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1
Retail Shop Leases Amendment
RETAIL SHOP LEASES AMENDMENT
BILL 2000
EXPLANATORY NOTES
GENERAL OUTLINE
Short Title of Bill
Retail Shop Leases Amendment Bill 2000
Objective of the Bill
The objectives of the legislation are to amend the Retail Shop Leases Act
1994 (the Act) to improve its operational efficiency in establishing
mandatory minimum lease standards for retail shop leases; to improve the
level of disclosure between parties entering into a lease; and to minimise the
potential for disputes by managing the expectations of the parties to a lease.
Reasons for the Bill
The Act provides for a full review of the Act to be conducted every five
years. A review was completed in October 1999. As part of the review
process a Working Group consisting of industry representatives, was
convened by the Department of State Development. It provided a formal
mechanism through which key stakeholder representatives provided
consolidated advice to the Department of State Development on review
issues. The Group included key stakeholder representatives from the
Retailers Association of Queensland, the Queensland Retail Traders and
Shopkeepers Association, the Property Council of Australia, the
Queensland Investment Corporation and two independent representatives.
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Retail Shop Leases Amendment
Based upon input from the Working Group and responses received from
industry stakeholders, a Policy Review Paper was prepared detailing the
Government's preferred position on the issues under consideration. The
Policy Review Paper was tabled in Parliament on 16 September 1999 and
subsequently released for a four-week period of public consultation ending
on 15 October 1999.
It was determined as a result of the public consultation process, that
amendments to the Act were necessary.
Alternatives to the Bill
The policy objectives can only be achieved by amendment to the Act.
Administrative Cost
Administrative costs to the government are not expected to increase as a
result of the proposed amendments.
Consistency with Fundamental Legislative Principles
The provisions of the Bill are consistent with the fundamental legislative
principles provided for under the Legislative Standards Act 1992.
Consultation
In November 1998 a Discussion Paper was released to facilitate industry
feedback on potential improvements to the Act and as a platform for
consultation on various aspects of the legislation.
A Working Group consisting of industry representatives, was convened
by the Department of State Development, and met regularly from early
February 1999 until August 1999. The Working Group provided a formal
mechanism through which key stakeholder representatives provided
consolidated advice to the Department of State Development on review
issues. The Group included representatives from the Retailers Association
of Queensland, the Queensland Retail Traders and Shopkeepers
Association, the Property Council of Australia, the Queensland Investment
Corporation and two independent representatives.
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Retail Shop Leases Amendment
As a result of the consultation on the Discussion Paper, and based on
responses received from stakeholders, a Policy Review Paper was prepared
detailing the Government's preferred position on the issues being
considered. The Policy Review Paper was tabled in Parliament on 16
September 1999 and subsequently released for a four-week period of public
consultation ending on 15 October 1999.
The following government departments have been consulted on the
Amendment Bill:
· Department of the Premier and Cabinet
· Queensland Treasury
· Department of Justice and Attorney-General
· Department of Employment, Training and Industrial Relations
· Department of Communication and Information, Local
Government, Planning and Sport
· Department of Mines and Energy
· Department of Natural Resource
NOTES ON CLAUSES
Short title
Clause 1 sets out the short title of the Bill.
Commencement
Clause 2 provides for the Act to commence on a date to be proclaimed.
Act amended
Clause 3 states that the Retail Shop Leases Act 1994 is amended.
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Retail Shop Leases Amendment
Amendment of s 5 (Definitions)
Clause 4 amends section 5.
Sub-clause (1) omits the definitions of "disclosure statement" and
"specific outgoings".
Sub-clause (2) inserts -- a definition for the term "2000 amendment
Act" to make clear that a reference is being made to the Retail Shop Leases
Amendment Act 2000.
· a new definition for the term "disclosure statement" and makes a
reference to part 5 where the term is used.
· a definition for the term "entered into" in relation to when an
assignment is entered into.
· a definition for the new term "GST".
· a definition for the new term "GST Act", which appears in the
definition of "GST", to make clear that a reference is being made
to the Commonwealth's A New Tax System (Goods and Services
Tax) Act 1999.
