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Retail Shop Leases Amendment Bill 2014
Retail Shop Leases Amendment Bill 2014
Explanatory Notes
Short title
Retail Shop Leases Amendment Bill 2014
Policy objectives and the reasons for them
The Bill gives effect to outcomes from the statutory review of the Retail Shop Leases
Act 1994 (the Act).
The Act provides a framework for addressing imbalance in negotiating power and
access to information between major shopping centre landlords and small retail tenants
through mandatory minimum standards for retail shop leases and a low cost dispute
resolution process for retail tenancy disputes.
In accordance with section 122 of the Act, a statutory review of the operation of the Act
has been conducted to decide whether the Act's provisions remain appropriate for the
Queensland retail sector.
The review included considerable stakeholder consultation, including public
consultation through the release of a discussion paper in late 2011 and an options paper
in May 2013.
In June 2013, a reference group was established comprising key retail sector and
professional stakeholders to consider the options paper and submissions, and make
recommendations to assist the Government in deciding the outcomes of the review.
The reference group was tasked with identifying areas of stakeholder consensus,
difference and compromise. The group also provided industry and technical input,
including from the perspective of retail businesses operating in Queensland and
nationally.
The reference group comprised representatives from the National Retail Association,
the Australian Retailers Association, the Australian Property Institute, Lease 1, the
Property Council of Australia (Qld), the Shopping Centre Council of Australia, the
Queensland Newsagents Federation, the Pharmacy Guild of Australia (Qld), the
Queensland Law Society, the Large Law Firm Group and the Chamber of Commerce
& Industry Queensland.
Key objectives of the review were to identify opportunities to: improve the Act's
efficiency and effectiveness; reduce red tape and compliance costs for retail lessees and
lessors; continue to address imbalance in access to information and negotiating power,
without unduly interfering with commercial arrangements or outcomes; and align with
key eastern seaboard States, where appropriate, to enhance operational efficiency and
legal certainty for stakeholders operating across jurisdictions.
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Retail Shop Leases Amendment Bill 2014
Key guiding considerations for the reference group were: the need for balance between
safeguarding retail tenant interests, while ensuring that government regulation does not
unnecessarily interfere with commercial arrangements; and identifying opportunities
for reducing the regulatory and compliance burden on business. The group also
considered alternatives to regulation, including leaving matters to commercial
negotiation and education or industry-driven initiatives, where appropriate.
The reference group had regard to key findings and recommendations in the
Productivity Commission 2008 Report The Market for Retail Tenancy Leases in
Australia. These included that States and Territories should introduce greater self-
regulation in the retail tenancies market; remove unnecessarily prescriptive elements of
retail tenancy legislation that unduly restrict commercial negotiations; and move
towards a more consistent national framework for regulation of retail tenancies.
The reference group's final report detailing the recommendations and outcomes of the
reference group process was completed in December 2013.
The Bill provides for the amendments to the Act resulting from the statutory review.
The amendments reduce the regulatory burden for the Queensland retail sector, while
continuing to safeguard the interests of retail lessees. Some proposed amendments
would align with the position in other States to enhance operational efficiency and
legal certainty for lessors and lessees operating across those jurisdictions.
In these explanatory notes, the terms lessor and lessee from the Act are used in place
of landlord and tenant, respectively.
Achievement of policy objectives
The Bill provides for a range of amendments:
excluding certain leases from the operation of the Act where its application
cannot be justified;
clarifying the application of the disclosure provisions in Part 5 of the Act for
key lease categories;
enhancing protection for lessees, including prospective purchasers of retail
businesses and the unconditional release from liability for assignors and their
guarantors on assignment of lease;
providing for exclusions from lessor's liability for compensation to the lessee
for business disruption in certain circumstances;
providing for liability as to certain legal costs related to a retail shop lease; and
simplifying procedural requirements and clarifying the operation of various
provisions.
Significant amendments included in the Bill are described below.
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Retail Shop Leases Amendment Bill 2014
Leases excluded from operation of Act
The definition of retail shop lease under the Act provides that 1000m2 plus retail
tenancies are excluded under the Act only if the lessee is a listed corporation or
a listed corporation's subsidiary. The Bill extends this exclusion to all leases
with a floor area greater than 1000m2 on the basis that these lessees are
predominantly sophisticated businesses not requiring the protection of the Act.
The Bill excludes from a retail shopping centre: premises on a level of a building
if none of the premises on the level are used for carrying on retail business; and
in a stand-alone building if none of the premises in the building are used for
carrying on retail businesses (non- retail precinct exclusion).
