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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Commercial Tenancy (Retail Shops)
Amendment Bill 2009
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
Part 2 -- Amendments to the
Commercial Tenancy (Retail
Shops) Agreements Act 1985
3. Act amended 3
4. Section 3 amended 3
5. Section 7 replaced 3
7. Rent based on turnover 3
6. Section 8 amended 4
7. Section 11 amended 5
8. Section 12C replaced 5
12C. Hours of operation 5
9. Section 13B replaced 7
13B. Notice to tenant of landlord's intentions at
end of lease 7
10. Section 13C inserted 8
13C. Negotiations for renewal or extension of
lease 8
11. Section 14A inserted 9
14A. Commissioner for Small Business to be
notified of lease 9
12. Part IIB heading and sections 15G, 15H, 15I and
15J inserted 10
Part IIB -- Commissoner for Small Business
15G. Functions of Commissioner for Small
Business 10
081 -- 1 page i
Commercial Tenancy (Retail Shops) Amendment Bill 2009
Contents
15H. Commissioner may decline to take further
action 13
15I. References to the Tribunal 13
15J. Reference to Tribunal at requirement of
referring party or parties 15
page ii
Western Australia
LEGISLATIVE ASSEMBLY
(Introduced by Hon Fran Logan, MLA)
Commercial Tenancy (Retail Shops)
Amendment Bill 2009
A Bill for
An Act to amend the Commercial Tenancy (Retail Shops) Agreements
Act 1985 to supplement the rights of tenants and enhance the
effectiveness of the Act.
The Parliament of Western Australia enacts as follows:
page 1
Commercial Tenancy (Retail Shops) Amendment Bill 2009
Part 1 Preliminary
s. 1
1 Part 1 -- Preliminary
2 1. Short title
3 This Act is the Commercial Tenancy (Retail Shops) Amendment
4 Act 2009.
5 2. Commencement
6 This Act comes into operation as follows --
7 (a) sections 1 and 2 -- on the day on which this Act
8 receives the Royal Assent;
9 (b) the rest of the Act -- on the day fixed by proclamation.
page 2
Commercial Tenancy (Retail Shops) Amendment Bill 2009
Amendments to the Commercial Tenancy (Retail Shops) Part 2
Agreements Act 1985
s. 3
1 Part 2 -- Amendments to the Commercial Tenancy
2 (Retail Shops) Agreements Act 1985
3 3. Act amended
4 This Part amends the Commercial Tenancy (Retail Shops)
5 Agreements Act 1985.
6 4. Section 3 amended
7 In section 3 (1) insert in alphabetical order:
8
9 Commissioner means the person designated as the
10 Commissioner by notice published in the Gazette by the
11 Minister under section 15 of the Consumer Affairs Act 1971;
12 Commissioner for Small Business is the title specified by the
13 Minister, by notice in the Gazette, by which the Commissioner
14 is to be referred when performing functions under this Act;
15
16 5. Section 7 replaced
17 Delete section 7 and insert:
18
19 7. Rent based on turnover
20 (1) Subject to this section, where a retail shop lease
21 contains a provision to the effect that the rent is to be
22 determined either in whole or in part by reference to
23 the turnover of the business, the provision is void.
24 (2) Subject to this section, it is an offence for a landlord
25 to --
26 (a) enter into a retail shop lease containing a
27 provision of the kind referred to in
28 subsection (1); or
page 3
Commercial Tenancy (Retail Shops) Amendment Bill 2009
Part 2 Amendments to the Commercial Tenancy (Retail Shops)
Agreements Act 1985
s. 6
1 (b) use the turnover of the business for the purpose
2 of determining rent.
3 Penalty: Not less than $10,000 and not more than
4 $100,000.
5 (3) Notwithstanding subsections (1) and (2) above, rent
6 may be determined either in whole or in part by
7 reference to the turnover of the business where --
8 (a) a tenant gave notice in writing to a landlord that
9 the tenant agreed and elected that the rent
10 should be determined, either in whole or in
11 part, by reference to the turnover of the
12 business; and
13 (b) that notice was given to the landlord before a
14 provision of the kind referred to in
15 subsection (1) was included in the lease.