· a new definition for "specific outgoings" is inserted to clarify that
the "specific outgoings" of the lessor are attributable to the lessee
as a result of the lessee's direct use of the service or facility
incurring the outgoing. A linkage is made to sub-section 24A(2)
of the new section 24A which deals with GST payments, and
extends the meaning of "specific outgoings" to include a GST
amount mentioned in section 24A(2).
· a definition for the new term "tribunal legal member" which is
used in the amended sections 65 and 66
Amendment of s 7 (Meaning of Outgoings)
Clause 5 amends section 7.
Sub-clause (1) inserts a new subsection 7(1)(c) to make a link to the new
section 24A(2) which deals with GST payments. This is to clarify that a
lessee is liable for an amount mentioned in section 24A(2) which deals with
GST amounts to be paid by the lessee to the lessor.
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Retail Shop Leases Amendment
Sub-clause (2) inserts a new section 7(1A) to clarify that an outgoing
mentioned in sub-section (1) may be either an apportionable outgoing or
specific outgoing and that the lessor's outgoings comprise the sum of the
lessor's apportionable outgoings and specific outgoings.
Sub-clause (3) omits examples of sub-section (2)(b) and inserts
examples of sub-section (3)(b) to reflect the change in numbering to be
made in sub-clause (4).
Sub-clause (4) renumbers section 7(1A) and (2) to section 7(2) and (3)
for clarity.
Amendment of s 9 (Meaning of turnover)
Clause 6 amends subsection 9(2)(g) by substituting "taxes" with "taxes,
including GST" to clarify that in calculating the turnover of a business, taxes
including GST, are not to be taken into account. If the GST was included in
calculating turnover it would artificially increase rent in those cases where
the rent is calculated as a percentage of turnover.
Amendment of s 13 (Application of Act to leases - general)
Clause 7 amends section 13.
Sub-clause (1) omits the existing subsection 13(1) and inserts a redrafted
subsection 13(1) to clarify that, subject to subsections 13(2) to (7), the Act
including amendments made by the 2000 amendment Act applies to all
retail shop leases entered into before or after 28 October 1994, the
commencement date of the 1994 Act.
This clause also attaches a footnote to subsection 13(1) referring to the
Acts Interpretation Act 1954, section 14H (References taken to be included
in citation of law) to further clarify that the Act, as amended, applies to all
leases entered into before or after 28 October 1994.
Sub-clause (2) omits the phrase "However, this" and inserts "This" to
improve the logic flow from subsection (1) to (2).
Sub-clause (3) inserts a new subsection (2A) that relocates section 124,
an application provision, to section 13, which deals with this type of
provision. The wording and intent of the relocated section has not been
changed.
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Retail Shop Leases Amendment
A new subsection (2B) is inserted to clarify that subject to subsection (5),
section 27 as amended by the 2000 amendment Act will only apply to a
retail shop lease entered into after the commencement of that Act.
The new subsection (2C) is inserted to make clear that subsection 27(8)
is applicable to retail shop leases entered into after 28 October 1994.
The new subsection (2D) is inserted to make clear that the new division
8A, in Part 6, which deals with unconscionable conduct will only apply to a
retail shop lease entered into after the commencement of the 2000
amendment Act. The intent is to ensure that the unconscionable conduct
provisions are not inadvertently applied retrospectively to retail shop lease
dealings.
Sub-clause (4) omits the word "sections" from subsection 13(3) and
inserts the word "provisions" for accuracy and clarity.
Sub-clause (5) renumbers section 13 for clarity.
Amendment of s 21 (Application of part)
Clause 8 amends section 21.
Sub-clause (1) omits section 21(c), which excludes assigned leases from
disclosure statement requirements. Disclosure requirements are being
extended to include assignment of leases. New sections 22B-22E specify
disclosure requirements between the relevant parties for leases being
assigned.
Sub-clause (2) clarifies that sections 22, 22A and 23 which concern
lessor/lessee disclosure obligations are not applicable to the assignment of a
retail shop lease.
Amendment of s 22 (Lessor to give lease and disclosure statement to
prospective lessee)
Clause 9 amends section 22.