The Bill also excludes from the Act retail shop leases for a business conducted
from the premises and operated by the lessee on behalf of the lessor.
The definition of retail shop lease in the Act currently excludes premises within
a common area of a retail shopping centre if the premises are used for
`information, entertainment, community or leisure facilities'. The Bill clarifies
that automatic teller machines and vending machines are excluded for the
purposes of the Act.
Enhanced Lessee Protection
The Bill includes measures to enhance lessee protection:
requiring lessor disclosure to an existing lessee on renewal of a lease under an
option;
facilitating appropriate disclosure to franchisees;
ensuring that a lessee is only liable to refurbish the leased shop during the lease
term where the lease gives sufficient details of the nature, extent and timing of
the required refurbishment;
requiring a lessor's annual estimate and audited statement of outgoings to
provide a breakdown of centre management fees;
requiring the lessor to make available to the lessee a marketing plan detailing
the lessor's proposed advertising/promotion expenditure;
providing for the release of the assignor lessee by the lessor to include the
assignor lessee's guarantors;
making the lessor liable for mortgagee consent costs; and
enhancing protection for prospective purchasers of retail businesses through
assignor disclosure.
Amendments benefitting lessors
The Bill includes the following measures which benefit lessors:
exclusion of all leases with a floor area greater than 1000m2 and the non-retail
precinct exclusion;
clarification about when a lessor disclosure statement cannot be taken to be
defective;
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Retail Shop Leases Amendment Bill 2014
provision for lessor recovery of lease preparation costs where the lessee has
negotiated, but does not proceed with, the final lease after instructing for it to
be prepared;
provision for lessor's liability for compensation for business disruption to not
apply where the lessor's action is a reasonable response to an emergency; and
flexibility for a lease to limit a lessee's compensation claim for some specific
business disturbances notified by the lessor.
General improvements, red tape reduction and clarifications
The Bill also:
clarifies excluded areas for the purposes of apportioning lessor's outgoings;
clarifies the accounting and reporting obligations by lessors to lessees for
promotion/advertising and sinking fund contributions;
simplifies procedural requirements by:
- providing flexibility for lessee waiver of the lessor disclosure period; and
- simplifying waiver of the lessor disclosure period and implied rent
provisions by a lessee with five or more retail shops in Australia;
excludes unnecessary procedural requirements where the State, the
Commonwealth or a local government is lessee of premises situated in a retail
shopping centre;
clarifies the operation of various definitions and provisions;
provides for reasonable required timeframes under the Act;
clarifies and improves the efficiency of the current market rent determination
process;
clarifies and streamlines the jurisdiction of the Queensland Civil and
Administrative Tribunal (QCAT) in retail shop lease matters; and
removes unnecessary offences.
Removal of mandatory review requirement
The Bill removes the existing requirement for mandatory statutory review of the Act
every seven years. Removing the requirement for mandatory review will facilitate a
more flexible and effective policy and legislative response to emerging issues impacting
the Queensland retail sector.
Alternative ways of achieving policy objectives
A detailed options paper was released for stakeholder consultation in May 2013. It
explored over 120 options raised through public consultation on the 2011 discussion
paper. The results of public consultation on these options were considered by the
Reference Group and in deciding the outcomes of the statutory review.
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Retail Shop Leases Amendment Bill 2014
Estimated cost for government implementation
The State Government will not incur additional costs as a result of amendments in the
Bill.
Consistency with fundamental legislative principles
The Bill is consistent with the fundamental legislative principles.
Consultation
Considerable public and targeted industry stakeholder consultation has been
undertaken, including public release of a discussion paper and comprehensive options
paper, followed by a key stakeholder reference group process.
Written submissions in response to the discussion paper were received from 33 retail
sector and associated professional stakeholders and over 25 formal submissions were
received in response to the options paper.
The reference group comprised representatives from a balanced cross-section of 11
retailer, lessor, industry and legal stakeholder bodies.
Consistency with legislation of other jurisdictions
One of the objectives of the review was to identify opportunities to align with key
eastern seaboard States, where appropriate, to enhance operational efficiency and legal
certainty for stakeholders operating across jurisdictions.
The discussion paper and options paper for the review document the position in other
jurisdictions for issues and options considered as part of the review.
A number of proposals included in the Bill will align with the position in other eastern
seaboard states.
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Retail Shop Leases Amendment Bill 2014
Notes on provisions
Clause 1 provides the Act may be cited as the Retail Shop Leases Amendment
Act 2014.
