RETAIL TENANCIES REFORM BILL 1998

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RETAIL TENANCIES REFORM BILL 1998

PARLIAMENT OF VICTORIA Retail Tenancies Reform Act 1998 Act No. TABLE OF PROVISIONS Clause Page PART 1--PRELIMINARY 1 1. Purpose 1 2. Commencement 1 3. Definitions 2 4. Application 5 5. Exemption from Act 6 6. Act to bind Crown 6 7. Retail tenancies information booklet 6 PART 2--RETAIL PREMISES LEASES 7 8. Disclosure 7 9. Tenant's business plan 9 10. Tenant to be given copy of lease 10 11. Key-money and goodwill 11 12. Rent review 13 13. Rent based on turnover 15 14. Turnover figures not generally required 18 15. Right to at least 5 years tenancy 20 16. Notice of landlord's intentions 24 17. Disclosure on renewal of lease 25 18. Options to renew 26 19. Tenant's liability for costs associated with lease 28 20. Limit on contributions for non-specific expenses 28 21. Sharing of operating expenses 29 22. Consent to assignment or sub-lease 31 23. Disclosure to assignees 33 24. Notice of works 33 25. Urgent repairs 34 26. Compensation by landlord 35 27. Provisions about chambers of commerce and merchants' associations 37 28. Discrimination against members etc. of merchants' associations 37 29. Indemnities 38 i 532057B.I1-20/2/98

Clause Page 30. Relocation 38 31. Consultation on proposed redevelopment 39 32. Disclosure of tenant's business plan 39 PART 3--DETERMINATION OF DISPUTES AND RELATED TRANSITIONAL PROVISIONS 41 33. Object of this Part 41 34. Definitions 41 35. Application of this Part 41 36. Disputes to be referred for conciliation 42 37. Conduct of conciliation 43 38. Costs of conciliation 43 39. Result of conciliation 43 40. Arbitration if conciliation fails or is inappropriate 44 41. Panel of conciliators and arbitrators 45 42. Liability of panel members 45 43. Effect of defect or irregularity in appointment 46 PART 4--DISCLOSURE STATEMENTS UNDER FRANCHISE ARRANGEMENTS 47 44. Leases 47 45. Licences 47 PART 5--GENERAL 48 46. Service of notices 48 47. Act prevails 48 48. Supreme Court--limitation of jurisdiction 48 49. Regulations 49 PART 6--CONSEQUENTIAL AMENDMENTS AND TRANSITIONAL PROVISIONS 50 50. Retail Tenancies Act 1986 50 51. Amendment of Shop Trading Reform Act 1996 50 52. Transitional and savings 50 __________________ SCHEDULE--Form of Disclosure Statement 51 NOTES 56 ii 532057B.I1-20/2/98

PARLIAMENT OF VICTORIA Initiated in Assembly 18 February 1998 A BILL to reform the law relating to retail tenancies, to repeal the Retail Tenancies Act 1986 and for other purposes. Retail Tenancies Reform Act 1998 The Parliament of Victoria enacts as follows: PART 1--PRELIMINARY 1. Purpose The purpose of this Act is to reform the law relating to retail tenancies. 5 2. Commencement (1) This Part comes into operation on the day on which this Act receives the Royal Assent. 1 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 s. 3 Act No. (2) Subject to sub-section (3), the remaining provisions of this Act come into operation on a day or days to be proclaimed. (3) If a provision referred to in sub-section (2) does 5 not come into operation before 1 January 1999, it comes into operation on that day. 3. Definitions (1) In this Act-- "accountant" means a member of the Institute of 10 Chartered Accountants in Australia or the Australian Society of Accountants or the National Institute of Accountants; "building" includes any structure; "common area" means an area within or adjacent 15 to a retail shopping centre that is under the control of the landlord and is intended for use by the public or in common by tenants in the conduct of business at the centre, and includes all stairways, escalators, elevators, 20 malls, walkways, trafficways, parking areas, toilets, restrooms, gardens and fountains that are under the landlord's control and intended to be so used; "company auditor" means a registered company 25 auditor within the meaning of the Corporations Law; "exempt premises" means premises that are exempted from the operation of this Act under section 5; 30 "key-money" means-- (a) money that a tenant is to pay; or 2 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 s. 3 Act No. (b) any benefit that a tenant is to confer-- by way of a premium or something of a like nature in consideration of the granting of or agreeing to grant a lease or the renewal of a 5 lease or the consenting to an assignment of a lease or to the sub-leasing of the premises to which a lease relates; "landlord" means the person who under a lease is entitled to the rent payable in respect of 10 the premises to which the lease relates; "lease" means a lease or sub-lease having a term of not less than one year and includes an agreement for such a lease or sub-lease; "retail premises" means any premises that under 15 the terms of the lease relating to them are used, or are to be used, wholly or predominantly for the carrying on of a business involving the sale or hire of goods by retail or the retail provision of services, 20 but does not include-- (a) premises that have a floor area that exceeds 1000 square metres; or (b) premises that are used wholly or predominantly for the carrying on of a 25 business by the tenant under a name or mark identifying, commonly associated with, or controlled by the landlord or a person or corporation within the meaning of the Corporations Law 30 connected with the landlord; or (c) premises that are used wholly or predominantly for the carrying on of a business by the tenant on behalf of the landlord as an employee or agent of the 35 landlord; or 3 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 s. 3 Act No. (d) premises the lease relating to which is held as a tenant by-- (i) a corporation within the meaning of the Corporations Law that 5 would not be eligible to be incorporated in Victoria as a proprietary company; or (ii) a subsidiary of a corporation referred to in sub-paragraph (i); or 10 (e) exempt premises; "retail shopping centre" means a cluster of premises-- (a) 5 or more of which are retail premises; and 15 (b) all of which have, or if leased would have, a common head landlord-- but does not include a building with more than one storey except in relation to each storey of the building on which is situated a 20 cluster of premises in respect of which paragraphs (a) and (b) apply; "spouse" includes-- (a) in relation to a man, a woman who is living with the man as his wife on a 25 genuine domestic basis although not married to him; and (b) in relation to a woman, a man who is living with the woman as her husband on a genuine domestic basis although 30 not married to her; "statutory option" means the option that a lease gives a tenant under section 15(1); 4 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 s. 4 Act No. "valuer" means a person who holds the qualifications or experience specified under section 13DA(1A) of the Valuation of Land Act 1960. 5 (2) A provision contained in any other agreement or arrangement between the parties to a retail premises lease is void if that provision would be void under this Act if contained in a retail premises lease. 10 (3) A reference in this Act to a dispute arising under a lease includes a reference to a dispute arising in relation to that lease under a provision of this Act. (4) For the purposes of this Act, a retail premises lease is entered into or assigned when-- 15 (a) under the lease or assignment, the tenant enters into possession of the premises with the consent of the landlord or begins to pay rent for them; or (b) all of the parties to the lease or assignment 20 have signed the lease or assignment-- whichever first occurs. (5) In determining the floor area of premises for the purposes of this Act, regard shall be had to the guidelines for the measurement of lettable area 25 issued by the Minister and notified in the Government Gazette. 4. Application (1) This Act applies to a retail premises lease that is entered into after the commencement of this 30 section including one entered into under an option provided under a retail premises lease that was entered into before that commencement. 5 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 s. 5 Act No. (2) Subject to this section, this Act applies to every retail premises lease that provides for the occupation of premises in Victoria-- (a) irrespective of where the lease was entered 5 into; and (b) even though the lease purports to be governed by a law other than the law of Victoria. 5. Exemption from Act 10 The Governor in Council may exempt any class or kind of premises from the operation of this Act by regulation-- (a) either completely or to a specified extent; (b) either unconditionally or subject to specified 15 conditions. 6. Act to bind Crown This Act binds the Crown, not only in right of the State of Victoria, but also, so far as the legislative power of the Parliament permits, the Crown in all 20 its other capacities. 7. Retail tenancies information booklet (1) The Minister must arrange for the preparation and publication of an information booklet about retail tenancies. 