16
17 6. Section 8 amended
18 (1) In section 8 (1) --
19 (a) delete "generally" from the heading; and
20 (b) delete all words after "void".
21 (2) Delete section 8 (2) and insert:
22
23 (2) It is an offence for a landlord to --
24 (a) enter into a retail shop lease containing a
25 provision of the kind referred to in
26 subsection (1); or
27 (b) require a tenant to furnish figures or statements
28 relating to the turnover of the business.
29 Penalty: Not less than $10,000 and not more than
30 $100,000.
31
page 4
Commercial Tenancy (Retail Shops) Amendment Bill 2009
Amendments to the Commercial Tenancy (Retail Shops) Part 2
Agreements Act 1985
s. 7
1 (3) After section 8(2), insert:
2
3 (3) Nothing in this section prevents a tenant from
4 voluntarily furnishing figures or statements relating to
5 the turnover of the business to a landlord.
6
7 7. Section 11 amended
8 In section 11(5) --
9 (a) delete "where --" and insert a full stop;
10 (b) delete paragraphs (a) and (b); and
11 (c) delete "but otherwise such a question shall not be
12 referred to the Tribunal.".
13 8. Section 12C replaced
14 Delete section 12C and insert:
15
16 12C. Hours of operation
17 (1) A provision in a retail shop lease which requires a
18 tenant to --
19 (a) open the retail shop the subject of the lease at
20 specified hours or specified times; or
21 (b) pay outgoings in respect of any time during
22 which the retail shop is not open for business,
23 is void.
24 (2) Where a landlord has requested or has otherwise
25 engaged in conduct to induce a tenant to --
26 (a) open the retail shop the subject of the retail
27 shop lease at specified hours or specified times;
28 or
page 5
Commercial Tenancy (Retail Shops) Amendment Bill 2009
Part 2 Amendments to the Commercial Tenancy (Retail Shops)
Agreements Act 1985
s. 8
1 (b) renew a retail shop lease containing a provision
2 that requires the tenant to --
3 (i) open the retail shop the subject of the
4 retail shop lease at specified hours or
5 specified times; or
6 (ii) pay outgoings in respect of any time
7 during which the retail shop was not
8 open for business,
9 the tenant may refer the matter to the
10 Commissioner for Small Business.
11 (3) Where --
12 (a) a landlord has refused to renew a retail shop
13 lease; and
14 (b) the tenant under the retail shop lease believes
15 that the refusal was because the tenant did
16 not --
17 (i) open the retail shop the subject of the
18 lease at specified hours or specified
19 times; or
20 (ii) pay outgoings in respect of any time
21 during which the retail shop was not
22 open for business,
23 the tenant may apply in writing to the Tribunal
24 for an order that the landlord pay compensation
25 to the tenant in respect of the pecuniary loss
26 suffered by the tenant as a result of the failure
27 to renew the retail shop lease.
28
page 6
Commercial Tenancy (Retail Shops) Amendment Bill 2009
Amendments to the Commercial Tenancy (Retail Shops) Part 2
Agreements Act 1985
s. 9
1 9. Section 13B replaced
2 Delete section 13B and insert:
3
4 13B. Notice to tenant of landlord's intentions at end of
5 lease
6 (1) Not less than 3 months and not more than 12 months
7 before the expiry of a lease, the landlord must by
8 written notification to the tenant either --
9 (a) offer the tenant a renewal or extension of the
10 lease on the proposed terms and conditions
11 specified in the notification (including terms as
12 to rent); or
13 (b) inform the tenant that the landlord does not
14 propose to offer the tenant a renewal or
15 extension of the lease.
16 (2) An offer made for the purposes of subsection (1)(a) is
17 not capable of revocation for 1 month after it is made.
18 (3) If the landlord fails to give a notification to the tenant
19 as required by this section, the term of the lease is
20 extended until the end of 3 months after the landlord
21 gives the notification required by this section, but only
22 if the tenant requests that extension by notice in writing
23 to the landlord given before the lease would otherwise
24 have expired.