Clause 2 provides that the Act commences on a day to be fixed by proclamation.
Clause 3 provides that the Act amends the Retail Shop Leases Act 1994.
Clause 4 amends section 7 (Meaning of outgoings) which defines lessor outgoings for
a retail shopping centre or leased building. Clause 4(1) is an amendment of a drafting
nature. Clause 4(2) provides that lessor's outgoings do not include a payment of an
excess in relation to a claim on the lessor's insurance policy for the centre or building
or associated areas. Clause 4(3) provides for renumbering of paragraphs in section
7(3).
Clause 5 amends section 8 (Meaning of retail shopping centre). Clause 5(1) provides
for an amendment of a drafting nature. Clause 5(2) provides that a retail shopping
centre does not include a level of a building where none of the premises on that level
are used for carrying on a retail business; or (if the retail shopping centre consists of
two or more buildings separated by common areas or a road) premises located in a
building if none of the premises in that building are used for carrying on a retail
business.
Clause 6 inserts a new heading, Division 1 General application of Act and former Act,
in Part 4 of the Act.
Clause 7 replaces section 11 (Application of the Act-when lease entered into). Section
11 provides that a retail shop lease is entered into on the earliest of (a) the first date by
which the lease is signed by all of the parties; (b) the date the lessee enters into
possession of the retail shop under the lease; (c) the date the lessee first pays rent
under the lease, other than as a deposit to secure the premises for the lease.
Clause 8 replaces sections 13-17 with sections 13-14.
Replacement section 13 (Application of Act to leases-general) provides generally that
the Act applies to retail shop leases whether entered into, or renewed, before or after
28 October 1994, subject to the listed provisions.
Replacement section 14 (Application of Act-if premises become or cease to be a retail
shop after commencement of lease) provides that: the Act does not apply in relation to
a lease of premises that become a retail shop only after the commencement of the
lease; and the Act continues to apply in relation to a lease of premises that cease to be
a retail shop after the commencement of the lease.
The clause also inserts new heading, Division 2 Relationship of Act to retail shop
leases, after section 14.
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Retail Shop Leases Amendment Bill 2014
Clause 9 renumbers section 18 (Act's provisions implied in leases) as section 15.
Clause 10 clarifies that a retail shop lease, or another agreement entered into for a
retail shop lease, is void if it purports to exclude the application of a provision of this
Act that applies to the lease and renumbers section 19 (Contracting out of Act
prohibited) as section 16.
Clause 11 renumbers section 20 (Act prevails over inconsistent leases) as section 17.
Clause 12 inserts new Division 3 Particular retail shop leases (sections 18-20C) in
Part 4.
Section 18 (Definition for div 3) defines a former Act lease for division 3 as (a) a
retail shop lease entered into or renewed before 28 October 1994; or (b) a retail shop
lease entered into, or renewed, under an option under an agreement that was entered
into before 28 October 1994; or (c) a retail shop lease entered into under an agreement
for lease entered into before 28 October 1994; or (d) an assignment of a retail shop
lease mentioned in paragraph (a), (b) or (c).
Section 19 (Application of Act and former Act to former Act leases) lists the
provisions of the Act that do not apply to former Act leases and the provisions of the
Retail Shop Leases Act 1984 (former Act) that continue to apply to former Act leases
and updates references for the purposes of applying the former Act to a former Act
lease.
Section 20 (Application of Act, s 27-timing and bases of rent reviews) provides for:
how section 27, as in force immediately before 30 April 1999, applies for retail shop
leases entered into on or after 28 October 1994 but before 30 April 1999 and to
extensions or renewals of those leases; and how section 27, as in force immediately
before 1 July 2000, continues to apply for retail shop leases entered into on or after 30
April 1999 but before 1 July 2000 and to extensions or renewals of those leases.
Section 20A (Application of Act to short term retail shop leases) provides for the
provisions which apply in relation to a short term retail shop lease entered into on or
after 3 April 2006.
Section 20B (Application of Act to particular government leases) provides that,
despite section 10, sections 22A, 22D and 46 do not apply in relation to a government
lease.
Section 20C (Application of Act to leases of service stations) provides as for existing
section 17 with updated references to the Competition and Consumer (Industry
Codes--Oilcode) Regulation 2006 (Cwlth).
Clause 13 replaces section 21-22A and inserts a heading, Division 1 Preliminary, in
part 5.
Section 21 provides that part 5 does not apply to a retail shop lease for a periodic
tenancy or tenancy at will.