25 (2) The Minister must ensure that copies of the information booklet-- (a) are available for inspection by any member of the public without charge; and (b) can be purchased on demand by any member 30 of the public-- at the office of the Department of the Minister. _______________ 6 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 s. 8 Act No. PART 2--RETAIL PREMISES LEASES 8. Disclosure (1) At least 7 days before a prospective tenant of retail premises enters into a retail premises lease, 5 the landlord must give to the prospective tenant-- (a) a disclosure statement in the form of the Schedule providing information about the matters set out in the Schedule; and (b) if the retail premises lease is, or any of the 10 terms of the retail premises lease are, in writing, a copy of the proposed lease or a copy of the written terms of the proposed lease; and (c) a copy of the retail tenancies information 15 booklet published by the Minister under section 7. (2) If a tenant has not been given a disclosure statement in accordance with sub-section (1) before entering into a retail premises lease-- 20 (a) the tenant may withhold payment of rent until the end of 7 days after the landlord gives the tenant a copy of the disclosure statement; and (b) the tenant is not liable to pay the rent 25 attributable to the period before the landlord gave the tenant a copy of 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 gave the tenant a copy of the disclosure statement. (3) If a copy of the retail tenancies information booklet is not available for purchase on demand in 7 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 s. 8 Act No. accordance with section 7(2)(b) the landlord must give the tenant a written notice that such a copy was not available for purchase and that the landlord made all reasonable efforts to obtain such 5 a copy. (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. 10 (5) If-- (a) a retail premises lease is, or any of the terms of a retail premises lease are, in writing and the tenant has not been given a copy of the proposed lease or the written terms of the 15 proposed lease in accordance with sub- section (1); or (b) any information provided by the landlord in a disclosure statement is misleading or false-- 20 the tenant may give the landlord a written notice of termination at any time before the end of 28 days after-- (c) the tenant is given a copy of the lease or its terms; or 25 (d) the tenant is given a copy of the disclosure statement; or (e) entering into the lease-- whichever last occurs. (6) If a tenant gives the landlord a notice of 30 termination under sub-section (2), the lease terminates on the day the notice is given unless a later date is specified in the notice. (7) If a tenant gives the landlord a notice of termination under sub-section (5), the lease 8 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 s. 9 Act No. terminates 14 days after the notice is given unless the landlord gives a notice of objection under sub- section (8). (8) Within 14 days after being given a notice of 5 termination under sub-section (5), a landlord may give the tenant a notice of objection to it on the ground that the landlord has acted honestly and reasonably and ought fairly to be excused for the contravention and that the tenant is substantially 10 in as good a position as the tenant would have been in if there had been no contravention. (9) If the tenant accepts the landlord's notice of objection or if that notice is upheld under Part 3, the lease does not terminate in accordance with 15 the notice of termination. (10) If the tenant does not within 14 days after being given a notice of objection notify the landlord as to whether or not the tenant accepts the notice of objection, the tenant is to be taken to have 20 accepted it. (11) The operation of a notice of termination under sub-section (5) is suspended until the effect of a notice of objection to it is determined. (12) The termination of a lease in accordance with a 25 notice of termination under this section 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 the tenant otherwise agree or it is otherwise 30 determined under Part 3. 9. Tenant's business plan (1) At least 7 days before a prospective tenant of retail premises enters into a retail premises lease, the tenant must give to the prospective landlord a 9 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 s. 10 Act No. plan relating to the business that the prospective tenant proposes to carry on at the retail premises. (2) The prospective tenant must ensure that the business plan referred to in sub-section (1) has 5 been prepared or endorsed by a financial adviser of the prospective tenant. 10. Tenant to be given copy of lease (1) If a retail premises lease is, or any of the terms of a retail premises lease are, in writing signed by the 10 tenant, the landlord must give the tenant a copy of the lease or those terms signed by the landlord and the tenant (which copy may be a photocopy) within 28 days after the lease or the written terms of the lease are signed by the tenant, whether or 15 not at that time stamp duty has been paid on the document containing the lease or those terms. (2) If a landlord contravenes sub-section (1), the tenant may give the landlord a written notice of termination at any time within 42 days after-- 20 (a) if the lease or any of its terms, is in writing, the tenant is given a copy of the lease or its terms; or (b) entering into the lease-- whichever last occurs. 25 (3) Subject to sub-section (4), if a tenant gives the landlord a notice of termination under sub-section (2), the lease terminates 14 days after the notice is given. (4) The provisions of sub-sections (8) to (12) of 30 section 8 apply to a notice of termination given under sub-section (2) of this section in the same manner and to the same extent as they apply to a notice of termination given under section 8(5). 10 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 s. 11 Act No. 11. Key-money and goodwill (1) Subject to sub-section (2)-- (a) a landlord, or a person on behalf of a landlord, must not request, receive or retain 5 the payment of-- (i) any key-money; or (ii) any consideration for the goodwill of the business carried on at the retail premises; and 10 (b) a provision in a retail premises lease is void to the extent-- (i) that it requires or has the effect of requiring the payment of any key- money or consideration for goodwill; or 15 (ii) that the landlord, or a person claiming through the landlord, is entitled to any key-money or consideration for goodwill. (2) Sub-section (1) does not make it unlawful for the 20 landlord or make void a provision in a retail premises lease allowing the landlord to-- (a) recover from the tenant costs which the landlord reasonably incurred in investigating a proposed assignee of the tenant or sub- 25 tenant of the premises; or (b) recover from the tenant costs which the landlord reasonably incurred in connection with an assignment of the lease or a sub- lease, and the obtaining of any necessary 30 consents to the assignment or sub-lease; or (c) claim goodwill from the tenant in relation to the sale of a business which the landlord 11 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 s. 11 Act No. operated from the retail premises immediately before its sale, if the lease was granted to the tenant in the course of the sale of the business; or 5 (d) recover from the tenant in connection with the assignment of the lease, if the retail premises are in a retail shopping centre-- (i) within 12 months of the tenant commencing trading or of any other 10 day, act or event that is prescribed, an amount that is agreed between the landlord and the tenant but not exceeding the amount of rent payable under the lease for the 4 months 15 immediately before the assignment; or (ii) within 2 years of the tenant commencing trading or of any other day, act or event that is prescribed, an amount that is agreed between the 20 landlord and the tenant but not exceeding the amount of rent payable under the lease for the 2 months immediately before the assignment; or (iii) within 3 years of the tenant 25 commencing trading or of any other day, act or event that is prescribed, an amount that is agreed between the landlord and the tenant but not exceeding the amount of rent payable 30 under the lease for the month immediately before the assignment. (3) A landlord must pay any amount received under sub-section (2)(d) to a fund for the benefit of the retail shopping centre. 35 (4) Any payment made, or the value of any benefit conferred, by a tenant and received by or on 12 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 s. 12 Act No. behalf of the landlord in contravention of sub- section (1)(a) or any payment made, or the value of any benefit conferred, under a provision in a lease that is made void by sub-section (1)(b) may 5 be-- (a) recovered from the landlord by the tenant in a court of competent jurisdiction as a debt due; or (b) ordered to be paid by the landlord to the 10 tenant by an award made under Part 3. 