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This is a Bill, not an Act. For current law, see the Acts databases.
WESTERN AUSTRALIA
LEGISLATIVE ASSEMBLY
(As amended in Committee)
COMMERCIAL TENANCY
(RETAIL SHOPS) AGREEMENTS
AMENDMENT BILL 1997
A BILL FOR
AN ACT to amend the Commercial Tenancy (Retail Shops)
Agreements Act 1985 and for related purposes.
The Parliament of Western Australia enacts as follows:
Short title
1. This Act may be cited as the Commercial Tenancy (Retail
Shops) Agreements Amendment Act 1997.
No. 110 -- 2
Commercial Tenancy (Retail Shops)
cl. 2 Agreements Amendment Bill 1997
Commencement
2. This Act comes into operation on such day as is, or days as
are respectively, fixed by proclamation.
Principal Act
5 3. In this Act, the Commercial Tenancy (Retail Shops)
Agreements Act 1985* is referred to as the principal Act.
[* Reprinted as at 27 September 1991.]
Section 3 amended
4. (1) Section 3 (1) of the principal Act is amended --
10 (a) by deleting the definition of ``accountant'' and
substituting the following definition --
``
``accountant'' means a member of --
(a) The Institute of Chartered
15 Accountants in Australia;
(b) The Australian Society of Certified
Practising Accountants; or
(c) The National Institute of
Accountants;
20 '';
(b) by deleting the definition of ``key-money'' and
substituting the following definition --
``
``key-money'' means --
25 (a) money that is to be paid by, or at the
request or direction of, a tenant; or
2
Commercial Tenancy (Retail Shops)
Agreements Amendment Bill 1997 cl. 4
(b) any benefit that is to be conferred by,
or at the request or direction of, a
tenant,
by way of a premium or something of a like
5 nature in consideration of the granting of,
or agreeing to grant, a lease or the renewal
of a lease or the consenting to an
assignment of a lease or the sub-leasing of
the premises the subject of a lease;
10 '';
(c) in the definition of ``retail shop lease'' by deleting
paragraph (a) and ``or'' at the end of that paragraph
and substituting the following --
``
15 (a) the total retail floor area to which
that lease applies (including, in the case
of a building with 2 or more floor levels,
the area of every floor level or part thereof
to which that lease applies) exceeds
20 1 000 square metres; or
'';
(d) by deleting the definition of ``retail shopping centre''
and substituting the following definition --
``
25 ``retail shopping centre'' means a cluster of
premises --
(a) 5 or more of which are used wholly or
predominantly for the carrying on
of --
30 (i) a business involving the sale of
goods by retail; or
(ii) a specified business; and
3
Commercial Tenancy (Retail Shops)
cl. 4 Agreements Amendment Bill 1997
(b) all of which --
(i) have, or upon being leased
would have, a common head
lessor; or
5 (ii) comprise lots on a single strata
plan under the Strata Titles
Act 1985,
whether the premises are in a single
storey building or a multi-level
10 building;
'';
and
(e) by inserting in the appropriate alphabetical positions
the following definitions --
15 ``
``accounting year'' in relation to a lease, means
the accounting year specified in the lease
or, if not so specified, a financial year;
``management fees'' means fees in respect of
20 costs for or incidental to the collection of
rent or other moneys or the management of
premises including, but not limited to, such
of those costs --
(a) in respect of --
25 (i) management offices;
(ii) plant and equipment;
(iii) staff;
and
(b) as are of a kind prescribed;
4
Commercial Tenancy (Retail Shops)
Agreements Amendment Bill 1997 cl. 4
``retail floor area'', in relation to a retail shop,
means the floor area of the retail shop
designed and available for use for the
carrying on of business in the retail shop;
5 ``total lettable area'', in relation to a retail
shopping centre, means the aggregate of
the retail floor areas of the retail shops (or
areas set aside for retail shops) in the
retail shopping centre;
10 ''.