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Retail Shop Leases Amendment Bill 2014
The clause inserts the heading, Division 2 Disclosure for entering into or renewing
lease, after section 21.
Section 21A (Application of div 2) provides that the division does not apply to an
assignment of a retail shop lease.
Section 21B (Lessor's disclosure obligation to prospective lessee) provides that, at
least 7 days before a prospective lessee of a retail shop enters into a retail shop lease,
the lessor must give the prospective lessee a draft of the lease and a disclosure
statement. If the prospective lessee gives the lessor a waiver notice; and, if the
prospective lessee is not a major lessee, a legal advice report, it is sufficient if the
lessor gives the prospective lessee the disclosure statement before the prospective
lessee enters into the lease.
Section 21C (Lessors' disclosure obligation for subleases) provides for compliance
with section 21B by a prospective sublessor in relation to the sublease of a retail shop
lease. The prospective sublessor may request a disclosure statement from the head
lessor. The head lessor must, within 28 days of receiving the prospective sublessor's
request, give the prospective sublessor a lessor disclosure statement. The prospective
sublessor must pay the head lessor's reasonable expenses incurred for preparation of
the disclosure statement.
Section 21D (Franchisor's disclosure obligation to franchisee) provides for
compliance with section 21B by a franchisor who is the lessee of a leased shop; and
who proposes to grant to a franchisee a licence or other similar contractual right to
occupy and to use all or part of the leased shop wholly or predominantly for the
carrying on of a retail business. The franchisor may request a disclosure statement
from the head lessor. The head lessor must, within 28 days of receiving the
franchisor's request, give the franchisor a lessor disclosure statement. The franchisor
must pay the head lessor's reasonable expenses incurred for preparation of the
disclosure statement.
Section 21E (Lessor's disclosure obligation to lessee for renewal) provides for a new
requirement for lessor disclosure on renewal of a retail shop lease under an option. It
provides for a current disclosure statement to be given within 7 days after the day on
which the lessor receives the renewing lessee's notice exercising the option to renew.
If the lessee gives the lessor a waiver notice, it is sufficient if the lessor gives the
prospective lessee the disclosure statement before the prospective lessee enters into
the lease. Within 14 days of receiving the current disclosure statement, the lessee may
give the lessor a notice to advise the lessor that the lessee's notice exercising the
option is withdrawn.
Section 21F (Lessor's failure to comply with disclosure obligation) provides that a
lessee may terminate a lease within 6 months of entering into a lease if the lessor does
not comply with section 21B or 21E, or the disclosure statement given to the lessee
under section 21B or 21E is a defective statement. The section clarifies that a
disclosure statement is not a defective statement merely because it omits information
that is irrelevant to the lease, or its layout does not comply with that of the approved
form. The section provides the lessor is liable to pay to the lessee the reasonable
compensation decided by way of the dispute resolution process for loss or damage
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Retail Shop Leases Amendment Bill 2014
suffered by the lessee because of the non-compliance or defective statement. The
section makes new provision for the giving of notice of termination by the lessee, an
objection procedure for the lessor and for disputed terminations to be a retail shop
lease dispute.
Section 22 (Lessor to give lessee lease document or certified copy of lease) provides
that within 30 days after a retail shop lease is signed by the parties, the lessor must
give the lessee the signed lease document or a certified copy of the signed lease.
Section 22A (Prospective lessee's disclosure obligation to lessor) provides that a
prospective lessee (other than a prospective franchisee) must at least 7 days before the
prospective lessee enters into a retail shop lease give the lessor a disclosure statement.
The clause also inserts a new heading, Division 3 Disclosure for assignment of leases
and inserts new section 22AA (Application of div 3) which provides that the division
applies only to the assignment of a retail shop lease.
Clause 14 amends section 22B (Assignor's and prospective assignee's disclosure
obligations to each other) to provide that an assignor of a retail shop lease must give
the prospective lessee a disclosure statement at least 7 days before the earliest of the
following: (a) if the assignment of lease is related to an agreement for the sale of the
assignor's business carried on in the leased shop to the assignee, the day on which the
assignees enters into the agreement; or (b) the day the lessor is asked to consent to the
assignment.
Clause 15 replaces section 22C (Lessor's and prospective assignee's disclosure
obligations to each other) and requires the lessor to give the prospective assignee a
disclosure statement at least 7 days before the assignment of the retail shop lease is
entered into. If the prospective assignee gives the lessor a waiver notice and, if the
prospective assignee is not a major lessee, a legal advice report, it is sufficient if the
lessor gives the prospective assignee the disclosure statement before the prospective
assignee enters into the assignment.