12. Rent review (1) If under a retail premises lease the rent payable under the lease or a renewal of the lease is to be reviewed during the term of the lease or under an 15 option to renew the lease, the lease must state the time when the reviews are to take place and the basis or formula on which the reviews are to be made. (2) The basis or formula on which a rent review 20 referred to in sub-section (1) is to be made must be one only of the following-- (a) a fixed percentage of the base rent; (b) an independently published index of prices, costs or wages; 25 (c) a fixed actual amount; (d) the current market rent of the retail premises; (e) another basis or formula prescribed by the regulations. (3) A provision in a retail premises lease or an option 30 to renew the lease other than a provision-- (a) using a basis or formula referred to in sub- section (2)(a), (b) or (c); or 13 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 s. 12 Act No. (b) using a basis or formula prescribed for the purposes of sub-section (2)(e) that is also prescribed to be a basis or formula to which this sub-section does not apply-- 5 is void to the extent that it-- (c) purports to preclude the reduction of the rent or to limit the extent to which the rent may be reduced; or (d) prevents, or enables the landlord or any other 10 person to prevent, any decrease in the rent that may result from the review. (4) A provision in a retail premises lease for a review of the rent is void unless the lease specifies how the review is to be made. 15 (5) If the current market rent is to be used as the formula or basis for rent review, the current market rent is to be taken to be the rent obtainable at the time of the review in a free and open market, between a willing landlord and a willing 20 tenant in an arm's length transaction, where-- (a) the parties have each acted knowledgeably, prudently and without compulsion; and (b) the retail premises were vacant and to be let on similar terms as are contained in the 25 current retail premises lease; and (c) all other relevant factors, matters or variables used in proper land valuation practice have been taken into account. (6) If a provision in a retail premises lease about rent 30 is made void by this section and the lease makes no other provision for determining the rent, the rent is to be as agreed in writing between the landlord and the tenant or if the landlord and the tenant are unable to agree within 30 days of a 35 notice specifying an amount of rent being served 14 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 s. 13 Act No. on the tenant by the landlord, then the amount of the rent is to be determined by a valuer nominated by the Institute of Valuers and Land Economists. (7) If a retail premises lease provides for a review of 5 the rent and does not provide for what is to happen in the event of the landlord and the tenant being unable to agree about the result of the review within 30 days of the completion of the review in accordance with the lease, then the 10 amount of the rent is to be determined by a valuer nominated by the Institute of Valuers and Land Economists. (8) The fees payable to a valuer determining rent under sub-section (6) or (7) are borne jointly by 15 the landlord and the tenant. 13. Rent based on turnover (1) A provision in a retail premises lease that the rent is to be determined either in whole or in part by reference to the turnover of the business is void 20 unless the lease specifies how the rent is to be determined. (2) If a retail premises lease provides for the rent to be determined either in whole or in part by reference to the turnover of the business and that 25 provision is not made void by sub-section (1), the tenant must furnish to the landlord-- (a) within 14 days after the end of each month for which rent is to be so determined or within such other greater period as the lease 30 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 which rent is to be so determined or within 35 such other greater period as the lease 15 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 s. 13 Act No. provides, and at the termination or an assignment of the lease, a statement of the turnover accompanied by an audit report from an independent accountant stating that 5 in his or her opinion the statement fairly presents the turnover of the business during that year or other period to which the statement relates. (3) A tenant who furnishes to the landlord statements 10 for a period in accordance with sub-section (2) satisfies any obligation under the lease to provide turnover figures or statements for that period. (4) For the purposes of sub-sections (2) and (3) and the interpretation of any provision of a retail 15 premises lease that relates to the determination of rent by reference to turnover, "turnover" does not include the following-- (a) the net amount of discounts reasonably and properly allowed to any customer in the 20 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 business; 25 (c) the amount of uncollected credit accounts written off by the tenant; (d) the amount of any cash or credit refund allowed on a transaction the proceeds of which have previously been included as 30 turnover, if the merchandise is returned and the sale is cancelled or fees for the services are refunded wholly or partly; (e) the amount of any instalment of purchase money refunded to customers where a lay-by 35 transaction is cancelled; 16 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 s. 13 Act No. (f) the amount of any purchase, receipt or other similar tax imposed upon the purchase price or cost of hire of merchandise or services at the point of sale or hire; 5 (g) the amount of delivery charges; (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 10 from the retail premises to which the lease relates; (i) the price of merchandise returned to shippers, wholesalers or manufacturers; (j) the amount received from the sale of the 15 fixtures and fittings of the tenant from the premises; (k) receipts from sales of tickets in any Consultation or soccer football pool within the meaning of those terms in the Tattersall 20 Consultations Act 1958, other than amounts derived as commission or fees from those sales; (l) any other matter which the landlord and the tenant agree does not form turnover-- 25 but does include the amount recovered of a credit account previously written off by the tenant. (5) The amounts referred to in paragraphs (d) and (e) of sub-section (4) must be deducted from the turnover for the purposes referred to in that sub- 30 section. (6) If a provision of a retail premises lease that the rent is to be determined either in whole or in part by reference to the turnover of the business is made void by this section and the lease makes no 35 other provision for determining the rent, the rent 17 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 s. 14 Act No. is to be as agreed in writing between the landlord and the tenant. (7) If the landlord and the tenant are unable to agree about the rent within 30 days of a notice 5 specifying an amount of rent being served on the tenant by the landlord, then the rent is to be determined by a valuer nominated by the Institute of Valuers and Land Economists. (8) The fees payable to a valuer determining rent 10 under sub-section (7) are borne jointly by the landlord and the tenant. 14. Turnover figures not generally required (1) A provision in a retail premises lease-- (a) that the tenant is obliged to furnish, or to 15 permit the landlord or the landlord's agent to gather, figures or statements relating to the turnover of the business; or (b) that the landlord is entitled to be furnished with figures or statements relating to the 20 turnover of the business-- is void unless the figures or statements are required for the purpose of determining rent, either in whole or in part, by reference to the turnover of the business, or the landlord and the 25 tenant are corporations that are, by section 50 of the Corporations Law, considered to be related to each other for the purposes of that Law. (2) If a retail premises lease contains a provision of a kind described in sub-section (1) and the figures 30 or statements to which the provision applies are required for the purpose of determining rent, either in whole or in part, by reference to the turnover of the business, that provision ceases to 18 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 s. 14 Act No. have effect as soon as those figures or statements are no longer required for the purpose. (3) Subject to sub-section (4), a landlord must not communicate to any person any information about 5 the turnover of the business obtained from turnover figures or statements provided by the tenant or gathered by the landlord or the landlord's agent (whether in accordance with section 13(2) or under the lease) unless the communication is 10 made with the consent of the tenant. (4) Nothing in sub-section (3) prevents a landlord from-- (a) if the retail premises are situated in a retail shopping centre, including turnover 15 information in a document, intended to be used for management purposes, that gives aggregate turnover information about the centre in a manner that does not disclose figures or statements relating to the 20 individual turnover of the tenant's business; (b) if the retail premises are situated in a retail shopping centre, divulging or communicating turnover information to a prospective purchaser or mortgagee of the 25 centre; (c) divulging or communicating turnover information to a court, tribunal or conciliator or an arbitrator; (d) divulging or communicating turnover 30 information in compliance with any Act or court order; (e) divulging or communicating turnover information to the landlord's professional advisers. 19 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 s. 15 Act No. (5) A landlord who contravenes sub-section (3) is liable to pay the tenant for any loss or damage suffered by the tenant as a consequence of that contravention reasonable compensation as agreed 5 in writing between the parties or, in the absence of agreement, as determined under Part 3. 