(2) Section 3 (3) of the principal Act is repealed and the
following subsection is substituted --
``
(3) A reference in this Act to a question arising under a
15 retail shop lease includes a reference to --
(a) a question whether or not a lease exists or has
existed;
(b) a question whether or not a lease is or was a
retail shop lease;
20 (c) a question arising --
(i) in relation to any communication, including
a disclosure statement under section 6,
between the parties to the retail shop lease,
prior to their entry into the retail shop
25 lease, which communication was material
to the terms and conditions of the retail
shop lease; or
(ii) in relation to the retail shop lease under a
provision of this Act;
5
Commercial Tenancy (Retail Shops)
cl. 5 Agreements Amendment Bill 1997
(d) a matter that is in dispute between the landlord
and the tenant under section 12 in relation to --
(i) operating expenses of the landlord under
the retail shop lease generally;
5 (ii) an allocation made under section 12
(1) (b) of the proportion of those operating
expenses; or
(iii) a determination of the relevant proportion
for the purposes of section 12;
10 or
(e) any other matter that is in dispute between the
landlord and the tenant in connection with the
retail shop lease, whether or not that matter is
dealt with by the provisions of the retail shop
15 lease.
''.
Section 6A inserted
5. After section 6 of the principal Act the following section is
inserted --
20 ``
Tenant guide
6A. (1) Where a retail shop lease is entered into and
the retail shop lease does not incorporate a tenant guide in
accordance with subsection (4), the tenant may, in addition
25 to exercising any other right, do either or both of the
following --
(a) within 60 days after the lease was entered into,
give to the landlord written notice of termination
of the lease;
6
Commercial Tenancy (Retail Shops)
Agreements Amendment Bill 1997 cl. 5
(b) apply in writing to the Tribunal for an order that
the landlord pay compensation to the tenant in
respect of pecuniary loss suffered by the tenant
as a result of the failure to incorporate the
5 tenant guide in the retail shop lease in
accordance with subsection (4).
(2) Where the tenant under a retail shop lease gives to
the landlord a notice of termination under subsection (1)
the lease terminates upon the expiry of a period of 14 days
10 after the notice was given.
(3) In addition to exercising the tenant's rights under
subsection (1) (b), the tenant may, after the expiry of the
period referred to in subsection (1) (a), apply in writing to
the Tribunal for an order that the retail shop lease be
15 terminated.
(4) The tenant guide shall be in the prescribed form
and located in the prescribed position in the retail shop
lease.
(5) Where the tenant under a retail shop lease (in this
20 subsection referred to as ``the outgoing tenant'') assigns
the lease to another person (in this subsection referred to as
``the incoming tenant''), nothing in this section gives to
the incoming tenant a right to terminate the lease that the
outgoing tenant would not have had if he or she had
25 continued as the tenant under the lease.
(6) The tenant guide is not required to be included --
(a) on the renewal of a retail shop lease under an
option (including the option arising by reason of
section 13 (1)); or
30 (b) on the assignment of a retail shop lease.
''.
7
Commercial Tenancy (Retail Shops)
cl. 6 Agreements Amendment Bill 1997
Section 10 amended
6. Section 10 (3) of the principal Act is repealed and the
following subsections are substituted --
``
5 (3) A provision in a retail shop lease to the effect that
the landlord may withhold consent to an assignment of the
lease by a tenant unless the tenant or a guarantor of the
tenant, agrees to pay any moneys that are payable under
the lease by the person to whom it is proposed to assign the
10 lease is void.
(4) A provision in a retail shop lease to the effect that
the landlord or a person claiming through the landlord may
recover from the assignor or from a guarantor of the
assignor, any moneys that are payable under the lease by
15 the tenant to whom the lease has been assigned is void.
(5) In this section --
``assignor'' means a tenant who assigns a lease in
accordance with this section;
``guarantor'' means a person who has guaranteed the
20 performance by a tenant of the tenant's
obligations under a retail shop lease or a person
who has indemnified a landlord against any loss
the landlord may incur as a result of the failure
by a tenant to comply with those obligations;
25 ``moneys payable under the lease'' includes moneys
recoverable by action under the lease.
''.
8
Commercial Tenancy (Retail Shops)
Agreements Amendment Bill 1997 cl. 7
Section 11 amended
7. (1) Section 11 (1) of the principal Act is amended by
deleting ``the basis on which or the formula by which'' and
substituting the following --
5 ``
, in respect of each occasion on which the review is to be
made, a single basis on which
''.