Clause 16 inserts a new part 5 division 4 heading, Division 4 General provisions, after
section 22C.
Clause 17 amends section 22D (Financial and legal advice reports) to clarify that the
provision does not apply to a prospective franchisee.
Clause 18 omits section 23 (Lessor to give lessee certified copy of lease) which has
been replaced in this Bill as section 22.
Clause 19 amends section 24 (Lessee's obligation to make particular payments) to
update a cross reference.
Clause 20 amends section 25 (Requirements if rent is a percentage of turnover) to
omit subsections (2) and (3) and remove the requirement for the lessee under a
turnover lease to give the lessor monthly turnover certificates and an annual audited
statement of turnover.
Clause 21 amends section 26 (Lessor not to disclose turnover information) as a
consequence of the amendment to section 25.
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Retail Shop Leases Amendment Bill 2014
Clause 22 amends section 27 (Timing and bases of rent review) to simplify the
drafting of subsection (1). The clause also amends subsection (8) which provides for
when the implied rent review provisions in subsections 27(2)-(7) do not apply for a
major lessee. The amendment replaces the requirement for a notice by the major
lessee under subsection (8) to state that the lessee has received appropriate financial
and legal advice about the lease with the requirement that the notice state that the
lessee agrees that subsection (2)-(7) do not apply to the lease.
Clause 23 amends section 27A (Lessee may require early determination of current
market rent). The clause amends subsection (1A) which provides for when the section
does not apply for a major lessee. The amendment replaces the requirement for a
notice by the major lessee stating the lessee has received appropriate financial and
legal advice about the lease with the requirement that the notice state that the lessee
agrees that subdivision 2 does not apply in relation to the lease.
Clause 24 changes the reference in section 28 (Rent review on basis of current market
rent) from a specialist retail valuer (SRV) being nominated to being appointed.
Clause 25 replaces section 28A (Parties' submissions to specialist retail valuer) to:
specify a minimum timeframe for making submissions to the SRV; provide the lessor
or lessee is taken not to have made a submission if the lessor or lessee does not give a
submission to the SRV by the date stated by the SRV for making submissions (the
submission date). In relation to responses to the submissions of other lease parties, the
SRV can decide a date that is reasonable in the circumstances by which the lessee or
lessor who does not give a response to the SRV is taken to have not made a response
(the response date).
Clause 26 amends section 29 (Matters to be considered by specialist retail valuers) to
provide that the basis for current market rent determination is the rent that would be
reasonably expected to be paid for the retail shop if it were unoccupied and offered
for leasing for the same or a substantially similar use for which the shop may be used
under the lease. The clause adds that the SRV must have regard to responses of the
lessor and lessee.
Clause 27 amends section 32 (Valuer to give determination to lessor and lessee)
which provides that the SRV must give the SRV's determination to the lessee and
lessor within 1 month of the latest of stated events or times. The clause amends
paragraph (b) to state the submission date in new section 28A; and amends paragraph
(c) to state the response date in new section 28A for when a submission is made to
the SRV.
Clause 28 amends section 36 (Certain rent review provisions of leases void) to
provide that a provision of the lease that would otherwise be void to a particular
extent because of subsection (1)(d) or (e) is not void to that extent if, under a retail
shop lease, a major lessee gives a notice under section 27(8).
Clause 29 amends section 36A (Ratchet rent provision void) to provide that a ratchet
rent provision that would otherwise be void is not void if, under a retail shop lease, a
major lessee gives a notice under section 27(8).
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Retail Shop Leases Amendment Bill 2014
Clause 30 inserts new section 36B which defines terms for division 5. The defined
terms include clarification that, for the division, apportionable outgoings for a retail
shop lease include promotion amounts and maintenance amounts to the extent the
amounts are treated as part of the lessor's outgoings under the lease.
The clause also replaces section 37 (Requirements when lessee to pay lessor's
outgoings),which provides for what a lease must specify if the lessee under a retail
shop lease is to be liable to pay an amount to the lessor for outgoings.
Clause 31 amends section 38 to clarify that apportionable outgoings, for a retail shop
lease, include promotion amounts and maintenance amounts to the extent the amounts
are treated as part of the lessor's outgoings under the lease; and exclude from the total
area of a shopping centre or leased building taken into account in determining the
apportionable outgoings for a leased shop, areas within a common area of the centre
or building used for a prescribed purpose. Section 38 is also amended to clarify that
the total area taken into account in determining the apportionable outgoings for a
leased shop is the total area of the shopping centre or leased building owned by the
lessor.
