or option conferred, after the lease was
entered into must be disregarded.
(3) This section does not apply to a renewal of a lease
if there is no break in the tenant's entitlement to
20 possession of the retail premises.
Note: This means that a renewal of a lease is not required to
be for 5 years because the minimum 5 year term
requirement applied to the lease when it was entered
into and the availability of the renewal will have been
25 taken into account in determining the term of the
lease.
(4) A lease that is entered into contrary to this section
is not illegal, invalid or unenforceable because of
that fact but the term of the lease is extended by
30 the period that is necessary to ensure the lease
complies with this section.
Note: For example, if a lease is entered into for a term of
3 years, its term is extended by 2 years to 5 years.
If a lease is entered into for a term of 2 years with an
35 option for a further 1 year after the initial 2 years, the
term of the lease is extended to 4 years (with the
option for a further 1 year after the initial 4 years).
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(5) This section does not apply to a lease if, at the
tenant's request, the Retail Industry Commissioner
certifies in writing that he or she, or a person
acting on behalf of him or her, has explained to
5 the tenant--
(a) the effect of sub-sections (1) to (4); and
(b) that the giving of the certificate will result in
this section not applying to the lease.
22. Tenant to be given copy of lease
10 (1) Within 28 days after being given a copy of the
retail premises lease signed by the tenant, the
landlord must give the tenant a copy (which may
be a photocopy) of the lease signed by the
landlord and the tenant.
15 (2) If the landlord contravenes sub-section (1), the
tenant may give the landlord a written notice of
termination at any time within 28 days after--
(a) the tenant is given a copy of the lease; or
(b) entering into the lease--
20 whichever happens last.
(3) Subject to sub-section (4), if a tenant gives the
landlord a notice of termination in accordance
with sub-section (2), the lease terminates 14 days
after the notice is given.
25 (4) Section 18 applies to a notice of termination given
under this section in the same way and to the same
extent as it applies to a notice of termination given
under section 17(2) or (5).
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23. Key-money and goodwill payments prohibited
(1) A person must not, as landlord or on behalf of a
landlord, seek or accept the payment of--
(a) key-money; or
5 (b) any consideration for the goodwill of any
business carried on at the retail premises.
Penalty: 50 penalty units.
(2) A provision of a retail premises lease is void to
the extent that it requires the payment of
10 key-money or consideration for goodwill or has
that effect.
(3) However, sub-sections (1) and (2) do not prevent
a landlord from--
(a) recovering from the tenant costs which the
15 landlord reasonably incurred in investigating
a proposed assignee of the lease or
sub-tenant of the premises; or
(b) recovering from the tenant costs which the
landlord reasonably incurred in connection
20 with--
(i) an assignment of the lease or a
sub-lease; and
(ii) obtaining any necessary consents to the
assignment or sub-lease; or
25 (c) claiming goodwill from the tenant in relation
to the sale of a business that the landlord
operated from the retail premises
immediately before its sale, if the lease was
granted to the tenant in the course of the sale
30 of the business; or
(d) receiving payment of rent in advance; or
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(e) securing the performance of the tenant's
obligations under the lease by requiring a
bond, security deposit or guarantee to be
provided from the tenant or any other person
5 (such as a requirement that the directors of a
corporation guarantee performance of the
corporation's lease obligations); or
(f) seeking and accepting payment for plant,
equipment, fixtures or fittings that are sold
10 by the landlord to the tenant in connection
with the lease being granted; or
(g) seeking and accepting payment for the grant
of a franchise in connection with the lease
being granted.
15 (4) Any payment made, or the value of any benefit
conferred, by the tenant and received by or on
behalf of the landlord contrary to this section may
be--
(a) recovered by the tenant from the landlord in
20 a court of competent jurisdiction as a debt
due; or
(b) ordered by the Tribunal under Part 10 to be
paid to the tenant by the landlord.
24. Security deposits
25 (1) A retail premises lease is taken to provide that--
(a) money paid by the tenant to the landlord as a
security deposit for the performance of the
tenant's obligations under the lease must be
held by the landlord on behalf of the tenant
30 in an interest-bearing account; and
(b) the landlord must account to the tenant for
interest earned on the deposit but the
landlord is entitled to keep the interest and
deal with it as money paid by the tenant to
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the landlord to form part of the security
deposit; and
(c) the landlord is not entitled unreasonably to
refuse to accept a guarantee from an ADI
5 (within the meaning of the Banking Act 1959
of the Commonwealth) in satisfaction of any
requirement to provide security in the form
of a deposit, bond or third party guarantee
for the performance of the tenant's
10 obligations under the lease.
(2) A tenant who has performed all of the tenant's
obligations under a retail premises lease is entitled
to the return of the security deposit.
(3) This section does not affect any lawful entitlement
15 of the landlord to appropriate security deposits.
25. Retail Industry Commissioner to be notified of lease
Within 14 days (or such other period as is agreed
between the landlord and the Retail Industry
Commissioner) after a retail premises lease is
20 signed by all of the parties to it, the landlord must
notify (in writing) the Retail Industry
Commissioner of--
(a) the address of the retail premises; and
(b) the landlord's name and address (and, if the
25 landlord is not a natural person, the name
and address of a person who can be
contacted about the lease); and
(c) the tenant's name and address; and
(d) such other matters (if any) as are prescribed
30 by the regulations.
Penalty: 10 penalty units.
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Division 2--Renewal of a Retail Premises Lease
26. Landlord's disclosure on renewal of lease
(1) If--
(a) a tenant may renew a retail premises lease
5 under an option granted under the lease or by
an agreement entered into before or when the
lease was entered into; or
(b) a landlord offers to renew a retail premises
lease--
10 at least 21 days before the end of the current term
of the lease, the landlord must give the tenant a
disclosure statement in the form prescribed by the
regulations (but the layout of the statement need
not be the same as the prescribed disclosure
15 statement).
Note: Section 12(3) changes the way that this section
applies to certain leases (for example, the time limit in
sub-section (1) is changed).
(2) The disclosure statement must include information
20 that is current from a specified date that is within
3 months before the statement is given.
(3) If the tenant has not been given the disclosure
statement before the retail premises lease is
renewed, the tenant may give the landlord, no
25 earlier than 7 days and no later than 90 days after
the lease is renewed--
(a) a written notice of termination; or
(b) a written notice that the tenant is withholding
payment of the rent from the day on which
30 the notice is given until the day on which the
landlord gives the tenant the disclosure
statement.
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(4) If the tenant gives the landlord a notice in
accordance with sub-section (3)(b)--
(a) the tenant may withhold payment of the rent
in accordance with the notice until the day
5 on which the landlord gives the tenant the
disclosure statement; and
(b) the tenant is not liable to pay the rent
attributable to the period from and including
the day on which the notice was given until
10 and including the day on which the landlord
gives the tenant the disclosure statement; and
(c) the tenant may give the landlord a written
notice of termination at any time before the
end of 7 days after the landlord gives the
15 tenant the disclosure statement and the lease
terminates on the day the notice is given or
such later day (not being later than 90 days
after the giving of the notice) as is specified
in the notice.
20 (5) If any information provided by the landlord in the
disclosure statement is misleading, false or
incomplete, the tenant may give the landlord a
written notice of termination at any time before
the end of 28 days after--
25 (a) the tenant is given the disclosure statement;
or
(b) the lease is renewed--
whichever happens last.
(6) Section 18 applies to a notice of termination given
30 under sub-section (3) or (5) in the same way and
to the same extent as it applies to a notice of
termination given under section 17(2) or (5).
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27. Option to renew
(1) If a retail premises lease contains an option
exercisable by the tenant to renew the lease for a
further term, the lease must state--
5 (a) the date until which the option is exercisable;
and
(b) how the option is to be exercised; and
(c) the terms and conditions on which the lease
is renewable under the option; and
10 (d) how the rent payable during the term for
which the lease is renewed is to be
determined.
(2) If a retail premises lease contains an option
exercisable by the tenant to renew the lease for a
15 further term, the only circumstances in which the
option is not exercisable is if--
(a) the tenant has not remedied any default
under the lease about which the landlord has
given the tenant written notice; or
20 (b) the tenant has persistently defaulted under
the lease throughout its term and the landlord
has given the tenant written notice of the
defaults.
28. Obligation to notify tenant of option to renew
25 (1) If a retail premises lease contains an option
exercisable by the tenant to renew the lease for a
further term, the landlord must notify the tenant in
writing of the date after which the option is no
longer exercisable--
30 (a) at least 6 months; and
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(b) no more than 12 months--
before that date but is not required to do so if the
tenant exercises, or purports to exercise, the
option before being notified of the date.
5 (2) If sub-section (1) requires the landlord to notify
the tenant but the landlord fails to do so within the
time specified by that sub-section--
(a) the retail premises lease is taken to provide
that the date after which the option is no
10 longer exercisable is instead 6 months after
the landlord notifies the tenant as required;
and
(b) if that date is after the term of the lease ends,
the lease continues until that date (on the
15 same terms and conditions as applied
immediately before the lease term ends); and
(c) at any time before the landlord notifies the
tenant as required, the tenant may give
written notice to the landlord terminating the
20 lease from a specified day that is--
(i) on or after the date on which the term
of the lease ends; and
(ii) before the date until which the lease
would otherwise have continued
25 because of paragraph (b).
(3) If the tenant gives the landlord a notice of
termination under sub-section (2)(c), the lease
terminates on the day specified in the notice.
(4) If an option to renew is exercised because of sub-
30 section (2)(b) after the term of the lease ends, the
lease for the further term commences on the
expiry of the previous lease, disregarding for this
purpose any period during which that lease
continued because of that sub-section.
__________________
35
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PART 5--RENT AND OUTGOINGS
Division 1--The Fit Out of the Premises
29. Meaning of "outgoings" to which a tenant
contributes
5 In this Part, "outgoings" to which a tenant under
a retail premises lease contributes or is liable to
contribute means any outgoings (as defined in
section 3) in respect of which the tenant is liable
under the lease to make any payment to the
10 landlord.
30. Alterations to premises to enable fit out
(1) A lease of retail premises located in a retail
shopping centre is taken to provide as set out in
this section if the tenant is liable under the lease to
15 pay an amount for the costs of, or associated with,
carrying out works to alter any of the following to
enable the proposed fit out of the premises--
(a) the electrical reticulation at the premises;
(b) the automatic sprinkler system at the
20 premises;
(c) the power or gas supply to the premises;
(d) the layout of air-conditioning ducts or
registers;
(e) the location of exhausts;
25 (f) telephone or electrical cabling;
(g) such other things as are prescribed by the
regulations.
(2) The works must be carried out by a person or
persons with suitable skills and experience
30 engaged, or approved, by the landlord.
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(3) The maximum cost of the works, or a basis or
formula with respect to those costs, is to be agreed
in writing by the landlord and tenant before the
works begin.
5 (4) If the landlord and tenant cannot agree on the
maximum cost of the works or a basis or formula
with respect to those costs, the maximum cost is
to be determined by an independent quantity
surveyor appointed by--
10 (a) agreement between the landlord and tenant;
or
(b) if there is no agreement, the Retail Industry
Commissioner--
and the landlord and tenant are to pay the costs of
15 the independent quantity surveyor in equal shares.
(5) The tenant is not liable to pay an amount in
respect of the works that is more than the
maximum cost agreed by the landlord and tenant,
or determined by the independent quantity
20 surveyor, as the case may be.
31. Payment of rent when landlord's fit out not completed
(1) This section applies to a retail premises lease if--
(a) the liability of the tenant to pay rent under
the lease starts when the tenant enters into
25 possession of the retail premises (whether or
not the tenant is required to enter into
possession by a specified date); and
(b) the landlord has obligations under the lease
concerning the fit out of the premises (that is,
30 the landlord is required to provide some or
all of the fit out before the tenant enters into
possession of the premises).
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(2) The retail premises lease is taken to provide
that--
(a) the tenant is not liable to pay rent, or any
other amount payable under the lease by the
5 tenant (such as an amount payable for
outgoings), in respect of any period before
the landlord has substantially complied with
the landlord's obligations concerning the fit
out of the premises; and
10 (b) the landlord is not entitled to deny the tenant
possession of the premises merely because
the landlord has not complied with those
obligations.
32. Special rent--cost of fit out
15 Apart from section 30, nothing in this Act
prevents a retail premises lease from providing for
the payment of a special rent (in addition to any
other rent) to cover the landlord's costs relating to
the fit out of the premises.
20 Division 2--Determination of the Rent
33. Rent based on turnover
(1) A provision in a retail premises lease that the rent
is to be determined either fully or partly by
reference to the turnover of the business is void
25 unless the lease specifies how the rent is to be
determined.
Note: If the provision is void, see section 34.
(2) If a retail premises lease specifies how the rent is
to be determined fully or partly by reference to the
30 turnover of the business, the tenant must give the
landlord--
(a) within 14 days after the end of each month
for which the rent is to be determined in that
way or such longer period as the lease
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provides, a statement in writing giving the
turnover during that month or other period to
which the statement relates; and
(b) within 28 days after the end of each year for
5 which the rent is to be determined in that
way or such longer period as the lease
provides and at the end of the lease or on an
assignment of the lease--
(i) a statement of the turnover; and
10 (ii) an audit report from an independent
accountant stating that in his or her
opinion the statement fairly presents the
turnover of the business during that
year or other period to which the
15 statement relates.
(3) A tenant who gives the landlord statements for a
period in accordance with sub-section (2) satisfies
any obligation under the lease to provide turnover
figures or statements for that period.
20 (4) For the purposes of sub-sections (2) and (3) and
any provision of a retail premises lease about the
determination of rent by reference to turnover,
"turnover" does not include any of the
following--
25 (a) the net amount of discounts reasonably and
properly allowed to any customer in the
usual course of business;
(b) the amount of losses incurred in the resale or
disposal of goods reasonably and properly
30 purchased from customers as trade-ins in the
usual course of business;
(c) the amount of uncollected credit accounts
written off by the tenant (except to the extent
that amounts of a credit account previously
35 written off by the tenant are recovered);
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(d) the amount of any cash or credit refund
allowed on a transaction the proceeds of
which have previously been included as
turnover, if the merchandise is returned and
5 the sale is cancelled or some or all of the fees
for the services are refunded;
(e) the amount of any instalment of purchase
money refunded to customers where a lay-by
transaction is cancelled;
10 (f) the amount of any purchase, receipt or other
similar tax (including GST) imposed on the
purchase price or cost of hire of merchandise
or services at the point of sale or hire;
(g) the amount of delivery charges;
15 (h) the price of merchandise exchanged between
stores of the tenant made solely for the
convenient operation of business and not for
the purpose of concluding a sale made at or
from the retail premises to which the lease
20 relates;
(i) the price of merchandise returned to
shippers, wholesalers or manufacturers;
(j) the amount received from the sale of the
fixtures and fittings of the tenant from the
25 premises;
(k) money received for entries in any public
lottery within the meaning of the Public
Lotteries Act 2000, other than amounts
derived as commission or fees on those
30 entries;
(l) any other matter which the landlord and the
tenant agree is not included as turnover.