(2) Section 11 (2) of the principal Act is repealed and the
10 following subsections are substituted --
``
(2) If a retail shop lease provides for the review during
the currency of the retail shop lease of the amount of rent
payable under the retail shop lease having regard to the
15 market rent of the retail shop concerned --
(a) that market rent shall, for that purpose, be
taken to be the rent obtainable at the time of
that review in a free and open market as if, all
the relevant factors, matters or variables used in
20 proper land valuation practice having been taken
into account, that retail shop were vacant and to
let on similar terms as are contained in the
current retail shop lease;
(b) unless specific provision is made in the retail
25 shop lease for the time at which a review may be
initiated, a party to the retail shop lease may not
more than 3 months before the date on which
that review is to be carried out and not more
than 6 months after that date, initiate the
30 review by notice in writing served on the other
party to the retail shop lease; and
9
Commercial Tenancy (Retail Shops)
cl. 7 Agreements Amendment Bill 1997
(c) a provision in the retail shop lease purporting to
preclude the increase or reduction of that market
rent or to limit the extent to which that market
rent may be increased or reduced is void.
5
(2a) A provision in a retail shop lease purporting to
preclude the tenant from voluntarily disclosing the rent
under the lease is void.
''.
(3) After section 11 (3) of the principal Act the following
10 subsection is inserted --
``
(3a) If the parties to a retail shop lease referred to in
subsection (3) do not agree on the rent payable as a result
of the review concerned, the rent payable immediately
15 before that review shall not be increased or reduced before
the question is resolved or determined under this section,
but nothing in this subsection prevents any increase or
reduction in rent which takes place after that resolution or
determination from being due and payable with effect from
20 the date of that review.
''.
(4) Section 11 (5) of the principal Act is amended by deleting
``resolution'' and substituting the following --
`` determination ''.
25 (5) After section 11 (5) of the principal Act the following
subsections are inserted --
``
(6) In determining a question under subsection (5), the
Registrar shall act according to equity, good conscience and
30 the substantial merits of the case without regard to
technicalities or legal forms, and shall not be bound by the
rules of evidence, but may inform himself or herself on any
matter in such manner as the Registrar thinks fit.
10
Commercial Tenancy (Retail Shops)
Agreements Amendment Bill 1997 cl. 8
(7) For the purpose of determining a question under
subsection (5) the Registrar may require the parties to
furnish to the Registrar such valuations, documents or
other information as the Registrar thinks fit and the parties
5 shall comply with any such requirement.
''.
Section 12 amended
8. (1) Section 12 (1) of the principal Act is repealed and the
following subsections are substituted --
10 ``
(1) If provision is made in a retail shop lease for
payment by the tenant, in addition to rent, of all or any of
the operating expenses of the landlord --
(a) the amount payable by the tenant under the
15 retail shop lease is limited to the items of
operating expenses that the retail shop lease
specifies are to be paid wholly or in part by the
tenant and does not include an amount in
respect of which the retail shop lease does not
20 specify both --
(i) how that amount is to be determined and,
when applicable, apportioned to the tenant;
and
(ii) how and when that amount is to be paid by
25 the tenant;
(b) the proportion of those operating expenses
payable by the tenant under the retail shop lease
shall not be greater than the relevant proportion
without the approval of the Registrar;
11
Commercial Tenancy (Retail Shops)
cl. 8 Agreements Amendment Bill 1997
(c) where --
(i) the premises the subject of the retail shop
lease are adjacent to, or form a cluster
with, one or more other premises which
5 have or, on being leased, would have a
common head lessor and are grouped
together for the purpose of allocating to
each of those premises a portion of
operating expenses; and
10 (ii) any part of the operating expenses is
expenditure incurred as a result of some
only of the premises in the cluster being
open outside the standard trading hours,
the retail shop lease shall be taken to provide
15 that a tenant whose retail shop was not so open
is not required to make any payment of, and the
landlord is not entitled to recover, the
expenditure referred to in subparagraph (ii); and
(d) the retail shop lease shall be taken to provide
20 that --
(i) the tenant is not required to make any
payment of, and the landlord is not entitled
to recover, any such operating expenses in
respect of a year or part of a year until at
25 least one month after the landlord has
given to the tenant annual estimates of
expenditure under each item of operating
expenses in respect of the year; and
(ii) the landlord is required to give to the
30 tenant a written statement in accordance
with subsection (1a) (an ``operating
expenses statement'') that details all
expenditure by the landlord in each
12
Commercial Tenancy (Retail Shops)
Agreements Amendment Bill 1997 cl. 8
accounting period of the landlord during
the term of the lease on account of
operating expenses to which the tenant is
required to contribute.