The clause also inserts new sections 38A-38C.
Section 38A (Annual estimate of apportionable outgoings) providse for: the lessor
under a retail shop lease to give the lessee an annual estimate of the lessor's
apportionable outgoings and the proportion of those outgoings for which the lessee
will be liable under the lease; the timing for the giving of the estimate; the itemisation
of the estimate; and for the estimate to include a breakdown of the estimated fees to
be paid by the lessee towards the administration costs of running the centre and any
other fees to be paid to a centre management entity.
Section 38B (Audited annual statement of outgoings) provides that the lessor under a
retail shop lease must give the lessee a statement of the lessor's apportionable
outgoings (the audited annual statement). The section specifies the timeframe for
providing the audited annual statement and the requirements for the statement,
including a new provision that the statement may relate to more than one lessee as
long as each lessee is able to ascertain from the statement the information relevant to
that lessee.
Section 38C (Lessor does not give outgoings estimate or audited annual statement)
provides that the lessee may withhold payments in relation to apportionable outgoings
until the lessor gives the lessee the outgoings estimate under section 38A or audited
annual statement under section 38B.
Clause 32 amends section 40 (Sinking fund for major maintenance and repairs) to
omit penalties for breach of subsections (3), (4) and (7).
Clause 33 inserts new section 40A (Marketing plan for promotion and advertising)
which provides that, if a retail shop lease requires the lessee to pay amounts to the
lessor for promotion and advertising, the lessor must at least 1 month before the start
of each accounting period of the lessor, make available to the lessee a marketing plan
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Retail Shop Leases Amendment Bill 2014
that gives details of the lessor's proposed spending on promotion and advertising
during that accounting period.
Clause 34 amends section 41 (Promotion and advertising) to provide that if all or part
of a promotion amount paid for a period by the lessee is not spent during the period,
the lessor must carry forward the unspent promotion amount to be applied towards
spending on promotion and advertising of the centre. The clause also inserts a new
requirement for an audited annual statement of the lessor's expenditure on promotion
amounts to be made available to the lessee.
Clause 35 inserts sew section 41A which defines lessee for part 6 division 7 to
include an assignee of the lease.
Clause 36 amends section 42 (Compensation provisions implied in particular leases)
to provide under subsection (1) that a lease is taken to include (in addition to section
43) sections 43AA, 43AB, 43AC and 43AD; and to clarify that subsection (1) does
not apply is a periodic tenancy, other than a periodic tenancy created by the lessee
holding over under the lease or with the lessor's consent.
Clause 37 amends the heading of section 43 (When compensation is payable by
lessor) and provides that the lessee must give the lessor written notice of the loss or
damage mentioned in subsection (1) as soon as practicable after it is suffered; and that
the lessee's failure fails to give the lessor the notice does not affect any right of the
lessee to compensation but must be considered when deciding the amount of
compensation under section 44.
Clause 38 inserts new sections 43AA- 43AD.
New section 43AA (When compensation is payable by lessor-false or misleading
statements etc.) replaces existing subsection 43(2) and provides for the circumstances
when the lessor is liable to pay to the lessee reasonable compensation for loss or
damage suffered by the lessee in relation to a false or misleading statement or
misrepresentation, or the leased shop not being available to the lessee for trading on
the date specified in the disclosure statement under section 21B or 22C.
New section 43AB (No liability for compensation-emergency responses and statutory
compliance) provides that the lessor is not liable to pay compensation under section
43(1) for action taken as a reasonable response to an emergency or acting in
compliance with a statutory duty.
New section 43AC (No liability for compensation-trading hours) replaces existing
subsection 43(3) and provides that the lessor is not liable to pay compensation under
section 43(1) or 43AA merely because the lessor has prevented the lessee from
extending, as permitted by the Trading (Allowable Hours) Act 1990, the hours during
which the lessee keeps the leased shop open for trading.
New section 43AD (Lessor's liability for relocation or demolition) clarifies that the
lessor is not liable to pay compensation under section 43(1)(f) to the extent the lessee
is otherwise entitled to payment of relocation costs under section 46G or reasonable
compensation under section 46K.
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Retail Shop Leases Amendment Bill 2014
Clause 39 amends section 44 (Amount of compensation) to omit subsection (2) which
provides that an agreement under the lease or an assignment of the lease about
compensation payable under this division is void to the extent it limits the amount.
This provision is relocated to new section 44A(1) by the Bill.