Sub-clause (1) amends the heading of section 22 to "Lessor's disclosure
obligation to prospective lessee". The revised wording of the heading more
accurately describes the subject matter of the section and ties it more
appropriately with the new sections 22A-22C.
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Retail Shop Leases Amendment
Sub-clause (2) amends subsection 22(1) by omitting the definition of
disclosure statement as the definition is now contained in section 5
(Definitions).
Sub-clauses (3) to (5) omit redundant sections and renumbers section 22
for clarity.
Insertion of new ss 22A-22E
Clause 10 inserts new sections 22A-22E.
Section 22A prescribes the disclosure obligations of lessees to lessors
and creates a link to subsection 22(1), which covers lessor's disclosure
obligations.
Section 22B prescribes the disclosure obligations of assignors and
assignees to each other and the time period within which the disclosure
information must be exchanged.
Section 22C prescribes the disclosure obligations of lessors and
assignees to each other and the time period within which the disclosure
information must be exchanged.
Section 22D requires the provision of financial and legal advice
certificates in the approved form by prospective lessees and assignees to
lessors under certain conditions. This will require prospective
lessees/assignees with less than five retail establishments nationally to seek
appropriate financial and legal advice prior to entering into a leasing contract.
The intent of this section is to improve the financial and legal information
base available to small leasing intenders. Access to this information is
expected to result in improved business decision making. This section
provides that only accountants and solicitors with membership and standing
as prescribed may provide the financial and legal advice certificates.
Section 22E prescribes the penalties that will apply if the disclosure
requirements under sections 22A-22D are not complied with. In general,
where the requirements are not complied with, a retail tenancy dispute may
be lodged in the time period prescribed and the tribunal may be asked to
make orders directing the provision of the relevant documents.
Increasing the level of pre-lease information that must be exchanged
between parties to the lease will also serve to actively address the potential
threat of action under the 'unconscionable provisions' (new division 8A)
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Retail Shop Leases Amendment
based on a lack of evidence of disclosure to a weaker party. This risk
provides very clear reasons for those in a leasing relationship to disclose all
relevant information that directly assists the other party's decision-making
processes.
Amendment of s 24 (Lessee's obligations to pay rent and outgoings)
Clause 11 amends section 24.
Sub-clause (1) amends the heading of section 24 to "Lessees obligations
to make particular payments". This wording better reflects the subject matter
of the amended section, and the lessee's obligation to make particular
payments to the lessor.
Sub-clause (2) amends subsection 24(1) to allow the legitimate recovery
of a number of other items in addition to rent, provided that they are
specified in the lease. These items are:
· lessor's outgoings;
· damages for breach of a term of a lease;
· indemnities for loss or damage suffered by the lessor as a result
of actions or omissions of the lessee or a person acting for the
lessee; and
· interest on arrears of rent or outgoings.
The recovery of lessor's outgoings or a specified part of lessor's
outgoings is currently allowed under the Act. Its inclusion in the amended
subsection 24(1) is a logical grouping of recoverable items which are
included as part of this amendment.
Sub-clause (3) inserts a new subsection 24(2A). The purpose of this
subsection is to further clarify that whilst a lessee may be required to pay, if
specified in the lease, interest on arrears of rent or outgoings, the interest rate
or the formula or mechanism for its calculation must also be specified in the
lease.
Sub-clause (4) inserts in section 24(3) an additional qualification for the
operation of section 24(1) and makes reference to a new section 24A which
is inserted to deal with GST payments.
Sub-clause (5) renumbers section 24 for clarity.
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Retail Shop Leases Amendment
Insertion of new section 24A
Clause 12 inserts a new section 24A 'GST payments'.
Section 24A(1) is inserted to make clear that there is nothing in this Act
to prevent a lessor from requiring a lessee to pay a GST amount which
might be attributable either directly or indirectly to GST payable for a supply
made by the lessor to the lessee under the lease.
Section 24A(2) clarifies that where the lease provides for the GST
amount payable by the lessee to the lessor as an outgoings item, then the
GST amount is be treated as a specific outgoing. This is done to ensure that
GST is not treated as an apportionable outgoing to lessees.
Amendment of s 27 (Timing and bases of rent reviews)
Clause 13 amends section 27.