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34. Agreement about rent based on turnover
(1) If--
(a) a provision of a retail premises lease that the
rent is to be determined either fully or partly
5 by reference to the turnover of the business
is void because of section 33; and
(b) the lease makes no other provision for
determining the rent--
the rent is to be as agreed in writing between the
10 landlord and tenant.
(2) If the landlord and tenant do not agree on an
amount of rent within 30 days of the landlord
giving the tenant a written notice specifying an
amount, the amount of the rent is to be determined
15 by a valuation carried out by a specialist retail
valuer appointed by--
(a) agreement between the landlord and tenant;
or
(b) if there is no agreement, the Retail Industry
20 Commissioner--
and the landlord and tenant are to pay the costs of
the valuation in equal shares.
Division 3--Review of the Rent
35. Rent reviews generally
25 (1) If a retail premises lease provides for a review of
the rent payable under the lease or under a
renewal of the lease, the lease must state--
(a) when the reviews are to take place; and
(b) the basis or formula on which the reviews
30 are to be made.
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(2) The basis or formula on which a rent review is to
be made must be one of the following--
(a) a fixed percentage;
(b) an independently published index of prices
5 or wages;
(c) a fixed annual amount;
(d) the current market rent of the retail premises;
(e) a basis or formula prescribed by the
regulations.
10 Note: For reviews based on the current market rent of the
retail premises, see section 36.
(3) A provision in a retail premises lease is void to the
extent that it purports to preclude, or prevents or
enables a person to prevent, the reduction of the
15 rent or to limit the extent to which the rent may be
reduced.
(4) However, sub-section (3) does not apply to a
provision that uses--
(a) a basis or formula referred to in sub-section
20 (2)(a), (b) or (c); or
(b) a prescribed basis or formula referred to in
sub-section (2)(e) that is also prescribed as a
basis or formula to which sub-section (3)
does not apply.
25 (5) A rent review is to be conducted as early as
practicable within the time provided by the lease.
If the landlord has not initiated the review within
90 days after the end of that time, the tenant may
initiate the review.
30 (6) A rent review provision in a retail premises lease
is void if the lease does not specify how the
review is to be made.
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(7) If a provision in a retail premises lease that
provides for a review of the rent payable under the
lease does not comply with sub-section (2), the
rent is to be--
5 (a) as agreed between the landlord and tenant; or
(b) if there is no agreement within 30 days after
the landlord gives the tenant, or the tenant
gives the landlord, a written notice
specifying an amount of rent for the purposes
10 of the review, the amount determined by a
specialist retail valuer appointed by the
Retail Industry Commissioner as the current
market rent of the retail premises.
(8) The landlord and tenant are to pay the costs of a
15 valuation referred to in sub-section (7)(b) in equal
shares.
36. Rent reviews based on current market rent
(1) A retail premises lease that provides for a rent
review to be made on the basis of the current
20 market rent of the premises is taken to provide as
set out in sub-sections (2) to (6).
(2) The current market rent is taken to be the rent
obtainable at the time of the review in a free and
open market between a willing landlord and
25 willing tenant in an arm's length transaction
having regard to these matters--
(a) the provisions of the lease;
(b) the rent that would reasonably be expected to
be paid for the premises if they were
30 unoccupied and offered for lease for the
same, or a substantially similar, use to which
the premises may be put under the lease;
(c) the landlord's outgoings to the extent to
which the tenant is liable to contribute to
35 those outgoings;
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(d) rent concessions and other benefits offered to
prospective tenants of unoccupied retail
premises--
but the current market rent is not to take into
5 account the value of goodwill created by the
tenant's occupation or the value of the tenant's
fixtures and fittings.
(3) If the landlord and tenant do not agree on what the
amount of that rent is to be, it is to be determined
10 by a valuation carried out by a specialist retail
valuer appointed by--
(a) agreement between the landlord and tenant;
or
(b) if there is no agreement, the Retail Industry
15 Commissioner--
and the landlord and tenant are to pay the costs of
the valuation in equal shares.
(4) The landlord must, within 14 days after a request
by the specialist retail valuer, supply the valuer
20 with relevant information about leases for retail
premises located in the same building or retail
shopping centre to assist the valuer to determine
the current market rent.
Penalty: 50 penalty units.
25 (5) In determining the amount of the rent, the
specialist retail valuer must take into account the
matters set out in sub-section (2).
(6) The valuation must--
(a) be in writing; and
30 (b) contain detailed reasons for the specialist
retail valuer's determination; and
(c) specify the matters to which the valuer had
regard in making the determination.
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(7) The specialist retail valuer--
(a) must carry out the valuation within 45 days
after accepting the appointment; and
(b) may apply to the Tribunal under Part 10 for
5 an order that a landlord comply with a
request under sub-section (4).
37. Confidentiality of information supplied to valuer
(1) A specialist retail valuer who is supplied with
information by a landlord or tenant for the
10 purpose of determining under section 36 the
current market rent for a retail premises lease
must not--
(a) use or permit the use of the information for
any purpose other than to determine the
15 current market rent for the lease concerned;
or
(b) communicate or divulge that information to
any other person or permit that information
to be communicated or divulged to any other
20 person.
Penalty: 50 penalty units.
(2) However, sub-section (1) does not prevent the
specialist retail valuer--
(a) communicating or divulging the information
25 to a court, the Tribunal or the Retail Industry
Commissioner, or permitting another person
to do so; or
(b) using, communicating or divulging the
information or permitting another person to
30 do so--
(i) in accordance with the consent of both
the landlord and tenant; or
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(ii) in a way that does not disclose
information identifying a particular
lease or tenant, or relating to a tenant's
business, for the purpose of specifying
5 the matters to which the valuer had
regard in making the determination
concerned.
(3) A specialist retail valuer who contravenes this
section is liable to pay to the landlord or tenant
10 concerned compensation for any loss or damage
suffered by the landlord or tenant as a result of the
information being used, communicated or
divulged.
(4) The amount of the compensation is the amount
15 that is--
(a) agreed between the valuer and the person
seeking compensation; or
(b) if there is no agreement, determined under
Part 10 (dispute resolution).
20 Division 4--Outgoings
38. Recovery of outgoings from the tenant
(1) The tenant under a retail premises lease is not
liable to pay an amount to the landlord in respect
of outgoings except in accordance with provisions
25 of the lease that specify--
(a) the outgoings that are to be regarded as
recoverable; and
(b) in a manner consistent with the regulations,
how the amount of those outgoings will be
30 determined and how they will be apportioned
to the tenant; and
(c) how those outgoings or any part of them may
be recovered by the landlord from the tenant.
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(2) The regulations may prescribe the manner in
which the amount of any specified outgoings or
classes of outgoings may be determined and
apportioned to a tenant.
5 39. Liability to contribute to non-specific outgoings
(1) A tenant under a lease of retail premises located in
a retail shopping centre is only liable to contribute
towards an outgoing of the landlord that does not
benefit any specific retail premises in the centre if
10 the retail premises are one of the premises that
benefit from the outgoing.
(2) A tenant under a lease of retail premises located in
a retail shopping centre is not liable to contribute
towards an outgoing of the landlord in accordance
15 with sub-section (1) in excess of an amount
calculated as prescribed by the regulations.
40. Recovery by landlord of GST
(1) An agreement that was made between a landlord
and tenant of retail premises before this section
20 commenced (whether or not the agreement is
contained in a retail premises lease) is valid, and
is taken at all relevant times to have been validly
made, to the extent to which--
(a) it provides for the payment by, or recovery
25 from, the tenant of the amount of any GST
payable in respect of the lease; and
(b) it complies with the guidelines published by
the Australian Competition and Consumer
Commission in March 2000 entitled "Price
30 Exploitation and the New Tax System:
General Principles, Information and
Guidelines on When Prices Contravene
Section 75AU of the Trade Practices Act
1974".
35 (2) Sub-section (1) has effect despite anything else in
this Act.
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41. Capital costs not recoverable
A provision in a retail premises lease is void to the
extent that it requires the tenant to pay an amount
in respect of the capital costs of--
5 (a) the building in which the retail premises are
located; or
(b) any building in a retail shopping centre in
which the retail premises are located; or
(c) any areas used in association with a building
10 referred to in paragraph (a) or (b); or
(d) plant in a building referred to in
paragraph (a) or (b).
42. Depreciation not recoverable
A provision in a retail premises lease is void to the
15 extent that it requires the tenant to pay an amount
in respect of depreciation.
43. Tenant not liable to contribute to sinking fund
A provision in a retail premises lease is void to the
extent that it requires the tenant to make a
20 contribution to a sinking fund to provide for
capital works.
44. Interest etc. on landlord's borrowings not recoverable
A provision in a retail premises lease is void to the
extent that it requires the tenant to pay an amount
25 in respect of interest or other charges incurred by
the landlord in respect of amounts borrowed by
the landlord.
45. Rent etc. associated with other land not recoverable
A provision in a retail premises lease is void to the
30 extent that it requires the tenant to pay an amount
in respect of--
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(a) rent payable under any head lease under
which the landlord holds the retail premises;
or
(b) rent or other costs associated with land other
5 than--
(i) land on which the building or retail
shopping centre of which the retail
premises forms part is located; or
(ii) land of the landlord used by, or for the
10 benefit of, the tenants conducting
business in that building or retail
shopping centre or in connection with
trading in that building or retail
shopping centre.
15 46. Estimate of outgoings
(1) A retail premises lease is taken to provide as set
out in this section.
(2) The landlord must give the tenant a written
estimate of the outgoings to which the tenant is
20 liable to contribute under the lease that itemises
those outgoings.
(3) The tenant must be given the estimate of
outgoings--
(a) before the lease is entered into; and
25 (b) in respect of each of the landlord's
accounting periods during the term of the
lease, at least one month before the start of
that period.
(4) The tenant is not liable to contribute to any
30 outgoings of which an estimate is required to be
given to the tenant as set out in this section until
the tenant is given that estimate.
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47. Statement of outgoings
(1) A retail premises lease is taken to provide as set
out in this section.
(2) The landlord must give the tenant a written
5 statement that details all expenditure by the
landlord, in each of the landlord's accounting
periods during the term of the lease, on account of
outgoings to which the tenant is liable to
contribute.
10 (3) The landlord must do so--
(a) at least once in relation to expenditure during
each of the landlord's accounting periods
during the term of the lease; and
(b) within one month after the end of the
15 accounting period to which it relates.
(4) The outgoings statement may relate to more than
one tenant as long as each tenant to which it
relates can ascertain from the statement the details
relevant to the tenant.
20 (5) The outgoings statement must be--
(a) prepared in accordance with relevant
principles and disclosure requirements of
applicable accounting standards (in force
from time to time) made by the Australian
25 Accounting Standards Board; and
(b) in the case of a statement given under sub-
section (3)(b), accompanied by a report
prepared by a registered company auditor
(within the meaning of the Corporations Act)
30 that states whether--
(i) the statement correctly states the
landlord's expenditure during the
accounting period in respect of
outgoings to which the tenant is liable
35 to contribute; and
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(ii) the total amount of estimated outgoings
for that period (as shown in the
estimate of outgoings given to the
tenant) exceeded the total actual
5 expenditure by the landlord in respect
of those outgoings during that period.
(6) However, the outgoings statement given under
sub-section (3)(b) need not be accompanied by an
auditor's report if it--
10 (a) does not relate to any outgoings other than--
(i) GST; and
(ii) land tax and water, sewerage and
drainage rates and charges; and
(iii) municipal council rates and charges;
15 and
(iv) insurance; and
(v) any other outgoing of a kind prescribed
by the regulations; and
(b) is accompanied by copies of assessments,
20 invoices, receipts or other proof of payment
for all expenditure by the landlord included
in the statement.
(7) If requested by the tenant, the landlord must make
available for inspection by the tenant, or by a
25 representative of the tenant, copies of all
accounting documents on which the outgoings
statement is based.
48. Adjustment of contributions to outgoings
(1) A retail premises lease is taken to provide as set
30 out in this section.
(2) There is to be an adjustment between the landlord
and tenant for each of the landlord's accounting
periods during the term of the lease to take
account of any underpayment or overpayment by
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the tenant in respect of outgoings during that
period.
(3) The adjustment is to take place--
(a) within one month after the landlord gives the
5 tenant the outgoings statement under
section 47 for the period; or
(b) within 4 months after the end of the period--
whichever is earlier.
(4) The adjustment is to be calculated on the basis of
10 the difference between--
(a) the total amount of outgoings in respect of
which the tenant contributed (that is, the
estimated total expenditure by the landlord
on outgoings during the period); and
15 (b) the total actual expenditure by the landlord in
respect of those outgoings during the period,
but taking into account only expenditure
properly and reasonably incurred by the
landlord in the payment of those outgoings.
20 49. Limitation on recovery of management fees
(1) A provision of a retail premises lease is void to
the extent that it makes the tenant liable to pay an
amount for management fees unless--
(a) the management fees--
25 (i) relate to the management of the
building in which the retail premises
are located or, if the retail premises are
located in a retail shopping centre, that
centre; and
30 (ii) are exclusive of salaries and other
administrative costs related to the
operation of that building or centre; and
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(b) the lease, or a disclosure statement given to
the tenant in accordance with Part 4,
specifies--
(i) the amount of the management fees for
5 any accounting period of the landlord
during the term of the lease; and
(ii) a rate, or a method for calculating a
rate, for working out the amount for
which the tenant is liable for that
10 period.