15. Right to at least 5 years tenancy (1) Subject to sub-section (2), a retail premises lease gives the tenant an option which is exercisable, 10 subject to sub-section (3), by giving notice to the landlord in the prescribed form, to renew the lease for a term beginning immediately after the end of the current term and continuing until a day specified in the notice being a day that is not later 15 than-- (a) if the premises were occupied by the tenant as retail premises during any period which ended immediately before the current term began--the day that is 5 years after the 20 beginning of that period; (b) if the premises were not occupied by the tenant as described in paragraph (a)--the day that is 5 years after the beginning of the current term. 25 (2) Sub-section (1) does not apply to a retail premises lease if-- (a) the lease provides for occupation of the premises by the tenant for a term that is at least 5 years when taken together with-- 30 (i) any period ending immediately before the beginning of the current term during which the premises were occupied as retail premises by the tenant; (ii) any period during which the tenant will 35 be entitled to occupy the premises if the 20 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 s. 15 Act No. tenant exercises an option in the lease to renew it; or (b) the landlord holds the premises under a head lease and renewal of the retail premises lease 5 or renewal of the retail premises lease for a longer term than that provided for in an option to renew contained in it would be inconsistent with the head lease; or (c) the lease is not the first retail premises lease 10 entered into by the tenant as a tenant, whether before or after the commencement of this section, and for this purpose a retail premises lease entered into by-- (i) a corporation of which the tenant, or 15 the spouse of the tenant, is or was a director or secretary; or (ii) if the tenant is a corporation, a corporation that is or was a related corporation within the meaning of 20 section 50 of the Corporations Law; or (iii) the spouse of the tenant; or (iv) a partner of the tenant; or (v) a trustee or trustees under a trust of which the tenant is a beneficiary; or 25 (vi) a person with whom the tenant has entered into an arrangement for sharing of profits, union of interest, co- operation, joint venture, reciprocal concession or otherwise-- 30 as a tenant is to be taken to have been entered into by the tenant; or (d) not less than 90 days before the current term ends the landlord gives notice to the tenant 21 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 s. 15 Act No. in the prescribed form that at the end of that term the premises are to be-- (i) demolished; or (ii) substantially repaired, renovated or 5 reconstructed and the repair, renovation or reconstruction cannot be carried out practicably without vacant possession. (3) The statutory option is exercisable not less than 90 days before the current term ends and only if the 10 tenant has remedied any default under the lease about which the landlord has given the tenant written notice. (4) A lease is not renewable under the statutory option if at the end of the current term the tenant 15 has not remedied any default under the lease about which the landlord has given the tenant written notice. (5) The terms and conditions upon which a lease is renewable under the statutory option are the same 20 as those upon which the lease is held at the time the tenant gives notice of exercising the option except that-- (a) the tenant does not have any further statutory option to renew the lease; and 25 (b) the landlord is not entitled to determine the lease at a time before the end of the term provided for by the statutory option unless-- (i) the tenant has not remedied a default under the lease about which the 30 landlord has given the tenant written notice; or (ii) the whole or any part of the retail premises or, if the retail premises are situated in a retail shopping centre, the 35 whole or any part of the retail shopping 22 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 Act No. centre has been destroyed or so damaged as to render the retail premises or a substantial part of them or the usual means of access to them 5 unfit for occupation or use by the tenant; or (iii) it would be inconsistent with a head lease under which the landlord holds the premises for the retail premises 10 lease to continue; and (c) if the lease does not provide for review of the amount of rent payable, the rent payable during the term for which the lease is renewed is to be as agreed in writing 15 between the landlord and the tenant; and (d) if the landlord and the tenant are unable to agree about the rent within 30 days of a notice specifying an amount of rent being served on the tenant by the landlord, then the 20 rent is to be determined by a valuer nominated by the Institute of Valuers and Land Economists. (6) The fees payable to a valuer determining rent under sub-section (5)(d) are borne jointly by the 25 landlord and the tenant. (7) If a retail premises lease has been assigned, a reference in sub-section (1)(a), (1)(b) or (2)(a)(i) to the period during which the premises were occupied by the tenant is to be taken to include 30 any period during which the premises were occupied by the tenant's predecessors in title. (8) If-- (a) a dispute arises between the landlord and the tenant as to whether or not-- 35 (i) the statutory option is exercisable; or 23 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 s. 16 Act No. (ii) the lease is renewable under it; or (iii) the lease may be determined before the end of the term provided for by it-- on account of a default under the lease; and 5 (b) the dispute is referred to an arbitrator under Part 3-- the arbitrator has power to order that the default be ignored for the purposes of this section if the arbitrator is satisfied that the tenant has acted 10 honestly and reasonably and ought fairly to be excused for the default and that the landlord is substantially in as good a position as the landlord would have been in if there had been no such default. 15 16. Notice of landlord's intentions (1) Unless the tenant under a retail premises lease has an option under the lease of a further term, the landlord must, by written notice to the tenant at least 6 months and not more than 12 months 20 before the end of the term of the lease-- (a) offer the tenant a renewal of the lease on terms specified in the notice including terms as to rent; or (b) inform the tenant that the landlord does not 25 propose to offer the tenant a renewal of the lease. (2) An offer under sub-section (1)(a) is not capable of revocation for one month after it is made, except with the consent of the tenant. 30 (3) A notice under sub-section (1)(b) may include other information. (4) If a landlord fails to notify a tenant as required by sub-section (1), the lease continues, subject to sub-section (6), until a day specified in a notice 24 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 s. 17 Act No. (containing the same information as is required by sub-section (1)) given to the tenant by the landlord that is more than 3 months after the giving of the notice. 5 (5) The terms and conditions upon which a lease that continues by virtue of sub-section (4) is held are the same as those upon which the lease was held immediately before it was continued. (6) If a landlord fails to notify a tenant as required by 10 sub-section (1), the tenant may, by written notice given to the landlord, determine the lease as from any day that is-- (a) not earlier than the expiry of the term of the lease; and 15 (b) not later than the day to which the lease would otherwise have continued by virtue of sub-section (4). 17. Disclosure on renewal of lease (1) If-- 20 (a) a tenant has an option under a lease for a further term; or (b) a landlord proposes to renew a retail premises lease-- the landlord must give to the tenant, at least 7 25 days before the end of the current term of the retail premises lease, a disclosure statement in the form of the Schedule providing information about the matters set out in the Schedule that is current as at a date within the period of 3 months before 30 the statement is given. (2) If the tenant has not been given a disclosure statement before the retail premises lease is renewed-- 25 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 s. 18 Act No. (a) the tenant may withhold payment of the rent until 7 days after the landlord gives the tenant a copy of the disclosure statement; and 5 (b) the tenant is not liable to pay rent attributable to the period before the landlord gives the tenant a copy of the disclosure statement; and (c) the tenant may give the landlord a written 10 notice of termination at any time before the end of 7 days after the landlord gives the tenant a copy of the disclosure statement. (3) The provisions of sub-sections (6) and (12) of section 8 apply to a notice of termination given 15 under sub-section (2)(c) of this section in the same manner and to the same extent as they apply to a notice of termination given under section 8(2). 