Sub-clauses (1), (3) and (7) renumber section 27 for clarity.
Sub-clause (2) omits the existing section 27(3) and inserts a new section
27(3) to clarify that a rent review may only be undertaken on one of the
bases identified in subsection 27(3). Subsection 27(3)(f) allows two or
more of the methods of rent review listed in subsection 27(3)(b) to (e) to be
used in combination to form one base of rent review. Current market rent
(s.27(3)(a)) of the leased shop is specifically excluded from the basis which
may be used in combination to form a new basis of rent review.
Sub-clause (4) amends subsection 27(5) to change the remedy that may
be applied in circumstances where an invalid 'multiple rent review' is carried
out. Should these circumstances occur, the amendment allows the lessee to
choose which of the methods of rent review will apply. This remedy will
also apply where a provision in a lease for a rent review is void under
section 36 (d) or (e).
Sub-clause (5) inserts a new subsection 27(5A) to clarify that in the
circumstance where a landlord 'grosses-up' the rent for the purpose of
including GST (as required under Commonwealth legislation), then this will
not constitute a rent review. The intent of this new provision is to prevent
the situation arising of a lessee considering such action by the lessor as a
rent review and a breach of the provisions of section 27.
Sub-clause (6) inserts an additional definition of invalid review, linking
section 27 to sections 36(d) and (e).
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Retail Shop Leases Amendment
Amendment of s 30 (Valuer may require information from the lessor)
Clause 14 amends section 30.
Sub-clause (1) requires that if a lessor fails to provide information to the
valuer as required under subsection 30(1), the valuer must give the lessee
notice of the lessor's failure to provide the information within seven days.
This removes the onus for lodging a dispute from the valuer, who is not a
party to the lease, and to more logically place it upon the lessee should the
lessor fail to comply with subsection 30(1).
A new subsection 30(2A) provides that a retail tenancy dispute exists
between the lessor and the lessee when a lessee is given written notice from
a valuer of the lessor's failure to give the valuer the required information to
enable a rent review to be undertaken.
Sub-clause (2) renumbers section 30 for clarity.
Amendment of s 31 (Requirements for determination)
Clause 15 inserts a new subsection 31(2) to clarify that the valuer is to
identify any GST component in determining current market rent. The intent
is to ensure that the Act's treatment of leases with regard to GST is
consistent with the Commonwealth's GST legislation; that it reflects market
valuation practice; and that the rental figure is separated from any GST
component or portion.
Replacement of s 32 (Valuer to give determination to lessor and lessee)
Clause 16 omits the present section 32 and inserts a redrafted section 32
to provide for an additional timeframe, namely that the valuer must give a
determination of current market rent to the lessor and lessee within 1 month
after the lessor provides information to the valuer under section 30.
The redrafted section includes a new provision in section 32(c) to include
the time frame for a valuer to give a determination to the lessor and lessee if
a dispute arises under new subsection 30(2A). In this case, the time frame is
linked to when a lessor provides information to a valuer under a mediation
agreement or tribunal order.
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Retail Shop Leases Amendment
Amendment of s 37 (Requirements when lessee to pay lessor's
outgoings)
Clause 17 amends subsection 37(2)(b) to clarify that estimates of the
lessor's outgoings, which must be provided to lessees under subsection
37(2)(b) do not have to include estimates of "specific outgoings".
Insertion of new s 37A (Lessor's recovery of electricity charges)
Clause 18 inserts a new section 37A to prescribe that where a lessor may
recover electricity charges forming part of a lessor's outgoings and where
the lessee is required to pay, under the terms of a retail shop lease, all or part
of the amount, the lessor's recovery of electricity charges must be only in
the way specified under the Electricity Act 1994.
Amendment of s 41 (Promotion and advertising)
Clause 19 amends subsection 41(1)(b) by attaching an explanatory note
to the provision to clarify that promotion amounts under this section are
subject to the same auditing and accounting requirements as outgoings
under section 37.
Amendment of s 44 (Amount of compensation)
Clause 20 inserts a new subsection 44(1A) to establish a link with
subsection 43(1)(a). It clarifies that if compensation is payable in connection
with the relocation of a lessee's premises, the tribunal may take into account
the period of notice of relocation which was given in determining the
amount of compensation payable.