(2) If, subject to sub-section (1), a tenant was liable
under a retail premises lease to pay an amount for
management fees for the landlord's previous
accounting period, the amount that the tenant is
15 liable under that lease to pay for the landlord's
current accounting period must not exceed the
greater of the following amounts--
(a) the amount for management fees that the
tenant was liable to pay for the previous
20 accounting period;
(b) the amount calculated using this formula (as
adjusted, if appropriate, by sub-section
(3))--
B
A×
C
25 where--
"A" is the amount for management fees that
the tenant was liable to pay for the
previous accounting period; and
"B" is the All Groups Consumer Price Index
30 number (for Melbourne) published by
the Australian Statistician for the
quarter in which the current accounting
period started; and
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"C" is the All Groups Consumer Price Index
number (for Melbourne) published by
the Australian Statistician for the
quarter in which the previous
5 accounting period started.
(3) The amount calculated using the formula in
sub-section (2)(b) is adjusted--
(a) if the tenant was liable for management fees
for only part of the previous accounting
10 period, by--
(i) multiplying the amount by the total
number of days in the previous
accounting period; and
(ii) dividing that result by the number of
15 days in the part of the previous
accounting period for which the tenant
was liable for management fees; and
(b) if the tenant is liable for management fees
for only part of the current accounting
20 period, by--
(i) multiplying the amount by the number
of days in the part of the current
accounting period for which the tenant
is liable for management fees; and
25 (ii) dividing that result by the total number
of days in the current accounting
period.
(4) Where the retail premises are located in a retail
shopping centre, if one-half of the tenants in the
30 centre who are liable under retail premises leases
to pay an amount for management fees for an
accounting period of the landlord agree in writing
that sub-section (2) is not to apply in respect of
that period, that sub-section does not apply to any
35 of the tenants in that centre in respect of that
period.
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(5) If the Australian Statistician changes the reference
base for the All Groups Consumer Price Index
number (for Melbourne) for a quarter mentioned
in sub-section (2), the new reference base is to be
5 used after the change.
50. Recovery of land tax
A provision of a retail premises lease is void to
the extent that it makes the tenant liable to pay an
amount for tax for which the landlord is liable
10 under the Land Tax Act 1958.
Note: The application of this section is affected by
section 121 (notification of amount of land tax).
51. Liability for costs associated with lease
(1) A landlord under a retail premises lease is not able
15 to claim from any person (including the tenant)
the landlord's legal or other expenses relating to--
(a) the negotiation, preparation or execution of
the lease; or
(b) obtaining the consent of a mortgagee to the
20 lease; or
(c) the landlord's compliance with this Act.
(2) However, sub-section (1) does not prevent a
landlord from claiming the reasonable legal or
other expenses incurred by the landlord in
25 connection with an assignment of the lease or a
sub-lease, including investigating a proposed
assignee or sub-tenant and obtaining any
necessary consents to the assignment or sub-lease.
52. Landlord's liability for repairs
30 (1) A retail premises lease is taken to provide as set
out in this section.
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(2) The landlord is responsible for maintaining in
good repair--
(a) the structure of, or fixtures in, the retail
premises; or
5 (b) plant or equipment at the retail premises; or
(c) the appliances, fittings or fixtures provided
under the lease by the landlord relating to the
gas, electricity, water, drainage or other
services--
10 not being fixtures, plant, equipment, appliances or
fittings that the tenant is entitled to remove at the
end of the lease.
(3) The tenant may arrange for urgent repairs to be
carried out to those things if--
15 (a) the repairs are necessary to fix or remedy a
fault or damage that has or causes a
substantial effect on or to the tenant's
business at the premises; and
(b) the tenant is unable to get the landlord or the
20 landlord's agent to carry out the repairs
despite having taken reasonable steps to
arrange for the landlord or agent to do so.
(4) If the tenant carries out those repairs--
(a) the tenant must give the landlord written
25 notice of the repairs and the cost within
14 days after the repairs are carried out; and
(b) the landlord is liable to reimburse the tenant
for the reasonable cost of the repairs.
__________________
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PART 6--REFURBISHMENT, RELOCATION AND OTHER
INTERFERENCES WITH TENANCY
Division 1--Refurbishment, Relocation etc.
53. Landlord to give notice of alterations and
5 refurbishments
A retail premises lease is taken to provide that the
landlord must not start to carry out any alteration
or refurbishment of the building or retail shopping
centre in which the retail premises are located
10 which is likely to affect adversely the business of
the tenant unless--
(a) the landlord has notified the tenant in writing
of the proposed alteration or refurbishment at
least 60 days before it is started; or
15 (b) the alteration or refurbishment is necessary
because of an emergency and the landlord
has given the tenant the maximum period of
notice that is reasonably practicable in the
circumstances.
20 54. Tenant to be compensated for interference
(1) A retail premises lease is taken to provide as set
out in this section.
(2) The landlord is liable to pay to the tenant
reasonable compensation for loss or damage
25 (other than nominal damage) suffered by the
tenant because the landlord or a person acting on
the landlord's behalf--
(a) substantially inhibits the tenant's access to
the retail premises; or
30 (b) unreasonably takes action that substantially
inhibits or alters the flow of customers to the
retail premises; or
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(c) unreasonably takes action that causes
significant disruption to the tenant's trading
at the retail premises; or
(d) fails to take reasonable steps to prevent or
5 stop significant disruption within the
landlord's control to the tenant's trading at
the retail premises; or
(e) fails to rectify as soon as practicable--
(i) any breakdown of plant or equipment
10 that is not under the tenant's care or
maintenance; or
(ii) any defect in the retail premises or in
the building or retail shopping centre in
which the retail premises are located,
15 other than a defect due to a condition
that would have been reasonably
apparent to the tenant when entering
into or renewing the lease or when the
tenant accepted assignment of the lease;
20 or
(f) neglects adequately to clean, maintain or
repair the building or retail shopping centre
in which the retail premises are located (but
not the retail premises themselves).
25 (3) This section does not apply to action taken by a
landlord--
(a) as a reasonable response to an emergency; or
(b) in compliance with any duty imposed by or
under an Act or resulting from a requirement
30 imposed by a body acting under the authority
of an Act.
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(4) The amount of the compensation is the amount
that is--
(a) agreed between the landlord and the tenant;
or
5 (b) if there is no agreement, determined under
Part 10 (dispute resolution).
55. Relocation of the tenant's business
(1) A retail premises lease that provides for--
(a) relocation of the tenant's business; or
10 (b) termination of the lease and offer of a new
lease of alternative retail premises--
is taken to provide as set out in this section.
(2) The landlord cannot require the tenant's business
to be relocated unless the landlord has provided
15 the tenant with details of a proposed
refurbishment, redevelopment or extension that
are sufficient to indicate a genuine proposal that--
(a) is to be carried out within a reasonably
practicable time after the relocation; and
20 (b) cannot be carried out practicably without
vacant possession of the retail premises.
(3) The landlord cannot require the tenant's business
to be relocated unless the landlord has given the
tenant at least 3 months' written notice of the
25 relocation with details of alternative comparable
retail premises to be made available to the tenant.
(4) The tenant is entitled to be offered a new lease of
the alternative retail premises on the same terms
and conditions as the existing lease except that--
30 (a) the term of the new lease is to be the same as
the remaining term of the existing lease; and
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(b) the rent for the alternative retail premises is
to be the same as the rent for the existing
retail premises, adjusted to take into account
the difference in the commercial values of
5 the premises at the time of relocation.
(5) Within one month after being given a relocation
notice, the tenant may give the landlord a written
notice of termination and the lease terminates
3 months after the relocation notice was given or
10 at such other time as the landlord and tenant
agree.
(6) If the tenant does not give a notice of termination
in accordance with sub-section (5), the tenant is
taken to have accepted the offer of a lease--
15 (a) on the terms and conditions referred to in
sub-section (4); or
(b) on the terms and conditions that are agreed
by the landlord and tenant.
(7) The tenant is entitled to payment by the landlord
20 of the tenant's reasonable costs of the relocation,
including (but not limited to) the costs of
dismantling and reinstalling or modifying or
replacing any fixtures and fittings and legal costs.
(8) If the landlord and tenant cannot agree on the
25 amount to which the tenant is entitled under sub-
section (7), that amount is to be determined by an
independent quantity surveyor appointed by--
(a) agreement between the landlord and tenant;
or
30 (b) if there is no agreement, the Retail Industry
Commissioner--
and the landlord and tenant are to pay the costs of
the independent quantity surveyor in equal shares.
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(9) The landlord is not liable to pay an amount under
sub-section (7) that is more than the amount
agreed by the landlord and tenant, or determined
by the independent quantity surveyor, as the case
5 may be.
Note: This section sets out what the tenant is entitled to but
does not prevent the tenant from accepting other
arrangements when the details of a relocation are
being negotiated.
10 56. Demolition
(1) A retail premises lease that provides for
termination of the lease on the ground of proposed
demolition of the building in which the retail
premises are located is taken to provide as set out
15 in this section.
(2) The landlord cannot terminate the lease on that
ground unless the landlord has--
(a) provided the tenant with details of the
proposed demolition that are sufficient to
20 indicate a genuine proposal to demolish the
building within a reasonably practicable time
after the lease is to be terminated; and
(b) given the tenant at least 6 months' written
notice of the termination date.
25 (3) If the landlord gives the tenant a notice of
termination in accordance with sub-section (2),
the tenant may terminate the lease before the
termination date by giving the landlord not less
than 7 days' written notice.
30 (4) If the lease is terminated by the landlord in
accordance with sub-section (2), the landlord is
liable to pay the tenant reasonable
compensation--
(a) if the demolition of the building is not
35 carried out, or not carried out within a
reasonably practicable time after the
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termination date, for damage suffered by the
tenant as a consequence of the early
termination of the lease; and
(b) whether or not the demolition of the building
5 is carried out, for the fit out of the retail
premises to the extent that the fit out was not
provided by the landlord.
(5) However, the landlord is not liable to pay
compensation for the damage mentioned in
10 sub-section (4)(a) if the landlord establishes that
when the notice was given there was a genuine
proposal to demolish the premises within a
reasonably practicable time after the termination
date.
15 (6) The amount of the compensation is the amount
that is--
(a) agreed between the landlord and the tenant;
or
(b) if there is no agreement, determined under
20 Part 10 (dispute resolution).
(7) For the purposes of this section, "demolition" of
the building in which retail premises are located
includes any substantial repair, renovation or
reconstruction of the building that cannot
25 practicably be carried out without vacant
possession of the premises.
57. Damaged premises
(1) A retail premises lease is taken to provide the
following if the retail premises, or the building in
30 which the premises are located, is damaged--
(a) except where the tenant caused the damage,
the tenant is not liable to pay rent, or any
amount in respect of outgoings or other
charges, that is attributable to any period
35 during which the premises cannot be used
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under the lease or are inaccessible due to that
damage; and
(b) except where the tenant caused the damage,
if the premises can be used under the lease
5 but that use is reduced to some extent by the
damage, the tenant's liability for rent, and
any amount in respect of outgoings or other
charges, that is attributable to any period
during which the use is reduced is decreased
10 to the same extent; and
(c) if the landlord reasonably considers that the
extent of damage makes its repair
impracticable or undesirable and notifies the
tenant in writing of that, the landlord or
15 tenant may terminate the lease by giving not
less than 7 days' written notice of
termination to the other party; and
(d) if the landlord fails to repair the damage
within a reasonable time after the tenant asks
20 the landlord in writing to do so, the tenant
may terminate the lease by giving not less
than 7 days' written notice of termination to
the landlord; and
(e) this sub-section does not affect any right of
25 the landlord to recover damages from the
tenant in respect of any damage covered by
this sub-section.
(2) A provision of a retail premises lease is void to
the extent that it has the effect of limiting the
30 liability of a party to the lease to pay
compensation to another party to the lease in
respect of damage to the retail premises or the
building in which the premises are located.
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(3) Nothing in this section prevents the parties to a
lease from terminating the lease by agreement if
the retail premises or the building in which the
premises are located is damaged or destroyed.
5 58. Refurbishment and refitting
A provision in a retail premises lease requiring the
tenant to refurbish or refit the retail premises is
void unless it gives such details of the
refurbishment or refitting as are necessary to
10 indicate generally its nature, extent and timing.
Division 2--Other Interferences with Tenancy
59. Restriction on whom the tenant employs or engages
(1) A provision in a retail premises lease is void to the
extent that it limits or has the effect of limiting the
15 tenant's right to employ or engage persons the
tenant chooses.
(2) However, sub-section (1) does not prevent the
lease from containing provisions that--
(a) specify minimum standards of competence
20 and behaviour for persons employed in the
retail premises or other persons (such as
contractors) doing work there; or
(b) prohibit work from being carried out on
specified items of the landlord's property; or
25 (c) if the retail premises are located in a retail
shopping centre, require the tenant to comply
with any award or agreement (for example, a
construction site agreement) affecting the
centre.
__________________
30
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Act No.
part 7--Assignment and termination of a retail premises lease
s. 60
PART 7--ASSIGNMENT AND TERMINATION OF A RETAIL
PREMISES LEASE
60. When the landlord can withhold consent to an
assignment
5 (1) A landlord is only entitled to withhold consent to
the assignment of a retail premises lease if one or
more of the following applies--
(a) the proposed assignee proposes to use the
retail premises in a way that is not permitted
10 under the lease;
(b) the landlord considers that the proposed
assignee does not have sufficient financial
resources or business experience to meet the
obligations under the lease;
15 (c) the proposed assignor has not complied with
assignment provisions of the lease;
(d) the proposed assignor has not provided the
proposed assignee with business records for
the previous 3 years or such shorter period as
20 the proposed assignor has carried on
business at the retail premises.
(2) This section does not affect any right of the
landlord to require payment of a reasonable sum
in respect of legal or other expenses incurred in
25 connection with the consent, but only if the
landlord has substantiated those expenses to the
tenant at the tenant's request.
(3) Section 144 of the Property Law Act 1958 does
not apply to or with respect to a retail premises
30 lease to which this Act applies.
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61. Procedure for obtaining consent to assignment
(1) A retail premises lease is taken to provide as set
out in this section.
(2) A request for the landlord's consent to an
5 assignment of the lease must be in writing and the
tenant must provide the landlord with such
information as the landlord reasonably requires
about the financial resources and business
experience of the proposed assignee.
10 (3) Before requesting the landlord's consent, the
tenant must give the proposed assignee--
(a) a copy of any disclosure statement given to
the tenant concerning the lease; and
(b) details of any changes of which the tenant is
15 aware, or could reasonably be expected to be
aware, that have affected the information in
the disclosure statement since it was given to
the tenant.
Penalty: 10 penalty units.