5 (1a) An operating expenses statement --
(a) is to be given to the tenant within 3 months
after the end of the accounting period to which it
relates;
(b) if the relevant retail shop is in a retail shopping
10 centre, must include a statement of the current
total lettable area of the retail shopping centre
and details of any material change in that total
lettable area during the period to which the
statement relates;
15 (c) is to be prepared in accordance with relevant
principles and disclosure requirements of the
applicable accounting standards made by the
Australian Accounting Standards Board, as in
force from time to time;
20 (d) may be a composite statement (that is, it may
relate to more than one tenant) if each tenant to
which it relates is able to ascertain from the
statement the information required by subsection
(1) (d) (ii) that is relevant to that tenant; and
25 (e) is to be accompanied by a report on the
statement prepared by a registered company
auditor within the meaning of the Corporations
Law which includes a statement by the auditor
as to whether or not the operating expenses
30 statement correctly states expenditure by the
landlord during the accounting period concerned
13
Commercial Tenancy (Retail Shops)
cl. 8 Agreements Amendment Bill 1997
in respect of operating expenses to which the
tenant is required to contribute, and as to
whether or not the total amount of estimated
operating expenses for that period (as shown in
5 the estimate of operating expenses given to the
tenant) exceeded the total actual expenditure by
the landlord in respect of those operating
expenses during that period.
(1b) The landlord shall bear half of the cost of an audit
10 referred to in subsection (1a) (e) and the other half of that
cost shall be borne by --
(a) the tenant to whose premises that audit relates;
or
(b) if there is more than one tenant to whose
15 premises that audit relates, jointly in the
relevant proportions.
(1c) An operating expenses statement is not required to
be accompanied by an auditor's report if the statement does
not relate to any operating expenses other than land tax
20 (unless subsection (1g) applies), water, sewerage and
drainage charges, local government rates and charges or
insurance premiums and it is accompanied by copies of
assessments, invoices, receipts or other proof of payment in
respect of all expenditure by the landlord referred to in
25 subsection (1) (d) (ii).
(1d) If a landlord does not comply with the
requirement referred to in subsection (1) (d) (ii), the tenant
is not obliged to pay, and the landlord is not entitled to
recover, operating expenses from the date of that non-
30 compliance until the landlord complies with that
requirement.
14
Commercial Tenancy (Retail Shops)
Agreements Amendment Bill 1997 cl. 8
(1e) A tenant under a retail shop lease in respect of
premises in a retail shopping centre --
(a) is not liable to contribute towards an operating
expense of the landlord that is not specifically
5 referable to any particular retail shop in the
retail shopping centre unless the shop is one of
the shops to which the operating expense is
referable; and
(b) is not liable to contribute an amount in excess of
10 an amount calculated by multiplying the total
amount of that operating expense by the
proportion that the retail floor area of the shop
bears to the aggregate of the retail floor areas of
all the retail shops in the retail shopping centre
15 to which the operating expense is referable.
(1f) If there is a provision in a retail shop lease in
respect of any premises to the effect that the tenant is
obliged to make a payment to or for the benefit of the
landlord for management fees, the landlord is not entitled
20 to recover, and the tenant is not obliged to make, that
payment.
(1g) If provision is made in a retail shop lease for
payment by the tenant of all or any of the land tax or
metropolitan region improvement tax imposed in relation to
25 the land on which the retail shop is situated it is a term of
that retail shop lease that the tenant shall only be obliged
to pay, and the landlord shall only be able to recover,
whether directly or indirectly, from the tenant in relation to
that land --
30 (a) where the premises the subject of the retail shop
lease comprise the whole of the land, the
notional land tax imposed; and
15
Commercial Tenancy (Retail Shops)
cl. 8 Agreements Amendment Bill 1997
(b) where the premises the subject of the retail shop
lease do not comprise the whole of the land, the
relevant proportion of the notional land tax
imposed.
5 ''.