Amendment of s 46 (Options to renew leases)
Clause 21 provides a head of power to make a regulation prescribing a
specific form that will be used to inform a lessee of a lessor's intention as to
whether a retail shop lease will be renewed.
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Retail Shop Leases Amendment
Insertion of new pt 6, div 8A
Clause 22 inserts a new Part 6 division 8A, which deals with
unconscionable conduct.
Subsections (1) and (2) of new section 46A (Unconscionable conduct)
specifically prohibit a lessor or lessee from engaging in unconscionable
conduct in relation to a retail shop lease.
The community at large associates the term unconscionable conduct with
unfair behaviour. However, the term has specific legal meaning that requires
more than mere 'unfair' conduct in order for the behaviour to be classed as
'unconscionable'.
Unconscionable conduct may be understood as taking advantage of a
party who then does not make an independent and voluntary decision or
who cannot make a judgement as to what is in their best interests. The
provisions for unconscionable conduct prohibit a stronger party dealing with
a disadvantaged party in a harsh or oppressive manner.
Subsection 46A(3) identifies 3 instances where a person is not
considered to have behaved unconscionably. This limitation is inserted to
clarify that instituting legal proceedings with regard to a lease, or taking
action to arbitrate a retail tenancy dispute, or failing or declining to issue or
renew a lease, does not of itself constitute unconscionable conduct. This is
to ensure that normal lease dealings are not interpreted as unconscionable
conduct and thereby unnecessarily involve the leasing parties in a retail
tenancy dispute.
Subsection 46A(4) specifically limits the application of this section to
unconscionable conduct that occurs after this section comes into effect.
A new section 46B (Matters tribunal may consider in deciding if a party's
conduct is unconscionable) is inserted. Section 46B prescribes a range of
matters, which the tribunal may take into account when considering
allegations of unconscionable conduct. Matters that could be taken into
account include the bargaining strengths of the parties; the ability of the
weaker party to understand the lease documentation; and the extent to which
the stronger party was willing to negotiate.
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Retail Shop Leases Amendment
In making its determination the tribunal may take into account
circumstances which may have prevailed before the commencement of
section 46B. The intent of section 46B is to make clear that a tribunal must
not be influenced by circumstances which were not reasonably foreseeable
at the time of the allegation, or by conduct which occurred before the
commencement of section 46A.
In considering the unconscionable conduct provisions it is useful to refer
to the expanded disclosure requirements dealt with in sections 22A-22E.
Increasing the amount of pre-lease information available to the parties to a
lease will minimise the potential for disputes by managing the expectations
of those parties. A higher level of pre-lease disclosure will actively address
the threat of action under the 'unconscionable conduct' provisions.
The wording of sections 46A and 46B are in close alignment with the
unconscionable conduct provisions (s 51AC) of the Trade Practices Act
1974 (Cwlth) and Part 7A of the New South Wales Retail Leases Act 1994.
While the Commonwealth provisions may be accessed by the retail industry
in Queensland, seeking redress via the Federal Court is less accessible in
terms of time and cost when compared with the Retail Shop Lease Tribunal
processes.
Insertion of new s 46C
Clause 23 inserts new section 46C (Relocating lessee's business) to
clarify that where a lessor intends to relocate a lessee's business to other
premises during the term of the lease, the lessor is required to give at least
three (3) months written notice of this intended action and state the premises
to which the lessee is to be relocated. In the event of a breach of this
provision, compensation is determined in accordance with the provisions of
sections 43 and 44 of the Act.
Amendment of s 48 (Lessee's liability for costs associated with
preparation etc. of lease)
Clause 24 amends section 48.
Sub-clause (1) amends subsection 48(1) to clarify that the lessee must
not be required to pay for the lessor's legal costs associated with lease
preparation or with any "upstamping" of a lease. (Lease dealings such as an
extension of a lease or its renewal incur additional stamp duty fees. This
type of activity is commonly referred to as "upstamping").