20 (4) If the assignment is in connection with the lease of
retail premises that will continue to be an ongoing
business, the tenant must give the landlord and the
proposed assignee a disclosure statement in the
form prescribed by the regulations (but the layout
25 of the statement need not be the same as the
prescribed disclosure statement).
(5) For the purpose of complying with sub-section
(3), the tenant may ask the landlord to give the
tenant a disclosure statement that is current from a
30 specified date that is within 3 months before the
statement is given and, if the landlord does not
give the tenant such a statement within 14 days--
(a) the tenant is not required to comply with that
sub-section; and
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(b) the landlord is guilty of an offence and liable
to a fine not exceeding 10 penalty units.
(6) The landlord must deal expeditiously with a
request for consent and is taken to have consented
5 to the assignment if--
(a) the tenant has complied with this section;
and
(b) the landlord has not, within 28 days after the
request was made, given written notice to the
10 tenant consenting or withholding consent.
62. Protection of assignors and guarantors
(1) This section applies if--
(a) a tenant gives a landlord and proposed
assignee a copy of a disclosure statement in
15 accordance with section 61(4); and
(b) the disclosure statement does not contain any
information that is materially false,
misleading or incomplete.
(2) None of the following persons are liable to pay to
20 the landlord any money in respect of amounts
payable by the proposed assignee--
(a) the tenant;
(b) a guarantor or covenantor of the tenant.
63. Landlord may reserve the right to refuse a sub-lease,
25 mortgage etc.
A retail premises lease may contain a provision
which allows the landlord an absolute discretion
to refuse consent to--
(a) the grant of a sub-lease, licence or
30 concession in respect of all or part of the
retail premises; or
(b) the tenant parting with occupancy rights to
all or part of the retail premises; or
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(c) the tenant mortgaging or otherwise charging
or encumbering the tenant's estate or interest
in the lease.
64. Notice of the landlord's intentions concerning
5 renewal
(1) This section applies if the tenant under a retail
premises lease does not have an option under the
lease, or a right by an agreement entered into
before or when the lease was entered into, to
10 renew the lease for a further term.
(2) The landlord must, at least 6 months but no more
than 12 months before the lease term ends, give
written notice to the tenant--
(a) offering the tenant a renewal of the lease on
15 the terms specified in the notice (including a
term setting out the rent); or
(b) informing the tenant that the landlord does
not propose to offer the tenant a renewal of
the lease.
20 (3) An offer to renew the lease cannot be revoked
without the tenant's consent for 60 days after it is
made.
(4) If the landlord fails to comply with sub-section
(2)--
25 (a) the landlord must give the tenant a notice
containing the same information as the
notice the landlord was required to give
under sub-section (2); and
(b) the lease continues (on the same terms and
30 conditions as applied immediately before the
lease term ends) until--
(i) the day specified in the notice that the
landlord is required to give under
paragraph (a) (which must be at least
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6 months after the notice is given to the
tenant); or
(ii) if the tenant gives the landlord a notice
under sub-section (5), the day specified
5 in that notice.
(5) If the landlord fails to comply with sub-section
(2), the tenant may, at any time before the
landlord gives the tenant a notice under
sub-section (4)(a), give written notice to the
10 landlord terminating the lease from a day that is
not earlier than the day on which the term of the
lease expires.
__________________
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part 8--Additional requirements for retail shopping centres
s. 65
PART 8--ADDITIONAL REQUIREMENTS FOR RETAIL
SHOPPING CENTRES
65. Part only applies to retail shopping centres
This Part only applies to retail premises located in
5 retail shopping centres (and applies in addition to
the other provisions of this Act).
66. Changes to core trading hours
A retail premises lease that provides that the
tenant's business must be open for trading during
10 the core trading hours of the retail shopping centre
is taken to provide that the landlord cannot change
those hours unless a majority of the tenants in the
retail shopping centre who hold a retail premises
lease agree in writing to the landlord doing so.
15 67. Confidentiality of turnover information
(1) A landlord under a retail premises lease must not
divulge or communicate to any person any
information about the turnover of the tenant's
business provided by the tenant in accordance
20 with the lease.
Penalty: 20 penalty units.
(2) However, sub-section (1) does not prevent the
landlord communicating or divulging any
information--
25 (a) with the tenant's consent; or
(b) in a document giving aggregate turnover
information about the retail shopping centre
in which the retail premises are located in a
way that does not disclose information
30 relating to the turnover of a particular
tenant's business; or
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(c) to a court, the Tribunal or the Retail Industry
Commissioner, or for the purposes of any
dispute resolution or valuation, for the
purposes of this Act or the lease; or
5 (d) in compliance with a requirement of or under
an Act; or
(e) in good faith to any of the following persons
in a way that does not disclose information
identifying a particular lease or tenant, or
10 relating to a tenant's business--
(i) the landlord's professional advisers
(such as legal or financial advisers); or
(ii) the proper officer of any financial
institution for the purpose of enabling
15 the landlord to obtain financial
accommodation; or
(iii) a prospective purchaser of the retail
premises or the building in which the
premises are located.
20 68. Availability of statistical information about the retail
shopping centre
If a retail premises lease requires the tenant to pay
an amount in respect of outgoings on account of
expenditure incurred by the landlord in obtaining
25 statistical information about the operation or
performance of the retail shopping centre in which
the premises are located, the lease is taken to
provide that the landlord must, at the request of
the tenant, make the statistical information
30 available to the tenant.
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69. Advertising and promotion requirements
(1) A provision in a retail premises lease is void to the
extent that it requires the tenant to undertake any
advertising or promotion of the tenant's business.
5 (2) However, sub-section (1) does not apply to a
provision that requires a payment to the landlord
for advertising or promotion costs incurred or to
be incurred by the landlord.
70. Marketing plan for advertising and promotion
10 (1) A retail premises lease that requires the tenant to
pay an amount to the landlord for advertising or
promotion costs is taken to provide as set out in
this section.
(2) At least one month before the start of each
15 accounting period of the landlord, the landlord
must make available to the tenant a marketing
plan that gives details of the landlord's proposed
expenditure on advertising and promotion during
that accounting period.
20 (3) If the tenant's payment relates to an opening
promotion, at least one month before that opening
promotion the landlord must make available to the
tenant details of the proposed expenditure on the
promotion.
25 71. Statement and report on advertising and promotion
expenditure
(1) A retail premises lease is taken to provide as set
out in this section.
(2) The landlord must give the tenant a written
30 statement that details all expenditure by the
landlord in each accounting period of the landlord
during the term of the lease on account of
advertising or promotion costs to which the tenant
is required to contribute under the lease.
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(3) The advertising and promotion statement must
be--
(a) given to the tenant at least once for
expenditure during each of the landlord's
5 accounting periods during the term of the
lease; and
(b) given to the tenant within one month after
the end of the accounting period to which it
relates; and
10 (c) accompanied by a report prepared by a
registered company auditor (within the
meaning of the Corporations Act) that
confirms whether the statement correctly
states the landlord's expenditure during the
15 accounting period in respect of advertising or
promotion costs to which the tenant is
required to contribute.
(4) The advertising and promotion statement must be
prepared in accordance with relevant principles
20 and disclosure requirements of applicable
accounting standards (in force from time to time)
made by the Australian Accounting Standards
Board.
72. Unspent advertising and promotion contributions
25 (1) A retail premises lease is taken to provide that an
amount that is--
(a) contributed, under a retail premises lease, by
a tenant in the retail shopping centre in
which the retail premises are located in
30 respect of the landlord's advertising or
promotion costs; and
(b) not spent in respect of those costs--
must be carried forward by the landlord to be
applied towards future expenditure on advertising
35 or promotion of the centre.
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(2) The regulations may prescribe that a tenant under
a retail premises lease is, when the lease ends,
entitled to a refund of some or all of the amount
contributed by the tenant in respect of the
5 landlord's advertising or promotion costs and may
prescribe a method for calculating the amount of
the refund.
73. Termination for inadequate sales prohibited
A provision in a retail premises lease is void to the
10 extent that it permits or otherwise provides for the
termination of the lease on the ground that the
tenant or the tenant's business has failed to
achieve specified sales or turnover performance.
74. Geographical restrictions on tenant prohibited
15 (1) A provision in a retail premises lease is void to the
extent that it has the effect of preventing or
restricting the tenant from carrying on business
outside the retail shopping centre in which the
retail premises are located, either during the term
20 of the lease or after its expiry.
(2) Sub-section (1) does not prevent a lease or other
agreement from containing a provision that
prevents the use of the name of the retail shopping
centre in connection with a business carried on
25 outside the centre.
75. Tenants' associations etc.
(1) A provision in a retail premises lease is void to the
extent that it has the effect of preventing or
restricting the tenant from forming, joining or
30 taking part in any activities of a tenants'
association, chamber of commerce or similar
body.
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(2) A landlord under a retail premises lease must not
treat or propose to treat a tenant who--
(a) forms or joins; or
(b) proposes to form or join--
5 a tenants' association, chamber of commerce or
similar body less favourably than a tenant in
similar circumstances who does not do or propose
to do any of those things.
__________________
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Act No.
part 9--unconscionable conduct
s. 76
PART 9--UNCONSCIONABLE CONDUCT
76. Application of Part
(1) In addition to a retail premises lease to which this
Part applies because of Part 3, this Part also
5 applies to a retail premises lease that was entered
into or renewed before the commencement of this
section if this Act would have applied to the lease
had it been entered into or renewed after that
commencement.
10 (2) This Part does not apply to conduct that occurred
before the commencement of this section.
77. Unconscionable conduct of a landlord
(1) A landlord under a retail premises lease must not,
in connection with the lease, engage in conduct
15 that is, in all the circumstances, unconscionable.
Note: Section 78 deals with unconscionable conduct by a
tenant.
(2) Without limiting the matters to which the
Tribunal may have regard for the purpose of
20 determining whether a landlord has contravened
sub-section (1), the Tribunal may have regard
to--
(a) the relative strengths of the bargaining
positions of the landlord and tenant; and
25 (b) whether, as a result of conduct engaged in by
the landlord, the tenant was required to
comply with conditions that were not
reasonably necessary for the protection of
the landlord's legitimate interests; and
30 (c) whether the tenant was able to understand
any documents relating to the lease; and
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(d) whether any undue influence or pressure was
exerted on, or any unfair tactics were used
against, the tenant or a person acting on the
tenant's behalf by the landlord or a person
5 acting on the landlord's behalf in relation to
the lease, for example--
(i) concerning trading on Sundays or days
that are public holidays where the
premises are located; or
10 (ii) to agree to a lease term of less than
5 years; and
(e) the amount for which, and the circumstances
under which, the tenant could have acquired
an identical or equivalent lease from a person
15 other than the landlord; and
(f) the extent to which the landlord's conduct
towards the tenant was consistent with the
landlord's conduct in similar transactions
between the landlord and other similar
20 tenants; and
(g) the requirements of any applicable industry
code; and
(h) the requirements of any other industry code,
if the tenant acted on the reasonable belief
25 that the landlord would comply with that
code; and
(i) the extent to which the landlord
unreasonably failed to disclose to the
tenant--
30 (i) any intended conduct of the landlord
that might affect the tenant's interests;
and
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(ii) any risks to the tenant arising from the
landlord's intended conduct that are
risks that the landlord should have
foreseen would not be apparent to the
5 tenant; and
(j) the extent to which the landlord was willing
to negotiate the terms and conditions of any
lease with the tenant; and
(k) the extent to which the landlord acted in
10 good faith; and
(l) the extent to which the landlord was not
reasonably willing to negotiate the rent under
the lease; and
(m) the extent to which the landlord
15 unreasonably used information about the
turnover of the tenant's or a previous tenant's
business to negotiate the rent; and
(n) the extent to which the landlord required the
tenant to incur unreasonable fit out costs.
20 (3) In considering whether a landlord has contravened
sub-section (1), the Tribunal--
(a) must not have regard to any circumstances
that were not reasonably foreseeable at the
time of the alleged contravention; and
25 (b) may have regard to circumstances existing
before the commencement of this section but
not to conduct engaged in before that
commencement.
78. Unconscionable conduct of a tenant
30 (1) A tenant under a retail premises lease must not, in
connection with the lease, engage in conduct that
is, in all the circumstances, unconscionable.
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(2) Without in any way limiting the matters to which
the Tribunal may have regard for the purpose of
determining whether a tenant has contravened
sub-section (1), the Tribunal may have regard
5 to--
(a) the relative strengths of the bargaining
positions of the tenant and landlord; and
(b) whether, as a result of conduct engaged in by
the tenant, the landlord was required to
10 comply with conditions that were not
reasonably necessary for the protection of
the tenant's legitimate interests; and
(c) whether the landlord was able to understand
any documents relating to the lease; and
15 (d) whether any undue influence or pressure was
exerted on, or any unfair tactics were used
against, the landlord or a person acting on
the landlord's behalf by the tenant or a
person acting on the tenant's behalf in
20 relation to the lease; and
(e) the amount for which, and the circumstances
under which, the landlord could have granted
an identical or equivalent lease to a person
other than the tenant; and
25 (f) the extent to which the tenant's conduct
towards the landlord was consistent with the
tenant's conduct in similar transactions
between the tenant and other similar
landlords; and
30 (g) the requirements of any applicable industry
code; and
(h) the requirements of any other industry code,
if the landlord acted on the reasonable belief
that the tenant would comply with that code;
35 and
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(i) the extent to which the tenant unreasonably
failed to disclose to the landlord--
(i) any intended conduct of the tenant that
might affect the landlord's interests; and
5 (ii) any risks to the landlord arising from
the tenant's intended conduct that are
risks that the tenant should have
foreseen would not be apparent to the
landlord; and
10 (j) the extent to which the tenant was willing to
negotiate the terms and conditions of any
lease with the landlord; and
(k) the extent to which the tenant acted in good
faith; and
15 (l) the extent to which the tenant was not
reasonably willing to negotiate the rent under
the lease;
(m) the extent to which the tenant unreasonably
used information about the turnover of the
20 tenant's or a previous tenant's business to
negotiate the rent; and
(n) the extent to which the tenant was willing to
incur reasonable fit out costs.
(3) In considering whether a tenant has contravened
25 sub-section (1), the Tribunal--
(a) must not have regard to any circumstances
that were not reasonably foreseeable at the
time of the alleged contravention; and
(b) may have regard to circumstances existing
30 before the commencement of this section but
not to conduct engaged in before that
commencement.