18. Options to renew (1) In this section "option" does not include the 20 statutory option. (2) If a retail premises lease contains an option exercisable by the tenant to renew the lease for a further term, the lease must state-- (a) the date until which the option is exercisable; 25 and (b) the manner in which the option is to be exercised; and (c) the terms and conditions upon which the lease is renewable under the option; and 30 (d) the manner in which the rent payable during the term for which the lease is renewed is to be determined. (3) If a retail premises lease contains an option exercisable by the tenant to renew the lease for a 26 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 s. 18 Act No. further term, the landlord must notify the tenant in writing of the date after which the option is no longer exercisable at least 3 months before that date. 5 (4) If a landlord fails to notify a tenant as required by sub-section (3), the retail premises lease is to be taken to provide that the date after which the option is no longer exercisable is the day that is 3 months after the landlord gives the tenant the 10 notice required by that sub-section and, if that date is later than the date of the expiry of the term of the lease, the lease continues, subject to sub- section (6), until that date. (5) If a retail premises lease contains an option 15 exercisable by the tenant to renew the lease for a 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 20 given the tenant written notice; or (b) the tenant has persistently defaulted under the lease throughout its term and the landlord has given the tenant written notice of the defaults. 25 (6) The terms and conditions upon which a lease that continues by virtue of sub-section (4) is held are the same as those upon which the lease was held immediately before it was continued. (7) If a landlord fails to notify a tenant as required by 30 sub-section (3), the tenant may, by written notice given to the landlord, determine the lease as from any day that is-- (a) not earlier than the expiry of the term of the lease; and 27 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 s. 19 Act No. (b) not later than the day to which the lease would otherwise have continued by virtue of sub-section (4). 19. Tenant's liability for costs associated with lease 5 (1) A tenant under a retail premises lease is not liable to pay any amount for the landlord's legal or other expenses in relation to the preparation of the lease. (2) Sub-section (1) does not prevent a tenant under a 10 retail premises lease from being required to pay for-- (a) survey fees associated with the registration of the lease; or (b) the reasonable expenses incurred by the 15 landlord in obtaining the consent of the landlord's mortgagee to the lease; or (c) stamp duty on the lease; or (d) fees payable to the Registrar-General or Registrar of Titles for the registration of the 20 lease; or (e) the costs referred to in section 11(2)(a) or (b). 20. Limit on contributions for non-specific expenses (1) If retail premises are situated in a retail shopping 25 centre, the tenant is not liable to contribute to the landlord's expenses of operating (including repairing and maintaining)-- (a) the building in which the retail premises are situated; or 30 (b) any building in the retail shopping centre; or (c) any common area-- unless-- 28 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 s. 21 Act No. (d) the expenses are specifically referable to particular retail premises in the retail shopping centre; and (e) the retail premises are one of the premises to 5 which the expenses are referable. (2) A tenant under a retail premises lease in a retail shopping centre is not liable under sub-section (1) (d) or (e) to contribute an amount in excess of an amount calculated by multiplying the total amount 10 of those expenses by the ratio of the total floor area of the retail premises to the total of floor areas of all the retail premises to which the expenses are referable. (3) For the purposes of this section an expense is 15 referable to retail premises if the retail premises are one of the retail premises that enjoys or shares the benefit resulting from the expenses. 21. Sharing of operating expenses (1) If in addition to the rent a retail premises lease 20 provides for the tenant to pay all or part of the expenses of the landlord in operating (including repairing and maintaining) the building in which the retail premises are situated and, if those premises are situated in a retail shopping centre, 25 any common area, then-- (a) the lease must specify-- (i) those items of expense which are to be included as operating expenses; and (ii) how those operating expenses will be 30 calculated and apportioned to the tenant; and (iii) how those operating expenses may be recovered by the landlord from the tenant; and 29 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 s. 21 Act No. (b) the landlord must give the tenant annual estimates of each of those items of expense-- (i) at least one month before the beginning 5 of the period to which the estimate relates; or (ii) when the tenant enters into the lease, if that occurs either during the period to which the estimate relates or within one 10 month before the beginning of that period; and (c) the landlord must give the tenant annual statements of expenditure incurred on each of those items of expense within 3 months 15 after the annual period to which the expenditure refers. (2) If the retail premises are situated in a retail shopping centre, the landlord must give the tenant a written annual statement of expenditure on 20 account of any advertising or promotion costs that the tenant is required to pay all or part of under the lease. (3) The landlord must give the statement under sub- section (2) to the tenant within 3 months after the 25 annual period to which the expenditure refers. (4) The landlord must ensure that a statement under sub-section (1) or (2) has been audited by a company auditor and is accompanied by a declaration by that auditor as to whether or not the 30 statement correctly states the expenditure by the landlord during the annual period concerned in respect of the costs that the tenant is required to pay all or part of under the lease. (5) The regulations may-- 30 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 s. 22 Act No. (a) prohibit a landlord from obtaining payment from a tenant (either absolutely or before a specified time) for specified items of expense or specified classes of items of 5 expense; and (b) prescribe the manner in which specified items of expense or specified classes of items of expense may be calculated and apportioned to a tenant. 10 (6) A landlord must not accept payment from a tenant for any particular item of expense of more than the greater of the actual amount or the total estimated amount of that item of expense. (7) If a tenant has paid the landlord more than the 15 actual amount of operating expenses, the landlord must refund to the tenant the amount of the overpayment when the landlord gives the tenant the annual statement that deals with those expenses. 20 22. Consent to assignment or sub-lease (1) If a retail premises lease requires the consent of the landlord to an assignment of the lease or a sub-leasing of the premises, and the tenant has-- (a) requested the landlord in writing to consent 25 to an assignment of the lease or a sub-leasing of the premises; and (b) given the landlord the name and address of the proposed assignee or sub-tenant together with at least two references as to the 30 financial circumstances of the proposed assignee or sub-tenant and at least two references as to the business experience of the proposed assignee or sub-tenant and a copy of the proposed deed of assignment or 35 sub-lease-- 31 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 s. 22 Act No. and the landlord fails to give the tenant notice in writing consenting or withholding consent within 21 days after the tenant has done the things referred to in paragraphs (a) and (b), the landlord 5 is to be taken to have consented. (2) A landlord must not unreasonably withhold consent to an assignment of the lease or a sub- letting of the premises. (3) If under Part 3 it is determined that a landlord has 10 unreasonably withheld consent to an assignment of a lease or a sub-letting of premises, the assignment or sub-letting may be done without that consent. (4) A provision in a retail premises lease is void to the 15 extent that it purports to prevent the assignment of the lease. (5) A provision in a retail premises lease is void to the extent that it imposes unreasonable terms, conditions or requirements as a prerequisite to the 20 granting by the landlord of consent to an assignment of the lease. (6) Section 144 of the Property Law Act 1958 does not apply to or with respect to a retail premises lease to which this Part applies. 25 (7) If a retail premises lease has been assigned, the landlord and the tenant referred to in sub-section (1) continue to be subject to all the rights, liabilities and obligations under that lease subject to any indemnities provided under this Act, the 30 lease or the assignment of the lease. (8) If a tenant referred to in sub-section (1) has assigned a retail premises lease and the lease is renewed after that assignment, the tenant is not 32 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 s. 23 24 Act No. subject to any rights, liabilities or obligations under the renewed lease. 23. Disclosure to assignees (1) A tenant who proposes to assign a retail premises 5 lease may request the landlord in writing to provide a disclosure statement in the form of the Schedule providing information about the matters set out in the Schedule. (2) A landlord who receives a request under sub- 10 section (1) must, within 21 days after receipt of the request, give the tenant-- (a) a copy of the disclosure statement that the landlord gave the tenant relating to the lease; or 15 (b) a copy of a new disclosure statement in the form of the Schedule providing information about the matters set out in the Schedule that is current as at a date within 3 months before the statement is given. 