(2) After section 12 (2) of the principal Act the following
subsection is inserted --
``
(3) In this section and section 12A --
10 ``land tax'' means tax imposed by the Land Tax
Act 1976;
``metropolitan region improvement tax'' means
metropolitan region improvement tax under the
Metropolitan Region Town Planning Scheme
15 Act 1959;
``notional land tax'' means land tax and
metropolitan region improvement tax calculated
on the basis that the land on which the tax is
assessed is the only land of which the landlord is
20 the owner within the meaning of that term in
the Land Tax Assessment Act 1976;
``operating expenses'', in relation to a landlord,
means expenses of the landlord in operating,
repairing or maintaining --
25 (a) a building of which a retail shop the subject
of a retail shop lease to which the landlord
is a party forms the whole or a part; or
(b) if that retail shop is in a retail shopping
centre, the building or buildings of which a
30 retail shop the subject of a retail shop lease
to which the landlord is a party forms the
whole or a part and the common area,
and includes, if a strata titles levy is imposed on
the landlord, that part of the levy which relates
16
Commercial Tenancy (Retail Shops)
Agreements Amendment Bill 1997 cl. 8
to expenses of the landlord in operating,
repairing or maintaining the building or
buildings of which the retail shop forms part or
that building or those buildings and the common
5 area, as the case requires;
``referable'', in relation to an operating expense for a
retail shop, means the retail shop enjoys or
shares the benefit resulting from the operating
expense;
10 ``relevant proportion'', in relation to a retail shop,
means --
(a) where the retail shop is situated in a retail
shopping centre, the proportion that the
retail floor area of the retail shop bears to
15 the total lettable area of the retail shopping
centre at the commencement of the
accounting year; or
(b) where the retail shop is adjacent to, or
forms a cluster with, one or more other
20 premises which have or, on being leased,
would have a common head lessor and are
grouped together for the purpose of
allocating to each of those premises a
portion of an item of operating expenses,
25 the proportion that the retail floor area of
the retail shop bears to the total lettable
area of the premises in the cluster at the
commencement of the accounting year;
``standard trading hours'' means the hours
30 prescribed for the purposes of subsection (1) (c);
``strata titles levy'' means a contribution levied
under section 36 of the Strata Titles Act 1985.
''.
17
Commercial Tenancy (Retail Shops)
cl. 9 Agreements Amendment Bill 1997
Sections 12A, 12B and 12C inserted
9. After section 12 of the principal Act the following sections
are inserted --
``
5 Sinking funds
12A. (1) This section applies if provision is made
in a retail shop lease in respect of premises in a retail
shopping centre for payments to be made by the
tenant into a sinking fund for repairs or maintenance
10 or any similar purpose.
(2) The purpose of the sinking fund is to be
specified in the retail shop lease.
(3) The lease shall be taken to provide that --
(a) the landlord is to, as soon as practicable,
15 pay amounts paid by the tenant for the
credit of the sinking fund into one or more
appropriately designated interest bearing
accounts held by the landlord with a bank
or society in the State;
20 (b) the landlord may only apply amounts
standing to the credit of the sinking fund
and interest earned on the fund for --
(i) the purpose mentioned in
subsection (2);
25 (ii) taxes and imposts payable on the
fund;
(iii) the cost of an audit referred to in
paragraph (c) (iii); and
18
Commercial Tenancy (Retail Shops)
Agreements Amendment Bill 1997 cl. 9
(iv) accounting, legal and other
professional costs reasonably incurred
in the preparation and approval of the
scheme of repayment referred to in
5 paragraph (e);
(c) the landlord is to --
(i) keep full and accurate accounts of all
money received or held by the
landlord in respect of the sinking
10 fund;
(ii) keep the accounts in such manner
that they can be conveniently and
properly audited;
(iii) at the end of each accounting year
15 cause the accounts to be audited by
an auditor who is a registered
company auditor within the meaning
of the Corporations Law; and
(iv) within 3 months after the end of each
20 accounting year deliver a copy of that
report to the tenant;
(d) subject to subsection (5), the landlord is
liable to pay into the sinking fund any
deficiency attributable to the failure by the
25 landlord or any predecessor in title of the
landlord to comply with paragraph (a)
or (b); and
(e) if the retail shopping centre is destroyed,
demolished or ceases to operate the
30 landlord is to --
(i) prepare a scheme of repayment
detailing --
(I) the amount standing to the
credit of the sinking fund
19
Commercial Tenancy (Retail Shops)
cl. 9 Agreements Amendment Bill 1997
(including any interest earned
on the fund);
(II) the relevant proportion of that
amount to which each former
5 tenant is entitled; and
(III) the way in which the landlord
proposes to distribute that
amount based upon the relevant
proportion;
10 and
(ii) submit the scheme of repayment to
the Registrar for approval under
subsection (4).
(4) The Registrar is to examine a scheme of
15 repayment submitted under subsection (3) (e) (ii) and
may approve the scheme or require such amendments
to be made to the scheme as the Registrar thinks fit
and the landlord is to repay to each former tenant the
amount set forth in the scheme of repayment or
20 amended scheme of repayment, as the case requires.