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79. Certain conduct is not unconscionable
A person is not to be taken for the purposes of
section 77 or 78 to engage in unconscionable
conduct in connection with a retail premises lease
5 merely because--
(a) the person institutes proceedings in relation
to the lease or refers a dispute, application or
claim relating to the lease to arbitration,
conciliation, mediation or some other form
10 of alternative dispute resolution; or
(b) the person fails to renew the lease or enter
into a new lease; or
(c) the person does not agree to having an
independent valuation of current market rent
15 carried out.
80. Recovery of amount for loss or damage
(1) A landlord or tenant, or former landlord or tenant,
who suffers loss or damage because of
unconscionable conduct of another person that
20 contravenes section 77 or 78 may recover the
amount of the loss or damage by lodging a claim
with the Tribunal against the other person.
(2) The claim must be lodged within 6 years after the
alleged unconscionable conduct occurred.
25 (3) If the matter of the loss or damage arises in
connection with proceedings in the Tribunal, the
Tribunal may proceed to decide the matter and
award a sum that it considers appropriate.
__________________
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part 10--dispute resolution
s. 81
PART 10--DISPUTE RESOLUTION
Division 1--Retail Tenancy Disputes
81. Meaning of "retail tenancy dispute"
(1) In this Part, "retail tenancy dispute" means a
5 dispute between a landlord and tenant--
(a) arising under or in relation to a retail
premises lease to which--
(i) this Act applies or applied because of
Part 3; or
10 (ii) the Retail Tenancies Reform Act
1998 or the Retail Tenancies Act 1986
applies or applied; or
(b) arising under a provision of the Retail
Tenancies Reform Act 1998 or the Retail
15 Tenancies Act 1986 in relation to a lease to
which that Act applies or applied; or
(c) arising under a lease that provides for the
occupation of retail premises in Victoria to
which none of those Acts apply or applied--
20 despite anything to the contrary in this Act (apart
from sub-section (2) and section 119(2)).
Note: If proceedings were in progress under the Retail
Tenancies Reform Act 1998 when this Act
commenced, see section 119(2) (general transitional
25 and savings).
(2) However, "retail tenancy dispute" does not
include a dispute solely relating to the payment of
rent or a dispute that is capable of being
determined by a specialist retail valuer under
30 section 34 or 36.
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(3) In this Part, a lease of retail premises includes a
lease of premises that are retail premises at any
time during the lease but before a referral under
section 86 is made in relation to that lease
5 (whether or not the premises are retail premises
when that referral is made).
82. Part applies to current and former leases
In this Part--
"landlord" includes a former landlord;
10 "lease" includes a former lease;
"tenant" includes a former tenant.
Division 2--The Retail Industry Commissioner
83. Retail Industry Commissioner
(1) The Minister must appoint a Retail Industry
15 Commissioner.
(2) The person appointed must be--
(a) the holder of a statutory office within the
meaning of the Public Sector Management
and Employment Act 1998; or
20 (b) a person employed under Part 3 of that Act.
(3) As many persons may be employed under Part 3
of the Public Sector Management and
Employment Act 1998 as are necessary for the
purposes of this Act.
25 (4) The Commissioner may, by instrument, delegate
any of his or her functions under this Act (other
than this power of delegation) to a person
employed under Part 3 of the Public Sector
Management and Employment Act 1998.
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84. Functions of Retail Industry Commissioner
(1) The Retail Industry Commissioner has the
following functions--
(a) to make arrangements to facilitate the
5 resolution by mediation, or by another
appropriate form of alternative dispute
resolution, of retail tenancy disputes
(whether or not a dispute has been formally
referred under this Act to the
10 Commissioner);
(b) to take proceedings for an offence against
this Act;
(c) to report to the Minister on the operation of
this Act;
15 (d) to authorise, if the Commissioner considers
it appropriate to do so, a body to represent
that the form of a standard lease that the
body is to make available to the public
(whether or not for a fee) is endorsed by the
20 Commissioner;
(e) to confirm whether a certificate has been
given in accordance with section 21(5);
(f) to prepare and publish an information
booklet or guidelines about retail leases that
25 may be purchased on demand by members of
the public;
(g) for the purposes only of the Commissioner
performing his or her functions under this
Act, to create and maintain a register of the
30 information provided under section 25;
(h) such other functions as may be conferred or
imposed on the Commissioner by or under
this or any other Act.
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(2) The Commissioner may intervene in proceedings
brought before the Tribunal concerning a retail
tenancy dispute at any stage of the proceedings.
(3) If the Commissioner intervenes in proceedings, he
5 or she becomes a party to the proceedings and has
all the rights (including rights of appeal) of such a
party.
(4) In arranging for the resolution of retail tenancy
disputes, the Commissioner is to have regard to
10 the need for the mediation or other form of
alternative dispute resolution to be conducted by
persons who are experienced in the field of retail
premises leases.
(5) The Commissioner may charge a fee for giving an
15 authorisation under sub-section (1)(d), which must
not be more than the maximum fee (if any)
prescribed by the regulations.
(6) The Commissioner is not subject to the Minister's
control or direction in exercising functions under
20 sub-section (1)(a) or (b).
Division 3--Alternative Dispute Resolution
85. What mediation and other alternative dispute
resolution covers
Mediation and other forms of alternative dispute
25 resolution under this Part are not limited to formal
mediation procedures but extend to preliminary
assistance in dispute resolution, such as the giving
of advice designed to ensure that--
(a) the parties are fully aware of their rights and
30 obligations; and
(b) there is full and open communication
between the parties concerning the matter.
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Retail Leases Act 2002
Act No.
part 10--dispute resolution
s. 86
86. Referral of retail tenancy disputes for alternative
dispute resolution
(1) Any or all of the parties to a retail premises lease
may refer a retail tenancy dispute to the Retail
5 Industry Commissioner for mediation.
(2) The referral must be accompanied by the
application fee, which must not be more than the
maximum fee (if any) prescribed by the
regulations.
10 Note: The parties may ask the Commissioner for
preliminary assistance before referring the retail
tenancy dispute (see section 85).
(3) The Commissioner must arrange for each retail
tenancy dispute referred in accordance with this
15 section to be the subject of--
(a) mediation by a mediator; or
(b) another appropriate form of alternative
dispute resolution by a suitably qualified
person.
20 (4) A mediator or person conducting another form of
alternative dispute resolution may, if he or she
considers it appropriate to do so, prevent a party
from being represented at the whole or any part of
the mediation or other form of alternative dispute
25 resolution by a person who is or has been a legal
practitioner.
(5) The costs of, and associated with, mediation by a
mediator, or another form of alternative dispute
resolution by a suitably qualified person, are to be
30 paid by the parties to the mediation or other form
of alternative dispute resolution in the proportions
that they agree among themselves or, if they
cannot agree, in equal shares.
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(6) A mediator or person conducting another form of
alternative dispute resolution is not civilly or
criminally liable in respect of the performance, in
good faith, of the functions of a mediator or such a
5 person under this Act.
87. Retail tenancy disputes must first be referred for
alternative dispute resolution
(1) A retail tenancy dispute may only be the subject
of proceedings before the Tribunal (whether under
10 this Act, the Fair Trading Act 1999 or any other
Act) if the Retail Industry Commissioner has
certified in writing that mediation or another
appropriate form of alternative dispute resolution
under this Part has failed, or is unlikely, to resolve
15 it.
(2) This section does not apply to proceedings for an
order in the nature of an injunction.
(3) This section does not affect the validity of any
decision made by the Tribunal.
20 88. Statements made during alternative dispute resolution
not admissible
A statement or admission made in the course of a
mediation or another form of alternative dispute
resolution under this Part is not admissible in
25 proceedings under Division 4 or in any other legal
proceedings.
Division 4--The Tribunal
89. Jurisdiction of Tribunal
(1) The Tribunal has jurisdiction to hear and
30 determine an application by a landlord or tenant
under a retail premises lease, or by a specialist
retail valuer, seeking resolution of a retail tenancy
dispute.
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(2) In an application under sub-section (1) for
forfeiture or relief against forfeiture (whether or
not for non-payment of rent), the Tribunal has the
same jurisdiction, including equitable jurisdiction,
5 and powers as the Supreme Court has in relation
to proceedings for forfeiture or relief against
forfeiture.
(3) The Tribunal's powers under sub-section (2) are
subject to section 92 (which provides that each
10 party to the application is to bear its own costs).
(4) Subject to section 23(4) (key-money and goodwill
payments prohibited), a retail tenancy dispute
other than--
(a) an application for relief against forfeiture; or
15 (b) a claim under Part 9 (unconscionable
conduct)--
is not justiciable before any other tribunal or a
court or person acting judicially within the
meaning of the Evidence Act 1958.
20 (5) The Tribunal also has jurisdiction to hear and
determine any other application that under this
Act, the Retail Tenancies Reform Act 1998 or
the Retail Tenancies Act 1986 may be made to
the Tribunal.
25 90. Parties to proceeding
The parties to a proceeding before the Tribunal on
an application under section 89(1) are--
(a) the applicant; and
(b) the other party to the dispute; and
30 (c) any person the Tribunal considers it
appropriate to join as a party to the
proceeding.
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part 10--dispute resolution
s. 91
91. Orders the Tribunal can make
(1) The Tribunal may, in a proceeding under this Part,
make one or more orders--
(a) requiring a party to do, or not to do, anything
5 including to provide specified facilities,
services, fixtures or fittings under a retail
premises lease or to return specified fixtures
or fittings to another party; or
(b) requiring a party to pay money, by way of
10 restitution or compensation or otherwise, to a
specified person; or
(c) rectifying a retail premises lease or other
document; or
(d) granting recovery of possession of the retail
15 premises to the landlord; or
(e) requiring anything else to be done that it--
(i) is empowered to require to be done
under this Act or the Victorian Civil
and Administrative Tribunal Act
20 1998; or
(ii) considers necessary or desirable to
resolve the matter concerned.
(2) In ordering the payment of a sum of money by a
party, the Tribunal may order the payment of
25 interest on that sum by the party at the rate fixed
from time to time under section 2 of the Penalty
Interests Rates Act 1983 or at any lesser rate it
thinks appropriate.
92. Each party bears its own costs
30 (1) Despite anything to the contrary in Division 8 of
Part 4 of the Victorian Civil and Administrative
Tribunal Act 1998, each party to a proceeding
before the Tribunal under this Part is to bear its
own costs in the proceeding.
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(2) However, at any time the Tribunal may make an
order that a party pay all or a specified part of the
costs of another party in the proceeding but only if
the Tribunal is satisfied that it is fair to do so
5 because--
(a) the party conducted the proceeding in a
vexatious way that unnecessarily
disadvantaged the other party to the
proceeding; or
10 (b) the party refused to take part in or withdrew
from mediation or other form of alternative
dispute resolution under this Part.
(3) In this section, "costs" includes fees, charges and
disbursements.
__________________
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part 11--other matters
s. 93
PART 11--OTHER MATTERS
93. Indemnities
(1) A provision in a retail premises lease is void to the
extent that it purports to indemnify, or require the
5 tenant to indemnify, the landlord against any
action, liability, penalty, claim or demand for or to
which the landlord would otherwise be liable or
subject.
(2) A provision in a retail premises lease is void to the
10 extent that it purports to make the tenant liable for
or subject to any action, liability, penalty, claim or
demand in respect of any act, matter or thing done
or omitted to be done by the landlord or any other
person if the tenant would not otherwise be liable
15 for or subject to that action, liability, penalty,
claim or demand.
(3) The landlord must indemnify the tenant for any
amount recoverable from the tenant by a public
statutory authority for charges, rates or taxes
20 payable under any Act for the retail premises.
(4) Sub-section (3) does not apply to--
(a) charges for the supply of water by measure
in excess of the minimum amount payable
for it relating to a period during which the
25 tenant occupied the retail premises; or
(b) charges, rates or taxes for which, under the
terms of the retail premises lease, the tenant
is liable.
94. The Act prevails over retail premises leases,
30 agreements etc.
(1) A provision of a retail premises lease or of an
agreement (whether or not the agreement is
between parties to a retail premises lease) is void
to the extent that it is contrary to or inconsistent
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with anything in this Act (including anything that
the lease is taken to include or provide because of
a provision of this Act).
(2) A provision of a retail premises lease or of an
5 agreement (whether or not the agreement is
between parties to a retail premises lease) is void
to the extent that it purports--
(a) to exclude the application of a provision of
this Act; or
10 (b) to limit the right of a party to the lease to
seek resolution of a retail tenancy dispute
under Part 10 or otherwise to limit the
application of that Part.
(3) A provision contained in any other agreement or
15 arrangement (whether or not between parties to a
retail premises lease) is void if that provision
would be void under this Act if it were contained
in a retail premises lease.
95. Occupation of residential area under a retail premises
20 lease
If--
(a) a retail premises lease confers a right on the
tenant to occupy a residential area in the
building in which the retail premises are
25 located; and
(b) the Residential Tenancies Act 1997 does
not apply to the lease to the extent that it
provides for the occupation of the residential
area--
30 the retail premises lease is taken to provide that
the landlord must ensure that the residential area
is maintained in good repair.
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part 11--other matters
s. 96
96. Franchise arrangements
(1) This section applies if a tenant proposes to grant a
licence to a person to use all or part of the retail
premises wholly or predominantly for the carrying
5 on of a business under a name or mark
identifying, commonly associated with or
controlled by the tenant or a person or corporation
(as defined in section 57A of the Corporations
Act) connected with the tenant.
10 (2) The tenant must give the proposed licensee,
within 7 days before the grant of the licence--
(a) a copy of any disclosure statement given to
the tenant concerning the lease; and
(b) details of any changes of which the tenant is
15 aware, or could reasonably be expected to be
aware, that have affected the information in
the disclosure statement since it was given to
the tenant.
Penalty: 10 penalty units.
20 97. Service of documents
A document under this Act may be served on, or
given to, a person in or out of Victoria--
(a) by delivering it personally to the person; or
(b) by leaving it at the person's usual or last
25 known place of residence or business with
someone who is apparently--
(i) over the age of 16 years; and
(ii) residing at that place or, in the case of a
place of business, in charge of or
30 employed at that place; or
(c) by sending it by post addressed to the person
at the person's usual or last known place of
residence or business; or
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(d) in any other way authorised by the retail
premises lease concerned or by or under any
other Act.
98. Limitation of Supreme Court jurisdiction
5 It is the intention of section 89(4) to alter or vary
section 85 of the Constitution Act 1975.