Clause 40 inserts new section 44A which provides that an agreement under a retail
shop lease or under an assignment of a retail shop lease about compensation payable
under this division is void to the extent it limits the amount of compensation. It
provides for an exception to this provision for compensation for an anticipated
disturbance that occurs within 1 year of the date the lease is entered into if the lessor
gives the lessee a written notice including stated particulars of the anticipated
disturbance in relation to which a lessor is liable to pay the lessee compensation under
section 43(1)(a) to (e).
Clause 41 amends section 45 (Lessee's right to deal with lease and business assets).
The amendments clarify a provision, remove a penalty and update a cross reference.
Clause 42 amends section 46 (Lessor's notice about when option to renew or extend
must be exercised) to omit a penalty and clarifies the definition of option date.
Clause 43 inserts new section 46AB which provides that part 6, division 8A applies
only in relation to a retail shop lease entered into on or after 24 June 2001.
Clause 44 amends the heading of and replaces section 46C (Provisions implied in
retail shop lease) to clarify that a retail shop lease that provides for the relocation of
the lessee's business during the term of the lease is taken to include sections 46D to
46G, and accord with current drafting practice.
Clause 45 amends the heading of section 46D (How lessor takes relocation action)
and subsection (1) to accord with current drafting practice. The amendment provides
that, if the leased shop the subject of a relocation notice is within a retail shopping
centre, the relocation notice must state details of a reasonably comparable alternative
retail shop within the centre to be made available to the lessee.
Clause 46 amends section 46J (Termination by lessee), which applies where the
building in which the leased shop is located is to be demolished. Section 46J provides
that, if the lessor gives the lessee a lessor's termination notice under section 46I, the
lessee may terminate the lease earlier than the termination day by giving the lessor
written notice of an earlier termination day. The amendment changes the notice
requirement for the lessee's termination notice from at least 7 days before the earlier
termination day to at least 1 month before the earlier termination day.
Clause 47 replaces section 48 (Lessee's liability for costs associated with preparation
etc. of lease) and provides that the lessor is responsible for the costs of obtaining the
consent of the lessor's mortgage, and the lessor's compliance with the Act. The
amendment includes a new provision that a prospective lessee will be liable for the
lessor's reasonable legal and other expenses in for preparation of a final lease if the
lessee gives notice agreeing to preparation of the final lease for signature and then
does not proceed. The clause also removes redundant references.
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Retail Shop Leases Amendment Bill 2014
Clause 48 replaces section 49 (Lessee's right to join or form commercial associations)
and it omits the existing penalty and makes void a provision of a retail shop lease to
the extent that it has the effect of preventing or restricting the joining or forming
stated associations.
Clause 49 inserts new section 50A (Release of assignor and guarantor from lease)
which provides that, when an assignment of a retail shop lease is entered into, the
assignor and any guarantor of the assignor are released from any liability under the
lease arising from any default by the assignee.
Clause 50 inserts new section 50B (Refurbishment and refitting) which provides that
a provision of a retail shop lease requiring the lessee to refurbish or refit the retail
shop is void unless the lease gives general details of the nature, extent and timing of
the refurbishment or refitting required.
Clause 51 amends section 51(Definitions), the definition of core trading hours in the
circumstances of paragraph (b)(ii) to state that core trading hours are the hours that
the greatest number of lessees of a centre are required by the lessor to keep retail
shops open for trading.
Clause 52 replaces section 53 (Trading hours) which makes requirements in leases for
lessees to trade outside core trading hours for a retail shopping centre void. It provides
that a condition of a retail shop lease that permits rather than requires the lessee to
open the retail shop for trading outside the core trading hours for the centre is not
void. It also preserves an offence for a lessor to require a lessee under a lease existing
at the at the commencement of the Trading (Allowable Hours) Act 1994 to extend
trading hours that immediately before the commencement of that Act the lessee was
required to keep the retail shop open for trading.
Clause 53 inserts new section 53A which provides that a lessee of a retail shop (first
lessee) is not liable for additional outgoings that are incurred by the lessor at the time
that the shop of an eligible lessee (as defined in section 51) is open for trading hours
outside core trading hours when the first lessee's shop is not open for trading.
Clause 54 is an amendment of a drafting nature.
Clause 55, in relation to section 97 (Mediator's jurisdiction), removes the limitation
on a mediator's jurisdiction in relation to disputes about arrears of rent and updates
the reference in section 103(1)(d) to the Competition and Consumer (Industry
Codes--Oilcode) Regulation 2006 (Cwlth).