25 (4) A landlord is bound by an offer made by him under
26 subsection (1) to renew or further renew the lease if the
27 tenant, within 30 days after receiving the offer, gives to
28 the landlord notice in writing of acceptance of the offer
29 on the terms and conditions proposed by the landlord.
30 (5) A proposal as to rent to be charged which is submitted
31 to the tenant after he has been given notification under
page 7
Commercial Tenancy (Retail Shops) Amendment Bill 2009
Part 2 Amendments to the Commercial Tenancy (Retail Shops)
Agreements Act 1985
s. 10
1 subsection (1) is to be taken to be an offer for the
2 purposes of subsection (4).
3 (6) During any extension of the lease under subsection (3),
4 the tenant may terminate the lease by giving not less
5 than 1 month's notice of termination in writing to the
6 landlord.
7 (7) This section does not apply to a lease containing an
8 option to renew or extend the lease or that is the subject
9 of an agreement for the renewal or extension of the
10 lease.
11
12 10. Section 13C inserted
13 After section 13B insert:
14
15 13C. Negotiations for renewal or extension of lease
16 (1) A landlord of a retail shop must not, by written or
17 broadcast advertisement, indicate the availability of the
18 shop for lease or invite tenders or expressions of
19 interest for tendering, during the term of the lease,
20 unless --
21 (a) the landlord has offered the tenant a renewal or
22 extension of the lease under section 13B(1)(a),
23 the offer has not been accepted and (not earlier
24 than one month after the offer was made) the
25 landlord by written notice informs the tenant
26 that negotiations are concluded without result;
27 or
28 (b) the landlord by written notice informs the
29 tenant that the landlord does not propose to
30 offer the tenant a renewal or extension of the
31 lease and there are no arrangements to allow
32 the tenant to remain in possession of the shop;
33 or
page 8
Commercial Tenancy (Retail Shops) Amendment Bill 2009
Amendments to the Commercial Tenancy (Retail Shops) Part 2
Agreements Act 1985
s. 11
1 (c)the tenant by written notice informs the
2 landlord that the tenant does not wish to enter
3 into negotiations for the renewal or extension of
4 the lease or that the tenant wishes to withdraw
5 from the negotiations; or
6 (d) the tenant has vacated or agrees in writing to
7 vacate the shop; or
8 (e) the tenant consents in writing to publication of
9 the advertisement.
10 Maximum penalty: $1,000.
11 (2) This section does not affect the industry practice of
12 testing the market, otherwise than by written or
13 broadcast advertisement, in connection with the leasing
14 of a retail shop.
15
16 11. Section 14A inserted
17 After section 14 insert:
18
19 14A. Commissioner for Small Business to be notified of
20 lease
21 (1) Within 14 days (or such other period as is agreed
22 between the landlord and the Commissioner for Small
23 Business) after a retail premises lease is signed by all
24 of the parties to it, the landlord must notify (in writing)
25 the Commissioner for Small Business of --
26 (a) the address of the retail premises; and
27 (b) the landlord's name and address (and, if the
28 landlord is not a natural person, the name and
29 address of a person who can be contacted about
30 the lease); and
31 (c) the tenant's name and address; and
page 9
Commercial Tenancy (Retail Shops) Amendment Bill 2009
Part 2 Amendments to the Commercial Tenancy (Retail Shops)
Agreements Act 1985
s. 12
1 (d) the rental value of the leased area on a cost per
2 square metre basis; and
3 (e) such other matters (if any) as are prescribed by
4 the regulations.
5 Penalty: $1,000.
6 (2) Subject to the exclusion of items (b) and (c), the
7 information referred to in subclause (1) of this clause is
8 to be made available to the public.