99. Regulations
(1) The Governor in Council may make regulations
for or with respect to--
10 (a) the form of the disclosure statements referred
to in sections 17, 20 and 61, in particular the
information that the disclosure statement
must contain and any material that must
accompany it; and
15 (b) establishing codes of conduct with which
landlords or tenants under retail premises
leases must comply (including concerning
casual leasing arrangements in retail
shopping centres); and
20 (c) matters of a transitional nature (including
matters of an application or savings nature)
arising as a result of the enactment of this
Act (including the repeals and amendments
made by this Act); and
25 (d) any other matter or thing required or
permitted by this Act to be prescribed or
necessary to be prescribed to give effect to
this Act.
(2) A code of conduct may apply, adopt or
30 incorporate, wholly or partially or as amended in
the code of conduct, the provisions of any
document issued or published by any body
whether--
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(a) as issued or published before or when the
code of conduct is made; or
(b) as amended from time to time.
(3) A power conferred by this Act to make
5 regulations may be exercised--
(a) either in relation to all cases to which the
power extends, or in relation to all those
cases subject to specified exceptions, or in
relation to any specified case or class of
10 case; and
(b) so as to make, as respects the cases in
relation to which the power is exercised--
(i) the same provision for all cases in
relation to which the power is
15 exercised, or different provisions for
different cases or classes of case, or
different provisions for the same case
or class of case for different purposes;
or
20 (ii) any such provision either
unconditionally or subject to any
specified condition.
__________________
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PART 12--AMENDMENT OF RETAIL TENANCIES REFORM ACT
s. 100
1998
PART 12--AMENDMENT OF RETAIL TENANCIES REFORM
ACT 1998
100. Definitions
(1) In section 3(1) of the Retail Tenancies Reform See:
Act No.
5 Act 1998, insert the following definitions-- 14/1998.
Reprint No. 1
' "outgoings" has the same meaning as in the as at
1 July 1998
Retail Leases Act 2002;
and
amending
"prospective tenant", in relation to a lease Act Nos
entered into under an option provided under 52/1998,
85/1998,
10 a retail premises lease to which the Retail 73/2000,
Tenancies Act 1986 applied (a 1986 lease), 27/2001,
44/2001 and
includes a tenant under the 1986 lease; 63/2001.
LawToday:
"Retail Industry Commissioner" has the same www.dms.
meaning as in the Retail Leases Act 2002; dpc.vic.
gov.au
15 "specialist retail valuer" has the same meaning
as in the Retail Leases Act 2002;'.
(2) In section 3 of the Retail Tenancies Reform Act
1998, at the end of the section insert--
'(8) The definition of "prospective tenant"
20 inserted in sub-section (1) by section 100(1)
of the Retail Leases Act 2002 only has
effect from 1 November 2003.'.
101. Application
In section 4 of the Retail Tenancies Reform Act
25 1998, after sub-section (2) insert--
"(3) For the purposes of this Act, on and after
1 November 2003 an assignment of a retail
premises lease is taken to be a continuation
of that lease (and not the entering into of a
30 new lease).
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(4) If in this Act (as amended by Part 12 of the
Retail Leases Act 2002) it is provided that a
provision, or an amendment made to a
provision, only has effect from 1 November
5 2003, the intention of the Parliament is--
(a) that the provision, or the provision as
amended, takes effect from the
beginning of that date for the purposes
of the continued application of this Act
10 as provided by section 119 of that Act
and for no other purpose; and
(b) any provision of this Act amended or
repealed by Part 12 of the Retail
Leases Act 2002 continues (as in force
15 immediately before 1 May 2003) to
have effect until 1 November 2003 for
the purposes of the continued
application of this Act as provided by
section 119 of that Act.".
20 102. Rent review
In section 12 of the Retail Tenancies Reform
Act 1998, for sub-sections (5), (6), (7) and (8)
substitute--
"(6) If a provision in a retail premises lease that
25 provides for a review of the rent payable
under the lease or a renewal of the lease does
not comply with sub-section (2), the rent is
to be--
(a) as agreed between the landlord and
30 tenant; or
(b) if there is no agreement within 30 days
after the landlord gives the tenant, or
the tenant gives the landlord, a written
notice specifying an amount of rent for
35 the purposes of the review, the amount
determined by a specialist retail valuer
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appointed by the Retail Industry
Commissioner as the current market
rent of the retail premises (as described
in section 12A(2)).
5 (7) The landlord and tenant are to pay the costs
of a valuation referred to in sub-section
(6)(b) in equal shares.
(8) The amendments made to this section by
section 102 of the Retail Leases Act 2002
10 only have effect from 1 November 2003.".
103. New sections 12A to 13A substituted
In the Retail Tenancies Reform Act 1998, for
section 13 substitute--
'12A. Rent reviews based on current market rent
15 (1) A retail premises lease that provides for a
rent review to be made on the basis of the
current market rent of the premises is taken
to provide as set out in sub-sections (2)
to (6).
20 (2) The current market rent is taken to be the
rent obtainable at the time of the review in a
free and open market between a willing
landlord and willing tenant in an arm's length
transaction having regard to these matters--
25 (a) the provisions of the lease;
(b) the rent that would reasonably be
expected to be paid for the premises if
they were unoccupied and offered for
lease for the same, or a substantially
30 similar, use to which the premises may
be put under the lease;
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(c) the landlord's outgoings to the extent to
which the tenant is liable to contribute
to those outgoings;
(d) rent concessions and other benefits
5 offered to prospective tenants of
unoccupied retail premises--
but the current market rent is not to take into
account the value of goodwill created by the
tenant's occupation or the value of the
10 tenant's fixtures and fittings.
(3) If the landlord and tenant do not agree on
what the amount of that rent is to be, it is to
be determined by a valuation carried out by a
specialist retail valuer appointed by--
15 (a) agreement between the landlord and
tenant; or
(b) if there is no agreement, the Retail
Industry Commissioner--
and the landlord and tenant are to pay the
20 costs of the valuation in equal shares.
(4) The landlord must, within 14 days after a
request by the specialist retail valuer, supply
the valuer with relevant information about
leases for retail premises located in the same
25 building or retail shopping centre to assist
the valuer to determine the current market
rent.
Penalty: 50 penalty units.
(5) In determining the amount of the rent, the
30 specialist retail valuer must take into account
the matters set out in sub-section (2).
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(6) The valuation must--
(a) be in writing; and
(b) contain detailed reasons for the
specialist retail valuer's determination;
5 and
(c) specify the matters to which the valuer
had regard in making the determination.
(7) The specialist retail valuer--
(a) must carry out the valuation within
10 45 days after accepting the
appointment; and
(b) may apply to the Tribunal under Part 10
of the Retail Leases Act 2002 for an
order that a landlord comply with a
15 request under sub-section (4).
(8) This section only has effect from
1 November 2003.
12B. Confidentiality of information supplied to
valuer
20 (1) A specialist retail valuer who is supplied
with information by a landlord or tenant for
the purpose of determining under
section 12A the current market rent for a
retail premises lease must not--
25 (a) use or permit the use of the information
for any purpose other than to determine
the current market rent for the lease
concerned; or
(b) communicate or divulge that
30 information to any other person or
permit that information to be
communicated or divulged to any other
person.
Penalty: 50 penalty units.
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(2) However, sub-section (1) does not prevent
the specialist retail valuer--
(a) communicating or divulging the
information to a court, the Tribunal or
5 the Retail Industry Commissioner, or
permitting another person to do so; or
(b) using, communicating or divulging the
information or permitting another
person to do so--
10 (i) in accordance with the consent of
both the landlord and tenant; or
(ii) in a way that does not disclose
information identifying a
particular lease or tenant, or
15 relating to a tenant's business, for
the purpose of specifying the
matters to which the valuer had
regard in making the
determination concerned.
20 (3) A specialist retail valuer who contravenes
this section is liable to pay to the landlord or
tenant concerned compensation for any loss
or damage suffered by the landlord or tenant
as a result of the information being used,
25 communicated or divulged.
(4) The amount of the compensation is the
amount that is--
(a) agreed between the valuer and the
person seeking compensation; or
30 (b) if there is no agreement, determined
under Part 10 of the Retail Leases Act
2002.
(5) This section only has effect from
1 November 2003.
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1998
13. Rent based on turnover
(1) A provision in a retail premises lease that the
rent is to be determined either fully or partly
by reference to the turnover of the business
5 is void unless the lease specifies how the rent
is to be determined.
Note: If the provision is void, see section 13A.
(2) If a retail premises lease specifies how the
rent is to be determined fully or partly by
10 reference to the turnover of the business, the
tenant must give the landlord--
(a) within 14 days after the end of each
month for which the rent is to be
determined in that way or such longer
15 period as the lease provides, a
statement in writing giving the turnover
during that month or other period to
which the statement relates; and
(b) within 28 days after the end of each
20 year for which the rent is to be
determined in that way or such longer
period as the lease provides and at the
end of the lease or on an assignment of
the lease--
25 (i) a statement of the turnover; and
(ii) an audit report from an
independent accountant stating
that in his or her opinion the
statement fairly presents the
30 turnover of the business during
that year or other period to which
the statement relates.
(3) A tenant who gives the landlord statements
for a period in accordance with sub-section
35 (2) satisfies any obligation under the lease to
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provide turnover figures or statements for
that period.
(4) For the purposes of sub-sections (2) and (3)
and any provision of a retail premises lease
5 about the determination of rent by reference
to turnover, "turnover" does not include
any of the following--
(a) the net amount of discounts reasonably
and properly allowed to any customer
10 in the usual course of business;
(b) the amount of losses incurred in the
resale or disposal of goods reasonably
and properly purchased from customers
as trade-ins in the usual course of
15 business;
(c) the amount of uncollected credit
accounts written off by the tenant
(except to the extent that amounts of a
credit account previously written off by
20 the tenant are recovered);
(d) the amount of any cash or credit refund
allowed on a transaction the proceeds
of which have previously been included
as turnover, if the merchandise is
25 returned and the sale is cancelled or
some or all of the fees for the services
are refunded;
(e) the amount of any instalment of
purchase money refunded to customers
30 where a lay-by transaction is cancelled;
(f) the amount of any purchase, receipt or
other similar tax (including GST)
imposed on the purchase price or cost
of hire of merchandise or services at the
35 point of sale or hire;
(g) the amount of delivery charges;
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(h) the price of merchandise exchanged
between stores of the tenant made
solely for the convenient operation of
business and not for the purpose of
5 concluding a sale made at or from the
retail premises to which the lease
relates;
(i) the price of merchandise returned to
shippers, wholesalers or manufacturers;
10 (j) the amount received from the sale of
the fixtures and fittings of the tenant
from the premises;
(k) money received for entries in any
public lottery within the meaning of the
15 Public Lotteries Act 2000, other than
amounts derived as commission or fees
on those entries;
(l) any other matter which the landlord and
the tenant agree is not included as
20 turnover.
(5) This section only has effect from
1 November 2003.
13A. Agreement about rent based on turnover
(1) If--
25 (a) a provision of a retail premises lease
that the rent is to be determined either
fully or partly by reference to the
turnover of the business is void because
of section 13; and
30 (b) the lease makes no other provision for
determining the rent--
the rent is to be as agreed in writing between
the landlord and tenant.
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(2) If the landlord and tenant do not agree on an
amount of rent within 30 days of the landlord
giving the tenant a written notice specifying
an amount, the amount of the rent is to be
5 determined by a valuation carried out by a
specialist retail valuer appointed by--
(a) agreement between the landlord and
tenant; or
(b) if there is no agreement, the Retail
10 Industry Commissioner--
and the landlord and tenant are to pay the
costs of the valuation in equal shares.
(3) This section only has effect from
1 November 2003.'.
15 104. New section 16 substituted
In the Retail Tenancies Reform Act 1998, for
section 16 substitute--
"16. Notice of the landlord's intentions
concerning renewal
20 (1) This section applies if the tenant under a
retail premises lease does not have an option
under the lease to renew the lease for a
further term.
(2) The landlord must, at least 6 months but no
25 more than 12 months before the lease term
ends, give written notice to the tenant--
(a) offering the tenant a renewal of the
lease on the terms specified in the
notice (including a term setting out the
30 rent); or
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(b) informing the tenant that the landlord
does not propose to offer the tenant a
renewal of the lease.
(3) An offer to renew the lease cannot be
5 revoked without the tenant's consent for
60 days after it is made.
(4) If the landlord fails to comply with sub-
section (2)--
(a) the landlord must give the tenant a
10 notice containing the same information
as the notice the landlord was required
to give under sub-section (2); and
(b) the lease continues (on the same terms
and conditions as applied immediately
15 before the lease term ends) until--
(i) the day specified in the notice that
the landlord is required to give
under paragraph (a) (which must
be at least 6 months after the
20 notice is given to the tenant); or
(ii) if the tenant gives the landlord a
notice under sub-section (5), the
day specified in that notice.
(5) If the landlord fails to comply with sub-
25 section (2), the tenant may, at any time
before the landlord gives the tenant a notice
under sub-section (4)(a), give written notice
to the landlord terminating the lease from a
day that is not earlier than the day on which
30 the term of the lease expires.
(6) This section only has effect from
1 November 2003.".
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105. Options to renew
In section 18 of the Retail Tenancies Reform
Act 1998, for sub-sections (3), (4), (5), (6) and (7)
substitute--
5 "(3) If a retail premises lease contains an option
exercisable by the tenant to renew the lease
for a further term, the landlord must notify
the tenant in writing of the date after which
the option is no longer exercisable--
10 (a) at least 6 months; and
(b) no more than 12 months--
before that date but is not required to do so if
the tenant exercises, or purports to exercise,
the option before being notified of the date.
15 (4) If sub-section (3) requires the landlord to
notify the tenant but the landlord fails to do
so within the time specified by that sub-
section--
(a) the retail premises lease is taken to
20 provide that the date after which the
option is no longer exercisable is
instead 6 months after the landlord
notifies the tenant as required; and
(b) if that date is after the term of the lease
25 ends, the lease continues until that date
(on the same terms and conditions as
applied immediately before the lease
term ends); and
(c) at any time before the landlord notifies
30 the tenant as required, the tenant may
give written notice to the landlord
terminating the lease from a specified
day that is--
(i) on or after the date on which the
35 term of the lease ends; and
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(ii) before the date until which the
lease would otherwise have
continued because of
paragraph (b).