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Retail Shop Leases Amendment
Sub-clause (2) amends subsection 48(2) to clarify that a lessee may be
required to pay for any combination of the items listed under this section
and that these items are not mutually exclusive.
Sub-clause (3) makes a grammatical correction to the amended section
48 but does not change the intent of the section.
Amendment of s 50 (Retail tenancy disputes about assignments of
leases)
Clause 25 amends the heading of section 50 by inserting the words
"between lessors and lessees" after "disputes" to make clear that the section
deals with retail tenancy disputes between lessors and lessees concerning
assignments of leases. (The new section 22E covers disputes that might
arise between parties to a lease assignment, other than between lessors and
lessees).
Amendment of s 52 (Requirements for resolution)
Clause 26 amends section 52.
Sub-clause (1) inserts a new section 52(da) to clarify that the total
number of voters taking part in a vote on a resolution to change "core
trading hours" must represent a minimum of 50% of the retail shops in the
centre.
Sub-clause (2) amends section 52(e) so that a resolution to change "core
trading hours" within a shopping centre may only be carried with the
support of at least 75% of the eligible lessees who participated in the vote.
Sub-clause (3) renumbers section 52(da) to (f) to section 52(e) to (g) for
ease of understanding and clarity.
Omission of s 65 (Chief executive to refer dispute to tribunal)
Clause 27 omits section 65.
Replacement of s 66 (Chairperson may hold directions hearing)
Clause 28 replaces section 66 with new sections 65 and 66.
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Retail Shop Leases Amendment
New section 65 has the heading, 'Chief executive must refer dispute for
directions hearing'. The section streamlines Retail Shop Leases Registry
procedures to require the chief executive to refer in writing a retail tenancy
dispute within 14 days to a tribunal legal member to hold a directions
hearing. As soon as practicable upon receipt of this notice the tribunal legal
member sets the date and time for the directions hearing and advises the
chief executive of these details. The chief executive is then required to give
reasonable written notice to the parties to the dispute of the date, time and
venue at which the directions hearing is to take place. The tribunal legal
member also has the discretion to determine that a directions hearing is not
required under exceptional circumstances. In this case the tribunal legal
member must advise the chief executive in writing.
The section allows the tribunal legal member the additional discretion of
requiring the notice to the parties to include a requirement regarding
discovery and the disclosure of relevant documents to be made available to
the tribunal legal member and the parties to the dispute prior to the
directions hearing.
New section 66 has the heading, 'Holding directions hearings'.
Subsection 66(1) clarifies that the provisions of 'sub-division 2--Tribunal's
hearing', which describe the conduct of, and procedure at, a tribunal's
hearing of a retail tenancy dispute, apply to the conduct and procedure of
directions hearings and that the tribunal powers at a tribunal hearing also
apply to a directions hearing. Examples are provided to illustrate how these
provisions should be applied to a directions hearing.
The subsection also specifically excludes subsections 71(2) and (3) and
section 74 from application to a directions hearing.
Subsection 66(2) specifies the directions, which the tribunal legal
member may make in connection with the directions hearing.
Subsection 66(3) provides that should the dispute proceed beyond a
directions hearing, the tribunal legal member is to give written notice as
soon as is practicable to the chief executive that a tribunal hearing is
required.
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Retail Shop Leases Amendment
Insertion of new s 66A
Clause 29 inserts a new section 66A (Appointment of tribunal) which
requires the chief executive to appoint, within 14 days of being given notice
under subsection 65(5) or 66(3), a tribunal to hear the dispute. The chief
executive is required to advise of this action in writing to the tribunal
members and the parties to the dispute.
Insertion of new s 70A
Clause 30 inserts a new section 70A (Necessary parties) which will
allow parties to a dispute to make a request to the tribunal to join other
parties to the dispute where this is necessary to appropriately resolve a
dispute.
Amendment of s 83 (Tribunals' orders)
Clause 31 amends section 83.
Sub-clauses (1) and (3) insert a new subsection 83(2A) specifying the
kinds of orders the tribunal may make where a dispute or part of a dispute
involves a finding of unconscionable conduct.