9
10 12. Part IIB heading and sections 15G, 15H, 15I and 15J
11 inserted
12 After section 15F insert:
13
14 Part IIB -- Commissoner for Small Business
15 15G. Functions of Commissioner for Small Business
16 (1) The Minister is required, by notice published in the
17 Gazette pursuant to section 15(2) of the Consumer
18 Affairs Act 1971, to specify that the Commissioner for
19 Small Business is the title by which the Commissioner
20 is to be referred when performing functions under this
21 Act.
22 (2) The Commissioner for Small Business has the
23 following functions under this Act --
24 (a) to make arrangements to facilitate the
25 resolution by mediation, or by another
26 appropriate form of alternative dispute
27 resolution, of retail tenancy disputes (whether
28 or not a dispute has been formally referred
29 under this Act to the Commissioner for Small
30 Business);
page 10
Commercial Tenancy (Retail Shops) Amendment Bill 2009
Amendments to the Commercial Tenancy (Retail Shops) Part 2
Agreements Act 1985
s. 12
1 (b) to take proceedings for an offence against this
2 Act;
3 (c) to report to the Minister on the operation of this
4 Act;
5 (d) to authorise, if the Commissioner for Small
6 Business considers it appropriate to do so, a
7 body to represent that the form of a standard
8 lease that the body is to make available to the
9 public (whether or not for a fee) is endorsed by
10 the Commissioner for Small Business;
11 (e) to prepare and publish an information booklet
12 or guidelines about retail leases that may be
13 purchased on demand by members of the
14 public;
15 (f) to create and maintain a register of the
16 information provided under section 14A;
17 (g) such other functions as may be conferred or
18 imposed on the Commissioner for Small
19 Business by or under this Act.
20 (3) For the purposes of eliminating conduct contrary to this
21 Act in relation to retail shop leases, the Commissioner
22 for Small Business may --
23 (a) carry out investigations, research and inquiries
24 relating to the conduct of parties to retail shop
25 leases who are subject to this Act;
26 (b) acquire and disseminate knowledge on all
27 matters relating to retail shop leases;
28 (c) arrange and coordinate consultations, inquiries,
29 discussions, seminars and conferences;
30 (d) review, from time to time, the laws of the State;
31 (e) consult with governmental, business, industrial
32 and community groups in order to ascertain
33 means of improving services and conditions
page 11
Commercial Tenancy (Retail Shops) Amendment Bill 2009
Part 2 Amendments to the Commercial Tenancy (Retail Shops)
Agreements Act 1985
s. 12
1 affecting persons who are parties to retail shop
2 leases;
3 (f) develop programmes and policies promoting
4 the achievement of compliance with this Act by
5 parties to retail shop leases;
6 (g) publish any written reports compiled in the
7 exercise of the powers conferred on the
8 Commissioner for Small Business by this
9 section.
10 (4) In arranging for the resolution of retail tenancy
11 disputes, the Commissioner for Small Business is to
12 have regard to the need for the mediation or other form
13 of alternative dispute resolution to be conducted by
14 persons who are experienced in the field of retail shops
15 leases.
16 (5) The Commissioner for Small Business may himself or
17 herself conduct a mediation or other form of non-
18 binding alternative dispute resolution in relation to a
19 matter arising between parties to a retail shop lease
20 which is subject to this Act.
21 (6) Where the parties agree to submit to a binding
22 arbitration, the Commissioner for Small Business may
23 himself or herself conduct the arbitration, and the
24 procedure to be adopted for the purpose of conducting
25 the arbitration is to be agreed between the parties.
26 (7) The Commissioner for Small Business is entitled to be
27 paid his or her fees and expenses for conducting
28 alternative dispute resolution in accordance with
29 subclauses (4) and (5), which must not be more than
30 the maximum amount (if any) prescribed by the
31 regulations.
32 (8) The Commissioner for Small Business may charge a
33 fee for giving an authorisation under subsection (1)(d),
page 12
Commercial Tenancy (Retail Shops) Amendment Bill 2009
Amendments to the Commercial Tenancy (Retail Shops) Part 2
Agreements Act 1985
s. 12
1 which must not be more than the maximum fee (if any)
2 prescribed by the regulations.
3 (9) The Commissioner for Small Business is not subject to
4 the Minister's control or direction in exercising
5 functions under subsection (2)(a) or (b) and
6 subsection (3).