5 (5) If the tenant gives the landlord a notice of
termination under sub-section (4)(c), the
lease terminates on the day specified in the
notice.
(6) If an option to renew is exercised because of
10 sub-section (4)(b) after the term of the lease
ends, the lease for the further term
commences on the expiry of the previous
lease, disregarding for this purpose any
period during which that lease continued
15 because of that sub-section.
(7) The amendments made to this section by
section 105 of the Retail Leases Act 2002
only have effect from 1 November 2003.".
106. New sections 20 to 21A substituted
20 In the Retail Tenancies Reform Act 1998, for
sections 20 and 21 substitute--
"20. Liability to contribute to non-specific
outgoings
(1) A tenant under a lease of retail premises
25 located in a retail shopping centre is only
liable to contribute towards an outgoing of
the landlord that does not benefit any
specific retail premises in the centre if the
retail premises are one of the premises that
30 benefit from the outgoing.
(2) A tenant under a lease of retail premises
located in a retail shopping centre is not
liable to contribute towards an outgoing of
the landlord in accordance with sub-section
35 (1) in excess of an amount calculated as
prescribed by the regulations.
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(3) This section only has effect from
1 November 2003.
20A. Estimate of outgoings
(1) A retail premises lease is taken to provide as
5 set out in this section.
(2) The landlord must give the tenant a written
estimate of the outgoings to which the tenant
is liable to contribute under the lease that
itemises those outgoings.
10 (3) The tenant must be given the estimate of
outgoings--
(a) before the lease is entered into; and
(b) in respect of each of the landlord's
accounting periods during the term of
15 the lease, at least one month before the
start of that period.
(4) The tenant is not liable to contribute to any
outgoings of which an estimate is required to
be given to the tenant as set out in this
20 section until the tenant is given that estimate.
(5) This section only has effect from
1 November 2003.
21. Statement of outgoings
(1) A retail premises lease is taken to provide as
25 set out in this section.
(2) The landlord must give the tenant a written
statement that details all expenditure by the
landlord, in each of the landlord's accounting
periods during the term of the lease, on
30 account of outgoings to which the tenant is
liable to contribute.
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(3) The landlord must do so--
(a) at least once in relation to expenditure
during each of the landlord's accounting
periods during the term of the lease;
5 and
(b) within one month after the end of the
accounting period to which it relates.
(4) The outgoings statement may relate to more
than one tenant as long as each tenant to
10 which it relates can ascertain from the
statement the details relevant to the tenant.
(5) The outgoings statement must be--
(a) prepared in accordance with relevant
principles and disclosure requirements
15 of applicable accounting standards (in
force from time to time) made by the
Australian Accounting Standards
Board; and
(b) in the case of a statement given under
20 sub-section (3)(b), accompanied by a
report prepared by a registered
company auditor (within the meaning
of the Corporations Act) that states
whether--
25 (i) the statement correctly states the
landlord's expenditure during the
accounting period in respect of
outgoings to which the tenant is
liable to contribute; and
30 (ii) the total amount of estimated
outgoings for that period (as
shown in the estimate of
outgoings given to the tenant)
exceeded the total actual
35 expenditure by the landlord in
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respect of those outgoings during
that period.
(6) However, the outgoings statement given
under sub-section (3)(b) need not be
5 accompanied by an auditor's report if it--
(a) does not relate to any outgoings other
than--
(i) GST; and
(ii) land tax and water, sewerage and
10 drainage rates and charges; and
(iii) municipal council rates and
charges; and
(iv) insurance; and
(v) any other outgoing of a kind
15 prescribed by the regulations
made for the purposes of section
47(6)(a)(v) of the Retail Leases
Act 2002; and
(b) is accompanied by copies of
20 assessments, invoices, receipts or other
proof of payment for all expenditure by
the landlord included in the statement.
(7) If requested by the tenant, the landlord must
make available for inspection by the tenant,
25 or by a representative of the tenant, copies of
all accounting documents on which the
outgoings statement is based.
(8) This section only has effect from
1 November 2003.
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21A. Adjustment of contributions to outgoings
(1) A retail premises lease is taken to provide as
set out in this section.
(2) There is to be an adjustment between the
5 landlord and tenant for each of the landlord's
accounting periods during the term of the
lease to take account of any underpayment or
overpayment by the tenant in respect of
outgoings during that period.
10 (3) The adjustment is to take place--
(a) within one month after the landlord
gives the tenant the outgoings statement
under section 21 for the period; or
(b) within 4 months after the end of the
15 period--
whichever is earlier.
(4) The adjustment is to be calculated on the
basis of the difference between--
(a) the total amount of outgoings in respect
20 of which the tenant contributed (that is,
the estimated total expenditure by the
landlord on outgoings during the
period); and
(b) the total actual expenditure by the
25 landlord in respect of those outgoings
during the period, but taking into
account only expenditure properly and
reasonably incurred by the landlord in
the payment of those outgoings.
30 (5) This section only has effect from
1 November 2003.".
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107. New sections 24 and 25 substituted
In the Retail Tenancies Reform Act 1998, for
sections 24 and 25 substitute--
"24. Landlord to give notice of alterations and
5 refurbishments
(1) A retail premises lease is taken to provide
that the landlord must not start to carry out
any alteration or refurbishment of the
building or retail shopping centre in which
10 the retail premises are located which is likely
to affect adversely the business of the tenant
unless--
(a) the landlord has notified the tenant in
writing of the proposed alteration or
15 refurbishment at least 60 days before it
is started; or
(b) the alteration or refurbishment is
necessary because of an emergency and
the landlord has given the tenant the
20 maximum period of notice that is
reasonably practicable in the
circumstances.
(2) This section only has effect from
1 November 2003.
25 25. Landlord's liability for repairs
(1) A retail premises lease is taken to provide as
set out in this section.
(2) The landlord is responsible for maintaining
in good repair--
30 (a) the structure of, or fixtures in, the retail
premises; or
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(b) plant or equipment at the retail
premises; or
(c) the appliances, fittings or fixtures
provided under the lease by the
5 landlord relating to the gas, electricity,
water, drainage or other services--
not being fixtures, plant, equipment,
appliances or fittings that the tenant is
entitled to remove at the end of the lease.
10 (3) The tenant may arrange for urgent repairs to
be carried out to those things if--
(a) the repairs are necessary to fix or
remedy a fault or damage that has or
causes a substantial effect on or to the
15 tenant's business at the premises; and
(b) the tenant is unable to get the landlord
or the landlord's agent to carry out the
repairs despite having taken reasonable
steps to arrange for the landlord or
20 agent to do so.
(4) If the tenant carries out those repairs--
(a) the tenant must give the landlord
written notice of the repairs and the
cost within 14 days after the repairs are
25 carried out; and
(b) the landlord is liable to reimburse the
tenant for the reasonable cost of the
repairs.
(5) This section only has effect from
30 1 November 2003.".
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108. New section 30 substituted
In the Retail Tenancies Reform Act 1998, for
section 30 substitute--
"30. Relocation of the tenant's business
5 (1) A retail premises lease that provides for--
(a) relocation of the tenant's business; or
(b) termination of the lease and offer of a
new lease of alternative retail
premises--
10 is taken to provide as set out in this section.
(2) The landlord cannot require the tenant's
business to be relocated unless the landlord
has provided the tenant with details of a
proposed refurbishment, redevelopment or
15 extension that are sufficient to indicate a
genuine proposal that--
(a) is to be carried out within a reasonably
practicable time after the relocation;
and
20 (b) cannot be carried out practicably
without vacant possession of the retail
premises.
(3) The landlord cannot require the tenant's
business to be relocated unless the landlord
25 has given the tenant at least 3 months'
written notice of the relocation with details
of alternative comparable retail premises to
be made available to the tenant.
(4) The tenant is entitled to be offered a new
30 lease of the alternative retail premises on the
same terms and conditions as the existing
lease except that--
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(a) the term of the new lease is to be the
same as the remaining term of the
existing lease; and
(b) the rent for the alternative retail
5 premises is to be the same as the rent
for the existing retail premises, adjusted
to take into account the difference in
the commercial values of the premises
at the time of relocation.
10 (5) The tenant is entitled to payment by the
landlord of the tenant's reasonable costs of
the relocation, including (but not limited to)
the costs of dismantling and reinstalling or
modifying or replacing any fixtures and
15 fittings and legal costs that are agreed
between the landlord and tenant or, if there is
no agreement, determined under Part 10 of
the Retail Leases Act 2002.
(6) This section only has effect from
20 1 November 2003.
Note: This section sets out what the tenant is entitled
to but does not prevent the tenant from
accepting other arrangements when the details
of a relocation are being negotiated.".
25 109. Minor amendments
(1) In section 34(1) of the Retail Tenancies Reform
Act 1998, for "13" substitute "13A".
(2) In section 34 of the Retail Tenancies Reform
Act 1998, after sub-section (2) insert--
30 "(3) The amendment made to this section by
section 109(1) of the Retail Leases Act 2002
only has effect from 1 November 2003.".
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(3) In section 52(1) of the Retail Tenancies Reform
Act 1998, after "that Act" (where first occurring)
insert "(and from 1 November 2003, that Act as
amended by Part 13 of the Retail Leases Act
5 2002)".
__________________
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PART 13--AMENDMENT OF RETAIL TENANCIES ACT 1986
110. Definitions
See:
In section 3(1) of the Retail Tenancies Act 1986, Act No.
insert the following definitions-- 106/1986.
Reprint No. 3
5 ' "outgoings" has the same meaning as in the as at
14 July 1997.
Retail Leases Act 2002; LawToday:
www.dms.
"Retail Industry Commissioner" has the same dpc.vic.
meaning as in the Retail Leases Act 2002; gov.au
"specialist retail valuer" has the same meaning
10 as in the Retail Leases Act 2002;'.
111. Application
In section 4 of the Retail Tenancies Act 1986,
after sub-section (4) insert--
"(5) For the purposes of this Act, on and after
15 1 November 2003 an assignment of a retail
premises lease is taken to be a continuation
of that lease (and not the entering into of a
new lease).
(6) If in this Act (as amended by Part 13 of the
20 Retail Leases Act 2002) it is provided that a
provision, or an amendment made to a
provision, only has effect from 1 November
2003, the intention of the Parliament is--
(a) that the provision, or the provision as
25 amended, takes effect from the
beginning of that date for the purposes
of the continued application of this Act
as provided by section 52 of the Retail
Tenancies Reform Act 1998 and for
30 no other purpose; and
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(b) any provision of this Act amended or
repealed by Part 13 of the Retail
Leases Act 2002 continues (as in force
immediately before 1 July 1998) to
5 have effect until 1 November 2003 for
the purposes of the continued
application of this Act as provided by
section 52 of the Retail Tenancies
Reform Act 1998.".
10 112. Rent review
In section 10 of the Retail Tenancies Act 1986,
for sub-sections (4), (5), (6) and (7) substitute--
"(4) If a provision in a retail premises lease that
provides for a review of the rent does not
15 comply with sub-section (1), the rent is to
be--
(a) as agreed between the landlord and
tenant; or
(b) if there is no agreement within 30 days
20 after the landlord gives the tenant, or
the tenant gives the landlord, a written
notice specifying an amount of rent for
the purposes of the review, the amount
determined by a specialist retail valuer
25 appointed by the Retail Industry
Commissioner as the current market
rent of the retail premises (as described
in section 11(2)).
(5) The landlord and tenant are to pay the costs
30 of a valuation referred to in sub-section
(4)(b) in equal shares.
(6) The amendments made to this section by
section 112 of the Retail Leases Act 2002
only have effect from 1 November 2003.".
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113. New sections 11 and 11A substituted
In the Retail Tenancies Act 1986, for section 11
substitute--
'11. Rent based on turnover
5 (1) A provision in a retail premises lease that the
rent is to be determined either fully or partly
by reference to the turnover of the business
is void unless the lease specifies how the rent
is to be determined.
10 Note: If the provision is void, see section 11A.
(2) If a retail premises lease specifies how the
rent is to be determined fully or partly by
reference to the turnover of the business, the
tenant must give the landlord--
15 (a) within 14 days after the end of each
month for which the rent is to be
determined in that way or such longer
period as the lease provides, a
statement in writing giving the turnover
20 during that month or other period to
which the statement relates; and
(b) within 28 days after the end of each
year for which the rent is to be
determined in that way or such longer
25 period as the lease provides and at the
end of the lease or on an assignment of
the lease--
(i) a statement of the turnover; and
(ii) an audit report from an
30 independent accountant stating
that in his or her opinion the
statement fairly presents the
turnover of the business during
that year or other period to which
35 the statement relates.
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(3) A tenant who gives the landlord statements
for a period in accordance with sub-section
(2) satisfies any obligation under the lease to
provide turnover figures or statements for
5 that period.
(4) For the purposes of sub-sections (2) and (3)
and any provision of a retail premises lease
about the determination of rent by reference
to turnover, "turnover" does not include
10 any of the following--
(a) the net amount of discounts reasonably
and properly allowed to any customer
in the usual course of business;
(b) the amount of losses incurred in the
15 resale or disposal of goods reasonably
and properly purchased from customers
as trade-ins in the usual course of
business;
(c) the amount of uncollected credit
20 accounts written off by the tenant
(except to the extent that amounts of a
credit account previously written off by
the tenant are recovered);
(d) the amount of any cash or credit refund
25 allowed on a transaction the proceeds
of which have previously been included
as turnover, if the merchandise is
returned and the sale is cancelled or
some or all of the fees for the services
30 are refunded;
(e) the amount of any instalment of
purchase money refunded to customers
where a lay-by transaction is cancelled;
(f) the amount of any purchase, receipt or
35 other similar tax (including GST)
imposed on the purchase price or cost
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of hire of merchandise or services at the
point of sale or hire;
(g) the amount of delivery charges;
(h) the price of merchandise exchanged
5 between stores of the tenant made
solely for the convenient operation of
business and not for the purpose of
concluding a sale made at or from the
retail premises to which the lease
10 relates;
(i) the price of merchandise returned to
shippers, wholesalers or manufacturers;
(j) the amount received from the sale of
the fixtures and fittings of the tenant
15 from the premises;
(k) money received for entries in any
public lottery within the meaning of the
Public Lotteries Act 2000, other than
amounts derived as commission or fees
20 on those entries;
(l) any other matter which the landlord and
the tenant agree is not included as
turnover.
(5) This section only has effect from
25 1 November 2003.