(5) A landlord is only liable for a deficiency under
subsection (3) (d) in respect of a claim for that
deficiency notified to the landlord by the tenant within
a period of 3 years following the receipt by the tenant
25 of the copy of the report of the auditor referred to in
subsection (3) (c) (iv) disclosing the deficiency.
(6) If a landlord does not comply with the
requirement referred to in subsection (3) (c) (iv), the
tenant is not obliged to pay, and the landlord is not
30 entitled to recover, payments to the sinking fund from
the date of that non-compliance until the landlord
complies with that requirement.
20
Commercial Tenancy (Retail Shops)
Agreements Amendment Bill 1997 cl. 9
(7) In this section and in section 12B --
``bank'' means --
(a) a bank as defined in section 5 of
the Banking Act 1959 of the
5 Commonwealth; or
(b) a bank constituted by or under a law
of the State;
``former tenant'' in relation to premises means
the last tenant to carry on business at
10 those premises;
``society'' means a society or foreign society
within the meaning of the Financial
Institutions (Western Australia) Code.
Contribution to other funds and reserves by
15 tenants
12B. (1) This section applies if provision is made
in a retail shop lease in respect of premises in a retail
shopping centre for payments to be made by the
tenant into a fund (other than a fund referred to in
20 section 12A) or a reserve for marketing or promotion
of the retail shopping centre or any similar purpose.
(2) The purpose of the fund or reserve is to be
specified in the retail shop lease.
(3) The lease shall be taken to provide that --
25 (a) the landlord is to, as soon as practicable,
pay amounts paid by the tenant for the
credit of the fund or reserve into one or
more appropriately designated interest
bearing accounts held by the landlord with
30 a bank or society in the State;
21
Commercial Tenancy (Retail Shops)
cl. 9 Agreements Amendment Bill 1997
(b) the landlord may only apply amounts
standing to the credit of the fund or reserve
and interest earned on the fund or reserve
for --
5 (i) the purpose mentioned in
subsection (2);
(ii) taxes and imposts payable on the
fund or reserve;
(iii) the cost of an audit referred to in
10 paragraph (c) (iii); and
(iv) accounting, legal and other
professional costs reasonably incurred
in the preparation and approval of the
scheme of repayment referred to in
15 paragraph (e);
(c) the landlord is to --
(i) keep full and accurate accounts of all
money received or held by the
landlord in respect of the fund or
20 reserve;
(ii) keep the accounts in such manner
that they can be conveniently and
properly audited;
(iii) at the end of each accounting year
25 cause the accounts to be audited by
an auditor who is a registered
company auditor within the meaning
of the Corporations Law; and
(iv) within 3 months after the end of each
30 accounting year deliver a copy of that
report to the tenant;
22
Commercial Tenancy (Retail Shops)
Agreements Amendment Bill 1997 cl. 9
(d) subject to subsection (5), the landlord is
liable to pay into the fund or reserve any
deficiency attributable to the failure by the
landlord or any predecessor in title of the
5 landlord to comply with paragraph (a)
or (b); and
(e) if the retail shopping centre is destroyed,
demolished or ceases to operate the
landlord is to --
10 (i) prepare a scheme of repayment
detailing --
(I) the amount standing to the
credit of the fund or reserve
(including any interest earned
15 on the fund or reserve);
(II) the proportion of that amount to
which each former tenant is
entitled; and
(III) the way in which the landlord
20 proposes to distribute that
amount;
and
(ii) submit the scheme of repayment to
the Registrar for approval under
25 subsection (4).
(4) The Registrar is to examine a scheme of
repayment submitted under subsection (3) (e) (ii) and
may approve the scheme or require such amendments
to be made to the scheme as the Registrar thinks fit
30 and the landlord is to repay to each former tenant the
amount set forth in the scheme of repayment or
amended scheme of repayment, as the case requires.
23
Commercial Tenancy (Retail Shops)
cl. 9 Agreements Amendment Bill 1997
(5) A landlord is only liable for a deficiency under
subsection (3) (d) in respect of a claim for that
deficiency notified to the landlord by the tenant within
a period of 3 years following the receipt by the tenant
5 of the copy of the report of the auditor referred to in
subsection (3) (c) (iv) disclosing the deficiency.