7 15H. Commissioner may decline to take further action
8 (1) Where, at any stage after the referral of a matter by a
9 party or parties to a retail shop lease, the Commissioner
10 for Small Business is satisfied that the referral is
11 frivolous, vexatious, misconceived, lacking in
12 substance or relates to an act that is not unlawful by
13 reason of a provision of this Act, the Commissioner for
14 Small Business may, by notice in writing addressed to
15 the party or parties referring the matter, decline to take
16 any further action in relation to the referral.
17 (2) The Commissioner for Small Business shall, in a notice
18 under subsection (1), advise of --
19 (a) the reason for declining to take any further
20 action; and
21 (b) the rights of the party or parties under
22 section 15J.
23 15I. References to the Tribunal
24 (1) Where the Commissioner for Small Business has
25 conducted mediation or any other form of non-binding
26 alternative dispute resolution in accordance with
27 section 15G(4), and the Commissioner for Small
28 Business --
29 (a) is of the opinion that the matter cannot be
30 resolved by mediation or any other form of
31 non-binding alternative dispute resolution;
page 13
Commercial Tenancy (Retail Shops) Amendment Bill 2009
Part 2 Amendments to the Commercial Tenancy (Retail Shops)
Agreements Act 1985
s. 12
1 (b) has endeavoured to resolve a matter by
2 mediation or any other form of non-binding
3 alternative dispute resolution;
4 (c) is of the opinion that the nature of a matter is
5 such that it should be referred to the Tribunal;
6 or
7 (d) is satisfied that either party has not acted in
8 good faith to resolve the matter in dispute,
9 the Commissioner for Small Business shall refer the
10 matter to the Tribunal together with a report by the
11 Commissioner for Small Business relating to the
12 matter.
13 (2) When a matter is referred to the Tribunal under
14 subsection (1), the Commissioner for Small
15 Business --
16 (a) shall, if the party or parties referring the matter
17 requests the Commissioner for Small Business
18 to do so, either personally or by counsel or
19 representative assist the party in the
20 presentation of the case of the party to the
21 Tribunal; and
22 (b) may, if the party or parties referring the matter
23 requests the Commissioner for Small Business
24 to do so and the Commissioner considers it
25 appropriate in all circumstances (including the
26 financial circumstances of the party) to do so,
27 make such contribution towards the cost of
28 witness and other expenses as is necessary to
29 enable the party to call or give, or to call and
30 give, evidence before the Tribunal.
31 (3) The Commissioner for Small Business may, in making
32 a contribution under subsection (2)(b), make the
33 contribution subject to such conditions as the
34 Commissioner for Small Business thinks fit.
page 14
Commercial Tenancy (Retail Shops) Amendment Bill 2009
Amendments to the Commercial Tenancy (Retail Shops) Part 2
Agreements Act 1985
s. 12
1 (4) If a condition to which the making of a contribution is
2 subjected under subsection (3) requires the party to
3 repay to the Commissioner for Small Business in
4 circumstances specified in that condition the whole or
5 any part of the contribution made under subsection
6 (2)(b) and those circumstances arise, the Commissioner
7 for Small Business may recover that whole or part from
8 the party by action in a court of competent jurisdiction
9 as a debt due to the Commissioner.
10 (5) Evidence of anything said or done in the course of non-
11 binding alternative dispute resolution proceedings shall
12 not be admissible in subsequent proceedings before the
13 Tribunal.
14 15J. Reference to Tribunal at requirement of referring
15 party or parties
16 (1) Where the Commissioner for Small Business has given
17 a notice under section 15H, the party or parties
18 referring the matter to the Commissioner for Small
19 Business may, within 21 days after the receipt of that
20 notice, by notice in writing served on the
21 Commissioner for Small Business, require the
22 Commissioner for Small Business to refer the matter to
23 the Tribunal.
24 (2) On receipt of a notice under subsection (1), the
25 Commissioner for Small Business shall refer the matter
26 to the Tribunal together with a report relating to the
27 matter, including the grounds for the Commissioner for
28 Small Business declining to take any further action.
29
30
page 15
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