11A. Agreement about rent based on turnover
(1) If--
(a) a provision of a retail premises lease
that the rent is to be determined either
30 fully or partly by reference to the
turnover of the business is void because
of section 11; and
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(b) the lease makes no other provision for
determining the rent--
the rent is to be as agreed in writing between
the landlord and tenant.
5 (2) If the landlord and tenant do not agree on an
amount of rent within 30 days of the landlord
giving the tenant a written notice specifying
an amount, the amount of the rent is to be
determined by a valuation carried out by a
10 specialist retail valuer appointed by--
(a) agreement between the landlord and
tenant; or
(b) if there is no agreement, the Retail
Industry Commissioner--
15 and the landlord and tenant are to pay the
costs of the valuation in equal shares.
(3) This section only has effect from
1 November 2003.'.
114. Options to renew
20 In section 14 of the Retail Tenancies Act 1986,
for sub-sections (3), (4), (5), (6), (7), (8) and (9)
substitute--
"(3) If a retail premises lease contains an option
exercisable by the tenant to renew the lease
25 for a further term, the landlord must notify
the tenant in writing of the date after which
the option is no longer exercisable--
(a) at least 6 months; and
(b) no more than 12 months--
30 before that date but is not required to do so if
the tenant exercises, or purports to exercise,
the option before being notified of the date.
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(4) If sub-section (3) requires the landlord to
notify the tenant but the landlord fails to do
so within the time specified by that sub-
section--
5 (a) the retail premises lease is taken to
provide that the date after which the
option is no longer exercisable is
instead 6 months after the landlord
notifies the tenant as required; and
10 (b) if that date is after the term of the lease
ends, the lease continues until that date
(on the same terms and conditions as
applied immediately before the lease
term ends); and
15 (c) at any time before the landlord notifies
the tenant as required, the tenant may
give written notice to the landlord
terminating the lease from a specified
day that is--
20 (i) on or after the date on which the
term of the lease ends; and
(ii) before the date until which the
lease would otherwise have
continued because of
25 paragraph (b).
(5) If the tenant gives the landlord a notice of
termination under sub-section (4)(c), the
lease terminates on the day specified in the
notice.
30 (6) If an option to renew is exercised because of
sub-section (4)(b) after the term of the lease
ends, the lease for the further term
commences on the expiry of the previous
lease, disregarding for this purpose any
35 period during which that lease continued
because of that sub-section.
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(7) The amendments made to this section by
section 114 of the Retail Leases Act 2002
only have effect from 1 November 2003.".
115. New sections 14A to 15A substituted
5 In the Retail Tenancies Act 1986, for section 15
substitute--
"14A. Estimate of outgoings
(1) A retail premises lease is taken to provide as
set out in this section.
10 (2) The landlord must give the tenant a written
estimate of the outgoings to which the tenant
is liable to contribute under the lease that
itemises those outgoings.
(3) The tenant must be given the estimate of
15 outgoings--
(a) before the lease is entered into; and
(b) in respect of each of the landlord's
accounting periods during the term of
the lease, at least one month before the
20 start of that period.
(4) The tenant is not liable to contribute to any
outgoings of which an estimate is required to
be given to the tenant as set out in this
section until the tenant is given that estimate.
25 (5) This section only has effect from
1 November 2003.
15. Statement of outgoings
(1) A retail premises lease is taken to provide as
set out in this section.
30 (2) The landlord must give the tenant a written
statement that details all expenditure by the
landlord, in each of the landlord's accounting
periods during the term of the lease, on
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account of outgoings to which the tenant is
liable to contribute.
(3) The landlord must do so--
(a) at least once in relation to expenditure
5 during each of the landlord's accounting
periods during the term of the lease;
and
(b) within one month after the end of the
accounting period to which it relates.
10 (4) The outgoings statement may relate to more
than one tenant as long as each tenant to
which it relates can ascertain from the
statement the details relevant to the tenant.
(5) The outgoings statement must be--
15 (a) prepared in accordance with relevant
principles and disclosure requirements
of applicable accounting standards (in
force from time to time) made by the
Australian Accounting Standards
20 Board; and
(b) in the case of a statement given under
sub-section (3)(b), accompanied by a
report prepared by a registered
company auditor (within the meaning
25 of the Corporations Act) that states
whether--
(i) the statement correctly states the
landlord's expenditure during the
accounting period in respect of
30 outgoings to which the tenant is
liable to contribute; and
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(ii) the total amount of estimated
outgoings for that period (as
shown in the estimate of
outgoings given to the tenant)
5 exceeded the total actual
expenditure by the landlord in
respect of those outgoings during
that period.
(6) However, the outgoings statement given
10 under sub-section (3)(b) need not be
accompanied by an auditor's report if it--
(a) does not relate to any outgoings other
than--
(i) GST; and
15 (ii) land tax and water, sewerage and
drainage rates and charges; and
(iii) municipal council rates and
charges; and
(iv) insurance; and
20 (v) any other outgoing of a kind
prescribed by the regulations
made for the purposes of section
47(6)(a)(v) of the Retail Leases
Act 2002; and
25 (b) is accompanied by copies of
assessments, invoices, receipts or other
proof of payment for all expenditure by
the landlord included in the statement.
(7) If requested by the tenant, the landlord must
30 make available for inspection by the tenant,
or by a representative of the tenant, copies of
all accounting documents on which the
outgoings statement is based.
(8) This section only has effect from
35 1 November 2003.
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PART 13--AMENDMENT OF RETAIL TENANCIES ACT 1986
s. 115
15A. Adjustment of contributions to outgoings
(1) A retail premises lease is taken to provide as
set out in this section.
(2) There is to be an adjustment between the
5 landlord and tenant for each of the landlord's
accounting periods during the term of the
lease to take account of any underpayment or
overpayment by the tenant in respect of
outgoings during that period.
10 (3) The adjustment is to take place--
(a) within one month after the landlord
gives the tenant the outgoings statement
under section 15 for the period; or
(b) within 4 months after the end of the
15 period--
whichever is earlier.
(4) The adjustment is to be calculated on the
basis of the difference between--
(a) the total amount of outgoings in respect
20 of which the tenant contributed (that is,
the estimated total expenditure by the
landlord on outgoings during the
period); and
(b) the total actual expenditure by the
25 landlord in respect of those outgoings
during the period, but taking into
account only expenditure properly and
reasonably incurred by the landlord in
the payment of those outgoings.
30 (5) This section only has effect from
1 November 2003.".
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PART 13--AMENDMENT OF RETAIL TENANCIES ACT 1986
s. 116
116. New sections 17A and 17B inserted
In the Retail Tenancies Act 1986, after section 17
insert--
"17A. Relocation of the tenant's business
5 (1) A retail premises lease that provides for--
(a) relocation of the tenant's business; or
(b) termination of the lease and offer of a
new lease of alternative retail
premises--
10 is taken to provide as set out in this section.
(2) The landlord cannot require the tenant's
business to be relocated unless the landlord
has provided the tenant with details of a
proposed refurbishment, redevelopment or
15 extension that are sufficient to indicate a
genuine proposal that--
(a) is to be carried out within a reasonably
practicable time after the relocation;
and
20 (b) cannot be carried out practicably
without vacant possession of the retail
premises.
(3) The landlord cannot require the tenant's
business to be relocated unless the landlord
25 has given the tenant at least 3 months'
written notice of the relocation with details
of alternative comparable retail premises to
be made available to the tenant.
(4) The tenant is entitled to be offered a new
30 lease of the alternative retail premises on the
same terms and conditions as the existing
lease except that--
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PART 13--AMENDMENT OF RETAIL TENANCIES ACT 1986
s. 116
(a) the term of the new lease is to be the
same as the remaining term of the
existing lease; and
(b) the rent for the alternative retail
5 premises is to be the same as the rent
for the existing retail premises, adjusted
to take into account the difference in
the commercial values of the premises
at the time of relocation.
10 (5) The tenant is entitled to payment by the
landlord of the tenant's reasonable costs of
the relocation, including (but not limited to)
the costs of dismantling and reinstalling or
modifying or replacing any fixtures and
15 fittings and legal costs that are agreed
between the landlord and tenant or, if there is
no agreement, determined under Part 10 of
the Retail Leases Act 2002.
(6) This section only has effect from
20 1 November 2003.
Note: This section sets out what the tenant is entitled
to but does not prevent the tenant from
accepting other arrangements when the details
of a relocation are being negotiated.
25 17B. Landlord's liability for repairs
(1) A retail premises lease is taken to provide as
set out in this section.
(2) The landlord is responsible for maintaining
in good repair--
30 (a) the structure of, or fixtures in, the retail
premises; or
(b) plant or equipment at the retail
premises; or
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PART 13--AMENDMENT OF RETAIL TENANCIES ACT 1986
s. 117
(c) the appliances, fittings or fixtures
provided under the lease by the
landlord relating to the gas, electricity,
water, drainage or other services--
5 not being fixtures, plant, equipment,
appliances or fittings that the tenant is
entitled to remove at the end of the lease.
(3) The tenant may arrange for urgent repairs to
be carried out to those things if--
10 (a) the repairs are necessary to fix or
remedy a fault or damage that has or
causes a substantial effect on or to the
tenant's business at the premises; and
(b) the tenant is unable to get the landlord
15 or the landlord's agent to carry out the
repairs despite having taken reasonable
steps to arrange for the landlord or
agent to do so.
(4) If the tenant carries out those repairs--
20 (a) the tenant must give the landlord
written notice of the repairs and the
cost within 14 days after the repairs are
carried out; and
(b) the landlord is liable to reimburse the
25 tenant for the reasonable cost of the
repairs.
(5) This section only has effect from
1 November 2003.".
117. Minor amendments
30 (1) In section 20(1) of the Retail Tenancies Act
1986, for "11" substitute "11A".
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PART 13--AMENDMENT OF RETAIL TENANCIES ACT 1986
s. 117
(2) In section 20 of the Retail Tenancies Act 1986,
after sub-section (2) insert--
"(3) The amendment made to this section by
section 117(1) of the Retail Leases Act 2002
5 only has effect from 1 November 2003.".
__________________
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Act No.
PART 14--REPEAL OF 1998 ACT AND TRANSITIONAL PROVISIONS
s. 118
PART 14--REPEAL OF 1998 ACT AND TRANSITIONAL
PROVISIONS
118. Repeal of Retail Tenancies Reform Act 1998
The Retail Tenancies Reform Act 1998 is
5 repealed.
119. General transitional and savings
(1) Despite the repeal of the Retail Tenancies
Reform Act 1998 but subject to Part 10 of this
Act, that Act continues to apply, and from
10 1 November 2003 applies as amended by Part 12
of this Act, to a retail premises lease to which it
applied immediately before its repeal.
(2) However, if proceedings under Part 3 of the
Retail Tenancies Reform Act 1998 have been
15 commenced but are not completed before that Act
is repealed, Part 3 of that Act continues to apply to
those proceedings despite that repeal and despite
Part 10 of this Act.
(3) Sections 39 and 52 of the Retail Tenancies
20 Reform Act 1998, as in force immediately before
the repeal of that Act, continue to have effect
despite that repeal.
(4) For the avoidance of doubt it is declared that the
effect of section 4(1) of the Retail Tenancies
25 Reform Act 1998 is, and always has been, to
apply that Act to a retail premises lease within the
meaning of that Act that was entered into on or
after 1 July 1998 including one entered into under
an option provided under such a lease that was
30 entered into before that date.
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PART 14--REPEAL OF 1998 ACT AND TRANSITIONAL PROVISIONS
s. 120
120. Disclosure statements
A disclosure statement given under section 8 of
the Retail Tenancies Reform Act 1998 that
provides information about each of the matters set
5 out in the Schedule to that Act is taken to be, and
to have been at all times, in the form of that
Schedule regardless of whether it has the same
layout as the disclosure statement set out in that
Schedule.
10 121. Notification of amount of land tax
(1) Despite anything to the contrary in this Act,
section 50 of this Act does not apply to--
(a) a lease entered into before the
commencement of this section; or
15 (b) an assignment of such a lease.
(2) If--
(a) section 50 of this Act does not apply to a
lease or an assignment of a lease; and
(b) the tenant is liable under the lease to pay an
20 amount in respect of tax under the Land Tax
Act 1958 for which the landlord is liable;
and
(c) the landlord receives an assessment of that
tax on or after the commencement of this
25 section--
within 21 days of receiving the assessment, the
landlord must give written notice to the tenant of
the amount of the assessment.
Penalty: 10 penalty units.
__________________
30
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Act No.
part 15--consequential and other amendments
s. 122
PART 15--CONSEQUENTIAL AND OTHER AMENDMENTS
122. Liquor Control Reform Act 1998
(1) In section 11 of the Liquor Control Reform Act
1998, after sub-section (7) insert--
5 "(8) The Retail Industry Commissioner appointed
under the Retail Leases Act 2002 may
investigate the compliance by licensees of
packaged liquor licences with a code of
conduct under sub-section (5).".
10 (2) In section 26L(2)(c)(i) of the Liquor Control
Reform Act 1998, for "Retail Tenancies
Reform Act 1998" substitute "Retail Leases
Act 2002".
123. Shop Trading Reform Act 1996
15 (1) In section 7(1) and (2) of the Shop Trading
Reform Act 1996, after "Sunday" insert "or a
public holiday where the shop is located".
(2) In section 7(3) of the Shop Trading Reform Act
1996--
20 (a) for "Retail Tenancies Reform Act 1998"
substitute "Retail Leases Act 2002";
(b) for "Part 3" substitute "Part 10";
(c) for "dispute arising under the retail premises
lease" substitute "retail tenancy dispute
25 within the meaning of that Part".
124. Victorian Civil and Administrative Tribunal Act 1998
(1) After section 73(2) of the Victorian Civil and
Administrative Tribunal Act 1998 insert--
"(2A) The Retail Industry Commissioner appointed
30 under the Retail Leases Act 2002 may
intervene at any time in a proceeding under
section 8A of the Fair Trading Act 1999.".
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Act No.
part 15--consequential and other amendments
s. 124
(2) In Schedule 1 to the Victorian Civil and
Administrative Tribunal Act 1998, after Part 17
insert--
"PART 17A--RETAIL LEASES ACT 2002
5 77B. Any legally qualified member may make a
declaration
Despite anything to the contrary in
section 124, a declaration may be made in a
proceeding under the Retail Leases Act
10 2002 by the Tribunal constituted by a
member who is a legal practitioner.".
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Act No.
Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
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