20 (3) A tenant who proposes to assign a retail premises lease must give to the proposed assignee a copy of a disclosure statement received under sub-section (2) within 7 days before the assignment of the retail premises lease. 25 (4) If the assignee of the retail premises lease has not been given a disclosure statement before the assignment, the assignee may withhold payment of the rent until the landlord gives the tenant referred to in sub-section (1) a copy of the 30 disclosure statement and the assignee is not liable to pay rent attributable to the period during which the landlord has not given the tenant a copy of the disclosure statement. 24. Notice of works 33 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 Act No. A retail premises lease is to be taken to provide that the landlord must not commence to carry out any extension or renovation of the retail premises or the retail shopping centre in which the retail 5 premises are situated unless the landlord has notified the tenant in writing of the proposed extension or renovation at least 3 months before it is commenced. 25. Urgent repairs 10 (1) This section only applies to the extent that a retail premises lease provides that the landlord is responsible for ensuring that-- (a) the structure of, or fixtures in, the retail premises; or 15 (b) the appliances, fittings or fixtures provided under the lease by the landlord relating to the gas, electricity, water, drainage or other services-- are maintained in good repair. 20 (2) A tenant may arrange for urgent repairs to be carried out to the structure, appliances, fittings or fixtures referred to in sub-section (1) if-- (a) the tenant has taken reasonable steps to arrange for the landlord or the landlord's 25 agent to immediately carry out the repairs; and (b) the tenant is unable to get the landlord or agent to carry out the repairs. (3) If the tenant carries out the repairs under sub- 30 section (2)-- (a) the tenant must give the landlord 14 days written notice of the repairs carried out and the cost; and 34 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 s. 26 Act No. (b) the landlord is liable to reimburse the tenant for the reasonable cost of the repairs or $5000, whichever is the lesser. (4) In this section "urgent repairs" means the work 5 necessary to repair or remedy a fault or damage in-- (a) the structure of, or fixtures in, the retail premises; or (b) the appliances, fittings or fixtures provided 10 under the lease by the landlord relating to the gas, electricity, water, drainage or other services-- being a fault or damage having or causing a substantial effect on or to the tenant's business at 15 the premises. 26. Compensation by landlord (1) A retail premises lease is to be taken to provide that, if the landlord-- (a) inhibits the access of the tenant to the retail 20 premises in any substantial manner; or (b) except with the consent of the tenant, takes any action (other than action lawfully required by any public statutory authority or government department) that would 25 substantially alter or inhibit the flow of customers to the retail premises; or (c) if the retail premises are situated in a retail shopping centre, causes, or fails to make reasonable efforts to prevent or remove, any 30 disruption to trading within the centre; or (d) fails to have rectified any breakdown of plant or equipment under the landlord's care and maintenance; or 35 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 s. 26 Act No. (e) fails to comply with any requirement of a public statutory authority or government department if it is the landlord's responsibility to do so; or 5 (f) if the retail premises are situated in a retail shopping centre, fails to adequately clean, maintain, repair or repaint any common area-- and the landlord does not rectify the matter within 10 a reasonably practicable time after receiving from the tenant a written notice asking the landlord to do so, then the landlord is liable to pay the tenant, for any loss or damage suffered by the tenant as a consequence, reasonable compensation as agreed 15 in writing between the parties or, in the absence of agreement, determined under Part 3. (2) A retail premises lease is to be taken to provide that-- (a) if the retail premises are situated in a retail 20 shopping centre and the tenant mix or usage mix of the centre at any time during the term of the lease is significantly different from that set out in the disclosure statement; or (b) if the landlord notifies the tenant under 25 section 15(2)(d) that the premises are to be demolished or substantially repaired, renovated or reconstructed and the demolition, repair, renovation or reconstruction is not carried out within a 30 reasonably practicable time after the tenant ceases to occupy the premises; or (c) if the tenant entered into the lease or a renewal of the lease on the basis of a false or misleading statement or misrepresentation 35 made by the landlord or any person acting on the landlord's authority-- 36 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 s. 27 28 Act No. then the landlord is liable to pay the tenant, for any loss or damage suffered by the tenant as a consequence, reasonable compensation as agreed in writing between the parties or, in the absence of 5 agreement, determined under Part 3. (3) The liability of the landlord under sub-section (2)(a) includes liability for loss or damage arising from trade losses suffered by a tenant because of the adverse impact of a change in the tenant mix 10 or usage mix that was not disclosed in the disclosure statement. (4) A landlord is not liable to pay compensation under-- (a) sub-section (1)(d) or (f) to the extent that the 15 tenant has been reimbursed under section 25 for the cost of repairs; or (b) sub-section (2)(a) if the disclosure statement provided that a change to the tenancy mix or usage mix was likely to occur in the future. 20 27. Provisions about chambers of commerce and merchants' associations (1) A provision in a retail premises lease that purports to prevent or restrict the right of the tenant to form or join any tenants' association, chamber of 25 commerce or other similar body is void. (2) A provision in a retail premises lease that purports to require the tenant to join any merchants' association or other similar body is void. 28. Discrimination against members etc. of merchants' 30 associations A landlord under a retail premises lease must not treat or propose to treat a tenant who forms or joins or proposes to form or join a merchants' association less favourably than the landlord treats 35 or would treat a tenant in the same or similar 37 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 s. 30 Act No. circumstances who does not form or join or propose to form or join a merchants' association. 29. Indemnities (1) A provision in a retail premises lease is void to the 5 extent that it purports to indemnify or require the 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. 10 (2) A provision in a retail premises lease is void to the 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 15 person if the tenant would not otherwise be liable 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 20 statutory authority for charges, rates or taxes payable under any Act for the retail premises, except charges for the supply of water by measure in excess of the minimum amount payable for it where those charges relate to a period during 25 which the tenant occupied the retail premises and charges, rates or taxes for which, under the terms of the retail premises lease, the tenant is liable. 30. Relocation If a retail premises lease relating to retail premises 30 that are situated in a retail shopping centre contains a provision that enables the business of the tenant to be relocated within the retail shopping centre, the lease is to be taken to provide that-- 38 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 s. 32 Act No. (a) the tenant's business cannot be required to be relocated unless the landlord has given the tenant at least 3 months written notice of relocation and the notice gives details of any 5 alternative retail premises to be made available to the tenant within the retail shopping centre; and (b) the tenant is entitled to be offered a new lease of the alternative retail premises on the 10 same terms and conditions, excluding rent, as the existing lease except that the term of the new lease is to be for the remainder of the term of the existing lease; and (c) the tenant is entitled to be paid the 15 reasonable costs of the tenant in relocating that are agreed between the landlord and tenant or, in the absence of agreement, as determined under Part 3. 31. Consultation on proposed redevelopment 20 If the landlord of a retail premises lease relating to retail premises that are situated in a retail shopping centre proposes a redevelopment of the retail shopping centre, the landlord must consult any merchants' association of which a tenant 25 under such a lease is a member in relation to that retail shopping centre. 32. Disclosure of tenant's business plan (1) A landlord must not communicate to any person any written information provided by the tenant 30 under section 9 about the tenant's proposed plans for the carrying on of a business on the retail premises except with the written consent of the tenant. 