(6) If a landlord does not comply with the
requirement referred to in subsection (3) (c) (iv), the
tenant is not obliged to pay, and the landlord is not
10 entitled to recover, payments to the fund or reserve
from the date of that non-compliance until the
landlord complies with that requirement.
Hours of operation
12C. (1) A provision in a retail shop lease which
15 requires a tenant to open the retail shop the subject of
the lease at specified hours or specified times is void.
(2) Where --
(a) a landlord has refused to renew a retail
shop lease; and
20 (b) the tenant under the retail shop lease
believes that the refusal was because the
tenant did not open the retail shop the
subject of the lease at specified hours or
specified times,
25 the tenant may apply in writing to the Tribunal for an
order that the landlord pay compensation to the
tenant in respect of pecuniary loss suffered by the
tenant as a result of the failure to renew the retail
shop lease.
30 ''.
24
Commercial Tenancy (Retail Shops)
Agreements Amendment Bill 1997 cl. 10
Section 24 amended
10. After section 24 (a) of the principal Act the following
paragraph is inserted --
``
5 (aa) an application by a tenant for an order under
section 6A (1) (b), 6A (3) or 12C (2);
''.
Section 26 amended
11. After section 26 (1a) of the principal Act the following
10 subsection is inserted --
``
(1aa) The Tribunal may, where it considers it
appropriate to do so, make an order terminating a retail
shop lease under section 6A.
15 ''.
Section 30 amended
12. Section 30 of the principal Act is amended --
(a) by inserting after the section designation ``30.'' the
subsection designation ``(1)''; and
20 (b) by inserting the following subsection --
``
(2) Regulations made under subsection (1)
prescribing standard trading hours for the
purposes of section 12 (1) (c) may prescribe those
25 standard trading hours generally or in relation
to --
(a) a specified class or classes of retail
shop;
25
Commercial Tenancy (Retail Shops)
cl. 13 Agreements Amendment Bill 1997
(b) a specified part or parts of the State;
or
(c) a specified time or times of the year.
''.
5 Section 31 amended
13. Section 31 (1) of the principal Act is amended by deleting
``this Act'' where it first occurs and substituting the following --
`` section 3 of the Commercial Tenancy (Retail Shops)
10 Agreements Amendment Act 1997
''.
Saving and transitional
14. (1) In this section --
``existing lease'' in relation to a provision of this Act
15 means a retail shop lease entered into --
(a) before the coming into operation of that
provision; or
(b) pursuant to an option granted in a retail shop
lease entered into before the coming into
20 operation of that provision,
but does not include a retail shop lease to which the
provision does not apply by reason of section 4 of the
principal Act;
``new lease'' in relation to a provision of this Act means a
25 retail shop lease entered into on or after the coming
into operation of that provision and --
(a) includes an extension of the term of a retail shop
lease entered into before the coming into
operation of that provision if the extension is
30 granted on or after the coming into operation of
that provision; but
26
Commercial Tenancy (Retail Shops)
Agreements Amendment Bill 1997 cl. 14
(b) does not include a retail shop lease so entered
into pursuant to an option granted in a retail
shop lease entered into before the coming into
operation of that provision;
5 ``retail shop lease'' has the same meaning as it has in the
principal Act.
(2) Subject to subsection (3), the principal Act as amended
by a provision of this Act applies only to and in relation to a new
lease and the principal Act applies to and in relation to an
10 existing lease as if that provision had not been enacted.
(3) Each of --
(a) section 3 (1) of the principal Act as amended by
section 4 (1) (a) of this Act, only in relation to the
insertion of the definition of ``accountant'';
15 (b) section 3 (3) of the principal Act as inserted by
section 4 (2) of this Act;
(c) section 11 (3a) of the principal Act as inserted by
section 7 (3) of this Act;
(d) section 11 (5) of the principal Act as amended by
20 section 7 (4) of this Act; and
(e) section 11 (6) and (7) of the principal Act as inserted
by section 7 (5) of this Act,
applies to and in relation to an existing lease and a new lease.
(4) This section applies despite an agreement to the contrary
25 between the parties to a retail shop lease whether or not the
agreement is contained in the retail shop lease.
27
Commercial Tenancy (Retail Shops)
cl. 14 Agreements Amendment Bill 1997
(5) This section does not affect the operation of section 22 (1)
of the Commercial Tenancy (Retail Shops) Agreements
Amendment Act 1990.
28
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