Clause 56 in relation to section 103 (QCAT's jurisdiction), removes the limitation on
QCAT's jurisdiction in relation to disputes about arrears of rent and updates the
reference in section 103(1)(d) to the Competition and Consumer (Industry Codes--
Oilcode) Regulation 2006 (Cwlth).
Clause 57 omits section 122 (Review of Act).
Clause 58 omits obsolete transitional provisions in part 12, divisions 1, 2 and 4.
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Retail Shop Leases Amendment Bill 2014
Clause 59 renumbers part 12, divisions 3 and 5 as divisions 1 and 2.
Clause 60 inserts division 3 (Provisions for Retail Shop Leases Amendment Act
2014) in part 12 (Transitional provisions)
New section 136 (Definitions for div 3) provides definitions for the division of
amendment Act, and in relation to a provision, former and new.
New section 137 (Proposed retail shop leases before commencement--when lease
entered into) provides for the circumstances in which former section 11 continues to
apply for determining when a leases is entered into.
New section 138 (Proposed retail shop leases before commencement--lessor's
disclosure obligation) provides for the circumstances in which former section 22
continues to apply in relation to a lessor's disclosure obligation in relation to a
proposed lease.
New section 139 (Proposed retail shop leases before commencement--prospective
lessee's disclosure obligation) provides for the circumstances in which a prospective
lessee, having complied with former section 22A, is taken to have complied with new
section 22A.
New section 140 (Proposed assignment of retail shop leases before commencement--
assignor's disclosure obligation to prospective assignee) provides for the
circumstances in which former section 22B continues to apply in relation to an
assignor's disclosure obligations for a proposed assignment of a retail shop lease.
New section 141 (Proposed assignment of retail shop leases before commencement--
prospective assignee's disclosure obligation to lessor) provides for the circumstances
in which a prospective lessee, having complied with former section 22C, is taken to
have complied with new section 22C(3).
New section 142 (Timing and bases of rent reviews of proposed retail shop leases--
major lessees) provides for the circumstances in which notice given by a major lessee
under section 27(8)(b) is taken to be notice under new section 27(8)(b).
New section 143 (Early determination of current market rent of proposed retail shop
leases--major lessees) provides for the circumstances in which notice given by a
major lessee under section 27A(1A)(b) is taken to be notice under new section
27A(1A)(b).
New section 144 (Current market rent determinations of specialist retail valuers
agreed to or nominated before commencement) provides that if, before the
commencement, a specialist retail valuer is agreed to or nominated under former
section 28, former sections 28A and 29 continue to apply.
New section 145 (Certain rent review provisions and ratchet rent provisions--major
lessee) provides that new sections 36(2) and 36A(3) do not apply if, before the
commencement, a major lessee gives a lessor a notice under former section 27(8)(b).
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Retail Shop Leases Amendment Bill 2014
New section 146 (Annual estimate of apportionable outgoings) provides that, in
relation to a retail shop lease entered into within 1 month after the commencement, it
is sufficient compliance with new section 38A(2) if the lessor gives the outgoings
estimate within 1 month after the lease is entered into.
New section 147 (Marketing plans for promotion and advertising) provides that if,
within 1 month after the commencement, an accounting period for a retail shop lease
mentioned in new section 40A starts, it is sufficient compliance with new section 40A
if the lessor gives the marketing plan within 1 month after the accounting period
starts.
New section 148 (Termination by lessee) provides that former section 46J continues
to apply in relation to a lease, if before the commencement, the lessor gives the lessee
a lessor's termination notice under former section 46I.
New section 149 (Lessee's liability for costs associated with preparation of lease
before commencement) provides that section 48(3), as amended by the amending Act,
applies to a retail shop lease, or a proposed retail shop lease, whether or not the lessee
and lessor, or prospective lessee and lessor, enter into the lease.
New section 150 (Transitional regulation-making power) provides for a transitional
regulation making power for making provisions of a saving or transitional nature for
which it is necessary to make provision to allow or facilitate the change from the
operation of the unamended Act to the operation of the amended Act.
Clause 61 omits redundant definitions, inserts new definitions and amends existing
definitions. The amendments to the definition retail shop lease exclude: all retail
shops with a floor area of more than 1000m2; and premises used wholly or
predominantly for the carrying on of a business by a lessee for a lessor as the lessor's
employee or agent. The definition of retail shop lease is also amended to include in
the exclusions from the definition in paragraph (f): automatic teller machines, vending
machines and advertisement displays.
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