39 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 Act No. (2) Nothing in sub-section (1) prevents a landlord from divulging or communicating information referred to in that sub-section-- (a) to a court, tribunal or conciliator or an 5 arbitrator; or (b) to the landlord's professional advisers; or (c) to any person in compliance with an Act or court order. (3) A landlord who contravenes sub-section (1) is 10 liable to pay the tenant for any loss or damage suffered by the tenant as a consequence of that contravention reasonable compensation as agreed in writing between the parties or, in the absence of agreement, as determined under Part 3. 15 _______________ 40 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 s. 33 Act No. PART 3--DETERMINATION OF DISPUTES AND RELATED TRANSITIONAL PROVISIONS 33. Object of this Part 5 It is the object of this Part to provide for a dispute resolution process with respect to disputes between a landlord and tenant arising under or in relation to a retail premises lease including the necessary transitional arrangements. 10 34. Definitions In this Part-- "arbitrator" means the member of the panel who is appointed under section 40 to arbitrate a dispute; 15 "conciliator" means the member of the panel or other person who is appointed under section 36 to conciliate a dispute; "panel" means the panel of conciliators and arbitrators appointed under section 41; 20 "prescribed person" means the Secretary- General of the Australian Centre for International Commercial Arbitration. 35. Application of this Part (1) This Part applies to any dispute between a 25 landlord and a tenant arising under or in relation to a retail premises lease, other than a claim by the landlord solely for the payment of rent or a dispute that is capable of being determined by a valuer under section 12, 13 or 15. 30 (2) Despite section 4(1), this Part applies to a dispute-- (a) arising under a retail premises lease to which the Retail Tenancies Act 1986 applied; or 41 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 s. 36 Act No. (b) arising under a provision of the Retail Tenancies Act 1986 in relation to a lease to which that Act applied. (3) Subject to Part V of the Commercial Arbitration 5 Act 1984 and section 11(4) of this Act, a dispute to which this Part applies is not justiciable in any court or tribunal. (4) If an arbitrator or conciliator under the Retail Tenancies Act 1986 has been appointed to 10 determine a dispute but the conciliation or arbitration has not been completed before the commencement of this section, the conciliation or arbitration must continue in accordance with the Retail Tenancies Act 1986 as if this Act had not 15 been enacted. (5) A member of the panel of conciliators and arbitrators under section 22D of the Retail Tenancies Act 1986 as in force immediately before the commencement of this section who is 20 then in office becomes a member of the panel of conciliators and arbitrators on that commencement for the balance of his or her term of appointment, subject to the terms and conditions of his or her appointment, but may resign or be removed by the 25 Governor in Council under this Act. 36. Disputes to be referred for conciliation (1) A landlord or tenant or both may give notice of a dispute to which this Part applies in the prescribed form to the prescribed person. 30 (2) As soon as practicable after receiving the notice, the prescribed person must appoint to conciliate the dispute-- (a) a member of the panel or other person nominated by the parties to the dispute; or 42 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 s. 37 Act No. (b) if the parties fail to nominate a person, or cannot agree on a nomination, a member of the panel chosen by the prescribed person. 37. Conduct of conciliation 5 (1) Subject to sub-section (2), the conciliator must commence conciliation as soon as practicable after being appointed to conciliate the dispute. (2) If the conciliator considers that the dispute is unsuitable for conciliation or is unlikely to be 10 resolved by conciliation he or she may advise the prescribed person that conciliation is not appropriate. (3) The procedure for conciliation is at the discretion of the conciliator. 15 (4) Evidence of anything said or done in the course of a conciliation is not admissible in an arbitration or any other proceedings relating to the subject matter of the dispute. 38. Costs of conciliation 20 (1) The fees and expenses of the conciliator are to be borne jointly by the parties to the dispute. (2) The parties to the dispute must bear their own costs of the conciliation. 39. Result of conciliation 25 (1) If the parties reach agreement following conciliation-- (a) a written record of that agreement is to be prepared by the conciliator or the parties; and 30 (b) each party and the conciliator must sign that record; and 43 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 s. 40 Act No. (c) the conciliator must give each party and the prescribed person a copy of the signed record. (2) If-- 5 (a) the parties inform the conciliator in writing that there is no likelihood that they will reach agreement; or (b) the conciliator is satisfied that there is no likelihood that the parties will reach 10 agreement-- the conciliator must advise each party and the prescribed person in writing as soon as practicable that the conciliation has failed to resolve the dispute. 15 40. Arbitration if conciliation fails or is inappropriate (1) As soon as practicable after receiving the conciliator's advice under section 37(2) or 39(2) the prescribed person must appoint a member of the panel (other than the conciliator) to arbitrate 20 the dispute. (2) Subject to sub-section (3) and sections 35(3) and 42, the arbitration must be conducted in accordance with, and subject to the provisions of, the Commercial Arbitration Act 1984. 25 (3) In the arbitration-- (a) in addition to the powers conferred by the Commercial Arbitration Act 1984, the arbitrator has power to make a declaration as to the rights of the parties to the dispute and 30 to grant injunctive relief in any case in which the Supreme Court would have power to make such a declaration or to grant such relief; and 44 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 s. 41 42 Act No. (b) the fees and expenses of the arbitrator are to be borne jointly by the parties to the dispute unless the arbitrator is of the opinion that a party has behaved in a frivolous or vexatious 5 manner, in which case the arbitrator may make such order as to those fees and expenses as he or she thinks just; and (c) the parties to the dispute must bear their own costs unless the arbitrator is of the opinion 10 that a party has behaved in a frivolous or vexatious manner, in which case the arbitrator may make such order as to costs as he or she thinks just. 41. Panel of conciliators and arbitrators 15 (1) The Governor in Council may, on the nomination of the Minister, appoint persons to be members of a panel of conciliators and arbitrators for the purposes of this Act. (2) A member of the panel holds office for the period, 20 not exceeding 5 years, specified in his or her instrument of appointment and is eligible for re- appointment. (3) The Public Sector Management Act 1992 (except Part 9 or in accordance with Part 8) does 25 not apply to a member of the panel in respect of the appointment. (4) The Governor in Council may specify terms and conditions of appointment in the instrument of appointment. 30 (5) The Governor in Council may at any time remove a member of the panel from office. (6) A member of the panel may resign from office in writing signed by him or her and addressed to the Governor in Council. 35 42. Liability of panel members 45 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 Act No. A member of the panel is not personally liable for anything done or omitted to be done by the member in good faith-- (a) in the capacity of conciliator or arbitrator 5 under this Act; or (b) in the reasonable belief that the thing was done or omitted to be done in the capacity of conciliator or arbitrator under this Act. 43. Effect of defect or irregularity in appointment 10 An act, decision or award of a member of the panel is not invalid only because-- (a) of a defect or irregularity in the appointment of the member, either as a member of the panel or as the conciliator or arbitrator in a 15 particular dispute; or (b) of the expiry of the member's term of appointment before the act, decision or award was done or made. _______________ 20 46 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 s. 44 Act No. PART 4--DISCLOSURE STATEMENTS UNDER FRANCHISE ARRANGEMENTS 44. Leases (1) If a landlord proposes to enter into a retail 5 premises lease and the premises are to be used wholly or predominantly for the carrying on of a business by the tenant under a name or mark identifying, commonly associated with, or controlled by the landlord or a person or 10 corporation within the meaning of the Corporations Law connected with the landlord, the landlord must give to the prospective tenant a disclosure statement in the form of Schedule providing information about the matters set out in 15 the Schedule at least 7 days before the prospective tenant enters into the retail premises lease. (2) This section applies despite paragraph (b) of the definition of "retail premises" in section 3(1). 