RETAIL LEASES ACT 2003 - SECT 33 Rent based on turnover

RETAIL LEASES ACT 2003 - SECT 33

    (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.

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 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 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 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

              (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 statement relates.

    (3)     A tenant who gives the landlord statements for a period in accordance with subsection (2) satisfies any obligation under the lease to provide turnover figures or statements for that period.

    (4)     For the purposes of subsections (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—

        (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 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 written off by 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 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 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 point of sale or hire;

        (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 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 fixtures and fittings of the tenant from the premises;

S. 33(4)(k) amended by No. 114/2003 s. 12.1.3

(Sch. 6 item 11).

        (k)     money received for entries in any public lottery within the meaning of the Gambling Regulation Act 2003 , 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 turnover.