The new subsection restricts the tribunal to making only two kinds of
orders. One that:
· requires the party who engaged in the unconscionable conduct to
pay an amount of money to a particular person; or
· does not require the party who engaged in the unconscionable
conduct to pay any amount to anyone.
The purpose of this restriction is to prevent the tribunal from taking any
other kind of action, such as striking out leases or parts of leases. In cases
where an allegation of unconscionable conduct is not proved, the tribunal
has the discretion to dismiss the dispute.
Sub-clause (3) creates a legislative link between section 83 and new
section 22E to clarify that the tribunal may make an order such as that
identified in new section 22E.
Sub-clause (4) renumbers subsections 83(2A) to (4) to subsections 83(3)
to (5) for ease of understanding and clarity.
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Retail Shop Leases Amendment
Insertion of new s 87A
Clause 32 inserts a new section 87A (Order to state reasons) which
requires the tribunal to provide written reasons for its decisions. Section
87A provides that where an allegation of unconscionable conduct is made in
a dispute, the written reasons must clearly identify the parts of the order that
deal with the allegation.
Amendment of s 88 (Restricted right to question tribunal's hearing
and order)
Clause 33 amends section 88.
Sub-clauses (1) and (2) amend section 88 to confer an additional right to
question a tribunal's order only in relation to an order or that part of an order
that deals with unconscionable conduct. Appeals will be to the Supreme
Court.
Section 88(3) clarifies that all appeals on unconscionable conduct may be
on matters or law and/or fact.
Section 88(4) clarifies that appeals under subsection 88(2) may only be
made with the leave of the Supreme Court where:
· an allegation of unconscionable conduct has not been proved
· an allegation of unconscionable conduct is proved, and the
tribunal makes an order against a party that does not require the
party to pay any amount to the other party
· an allegation of unconscionable conduct is proved, and the
tribunal makes an order against a party that requires the party to
pay an amount less than $50,000 to the other party.
Section 88(5) outlines the circumstances where an appeal under
subsection 88(2) may be made to the Supreme Court `as of right'. This may
occur where an allegation of unconscionable conduct is proved and the
tribunal makes an order against a party requiring the party to pay an amount
of $50,000 or more to the other party.
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Retail Shop Leases Amendment
Amendment of s 91 (Costs)
Clause 34 amends subsection 91(3)(b) to enable a party to a dispute to
make an application for costs on the basis that they or another party were
joined in the dispute. This provision extends grounds for the recovery of
costs in relation to a party being joined to a dispute and is linked to the new
section 70A, which allows a party to be joined to a dispute before the
tribunal.
Amendment of s 94 (Exclusion of other jurisdictions)
Clause 35 inserts a new subsection 94(4) to make it clear that where an
application for an injunction is made to a court in accordance with
subsection 94(2)(c), the proceeding will only stop in the tribunal if the court
grants the injunction and if the order of the court is inconsistent with the
dispute proceeding in the tribunal.
This amendment ensures that applications for injunctions will only halt
tribunal processes if there is good reason for a dispute to be considered by a
court rather than the tribunal.
Amendment of pt 12 (Transitional provisions)
Clause 36 amends part 12 (Transitional provisions)
Sub-clause (1) inserts a new division heading before section 123 to
identify that section 123 relates to transitional provisions for the Retail Shop
Leases Act 1994.
Sub-clause (2) omits section 124 as this provision now appears in section
13 (Application of Act to leases--general). This sub-clause also inserts five
new sections (ss 124 to 128) to explain transitional arrangements for
various leasing interactions which may have commenced under the existing
Act and bridge the time period when the 2000 Amendment Act
commences.
Essentially, the transitional provisions have been drafted to ensure that
the amended provisions under the 2000 Amendment Act are not applied
retrospectively to actions that, under the present Act, may have required
different compliance requirements. These transitional provisions have been
inserted to ensure that a 'change of rules' is not applied to leasing interactions
commenced under the existing Act.
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Retail Shop Leases Amendment
Amendment to omit headings following cross references
Clause 37 implements current legislative drafting practice by omitting
cross-reference headings that occur within a section. The headings will be
inserted as footnotes in accordance with current drafting practice. This
avoids cluttering up a section and makes it easier to read.
© State of Queensland 2000