45. Licences 20 If a tenant proposes to grant a licence to a person to use the retail premises or part of the retail premises wholly or predominantly for the carrying on of a business by the prospective licensee under a name or mark identifying, commonly associated 25 with or controlled by the tenant or a person or corporation within the meaning of the Corporations Law connected with the tenant, the tenant must within 7 days before the grant of the licence give to the prospective licensee a copy of 30 a disclosure statement (if any) that the tenant received from the tenant's landlord prior to entering into that retail premises lease. _______________ 47 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 s. 46 Act No. PART 5--GENERAL 46. Service of notices If a notice is required or permitted to be served on any person, the notice may be served in or out of 5 Victoria-- (a) by delivering it personally to the person; or (b) by leaving it at the usual or last known place of residence or business of the person with a person apparently over the age of 16 years 10 and apparently residing at that place or (in the case of a place of business) apparently in charge of or employed at that place; or (c) by sending it by post addressed to the person at the usual or last known place of residence 15 or business of that person; or (d) in any other manner authorised by the retail premises lease or by or under any other Act. 47. Act prevails (1) A provision of a retail premises lease is void if it 20 claims to-- (a) exclude the application of any provision of this Act; or (b) limit the right of a party to the lease to refer any dispute to conciliation or arbitration 25 under Part 3. (2) A provision of a retail premises lease is void insofar as it is contrary to or inconsistent with anything in this Act or with anything that by this Act the lease is taken to provide. 30 48. Supreme Court--limitation of jurisdiction It is the intention of sections 35(3) and 42 to alter or vary section 85 of the Constitution Act 1975. 48 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 s. 49 Act No. 49. Regulations The Governor in Council may make regulations for or with respect to any matter or thing required or permitted by this Act to be prescribed or 5 necessary to be prescribed to give effect to this Act. _______________ 49 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 s. 50 Act No. PART 6--CONSEQUENTIAL AMENDMENTS AND TRANSITIONAL PROVISIONS 50. Retail Tenancies Act 1986 No. 106/1986. The Retail Tenancies Act 1986 is repealed. Reprinted to 14 July 1997. 5 51. Amendment of Shop Trading Reform Act 1996 No. 38/1996. In section 7(3) of the Shop Trading Reform Act 1996, for "Retail Tenancies Act 1986" substitute "Retail Tenancies Reform Act 1998". 10 52. Transitional and savings (1) Despite the repeal of the Retail Tenancies Act 1986, that Act-- (a) continues to apply to a retail premises lease to which it applied immediately before its 15 repeal; and (b) continues to apply to a dispute arising under a retail premises lease to which it applied immediately before its repeal or a dispute arising in relation to such a lease under a 20 provision of that Act that continues to apply by virtue of paragraph (a)-- subject to Part 3 of this Act. (2) A reference in a contract, deed or other document that was in force on 1 January 1995 to a registered 25 valuer is, for the purposes of this Act, unless the parties to the contract, deed or document otherwise agree, a reference to a valuer within the meaning of this Act. (3) Nothing in this section limits the operation of the 30 Interpretation of Legislation Act 1984. __________________ 50 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 Sch. Act No. SCHEDULE Form of Disclosure Statement DISCLOSURE STATEMENT BY THE LANDLORD OF A RETAIL PREMISES LEASE 5 This statement is to be completed by the landlord and should be provided to the tenant along with the Information Booklet about retail tenancies and ( if the proposed retail premises lease or any of its terms is in writing) a copy of the lease or the written terms of the lease at least 7 days prior to signing the lease. The Information Booklet is also available at the Office of the 10 Department of the Minister. NOTE: where there is insufficient space in this form, please attach additional sheets. WARNING The tenant should obtain independent legal and financial advice before 15 entering into a lease The tenant has remedies and may claim compensation under the Retail Tenancies Reform Act 1998 if information in this statement is misleading or false LANDLORD'S DETAILS 20 Landlord Landlord's Address Landlord's Agent Landlord's Agent's Address TENANCY DETAILS 25 Address of premises Shop Number Net floor area in square metres Gross floor area of shopping centre if applicable 51 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 Sch. Act No. Permitted use of premises Whether there are any restrictions on the provision of certain goods or services by the tenant The tenant will have exclusive rights to sell the following goods or services: 5 LEASE Under the Retail Tenancies Reform Act 1998, first time tenants have the right to at least five years tenancy Term of the lease Options to renew the lease 10 The date on which the tenant is required to commence trading The date on which premises will be ready for handover to the tenant RENT The rent payable by the tenant for the term of the lease is-- Period Date on which Adjustment Method Rent Payable review will occur The following party or parties reserve the right to instigate a review of 15 the rent: OUTGOINGS The outgoings payable by the tenant and their amounts are-- Outgoings Estimate Per Annum Air conditioning Ventilation Building intelligence and emergency systems Security Fire protection 52 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 Sch. Act No. Insurance Electricity Water Telephones Gas and oil Lifts and elevators Public address and music Signs Uniforms Child minding Car parking Gardening Cleaning Disposals Land tax Local government rates and charges Repairs and maintenance Contribution to sinking fund Sewerage and drainage rates and charges Management costs Pest Control Audit fees Other charges to be borne by the tenant Note: if the parties agree to a gross rent formula, there is no compulsion to provide a full list of outgoings. The following formula is used to apportion outgoings expenses to the tenant: 53 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 Sch. Act No. PROMOTIONAL AND MARKETING INFORMATION The following table provides a complete breakdown of marketing and promotional expenses to be borne by the tenant-- Promotional and Marketing Expenses Items Estimate Per Annum Item SHOPPING CENTRE DETAILS 5 Name and address of the shopping centre Number of retail shops in the centre Total floor area of shopping centre Parking facilities; number of bays for customers/tenants Facilities and services provided by the landlord 10 Fixtures and fittings provided by the landlord Core trading hours of the shopping centre if applicable The floor plan showing the tenancy mix Projected traffic flows and supporting documentation, if available Merchants' Associations (Attach details of voting rights, contributions, etc) 15 WORK TO BE PERFORMED BY THE TENANT The landlord will require the tenant to perform at the tenant's expense, the following fitouts and any other refurbishments during the term of the lease. Whether the tenant will be required to use trades persons nominated by landlord for fitouts and any other refurbishments to be performed on the 20 premises. PLANS FOR THE CENTRE The following renovations, redevelopments or extensions to the centre are planned by the landlord for the term of the lease. The tenant may be required, at the landlord's request, to relocate during the 25 term of the lease. The landlord will pay for the reasonable costs incurred by the tenant in any relocation. GENERAL DISCLOSURES 54 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 Sch. Act No. The following circumstances affecting, or likely to adversely affect the trading or trading profits of the proposed business have arisen. The tenancy mix or usage mix of the shopping centre will/will not /may change over the term of the lease. 5 ADDITIONAL REPRESENTATIONS The following representations were made by the landlord to the tenant during leasing negotiations. DECLARATION BY TENANT OR TENANT'S AGENT The tenant has/has not obtained independent legal and financial advice 10 before entering into this retail premises lease. I acknowledge that this statement contains all written representations in relation to the proposed lease by the landlord and I am satisfied that all agreements made with the landlord are fully reflected in this disclosure statement. 15 Tenant or Tenant's Agent Address of Tenant or Tenant's Agent Date: DECLARATION BY LANDLORD OR LANDLORD'S AGENT I acknowledge that this statement contains all written representations in 20 relation to the proposed lease by the landlord and I am satisfied that all agreements are fully reflected in this disclosure statement. I have not knowingly withheld information which is likely to have an impact on the tenant's proposed business. Landlord or Landlord's Agent 25 Address of Landlord or Landlord's Agent Date: 55 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 Act No. NOTES By Authority. Government Printer for the State of Victoria. 56 532057B.I1-20/2/98

Retail Tenancies Reform Act 1998 Notes Act No. 57 532057B.I1-20/2/98

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