Queensland Bills

[Index] [Search] [Download] [Related Items] [Help]


This is a Bill, not an Act. For current law, see the Acts databases.


RETAIL SHOP LEASES BILL 1994

        Queensland




RETAIL SHOP LEASES BILL
         1994

 


 

Queensland RETAIL SHOP LEASES BILL 1994 TABLE OF PROVISIONS Section Page PART 1--PRELIMINARY 1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 PART 2--OBJECT OF ACT AND ITS ACHIEVEMENT 3 Object of Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 4 How object of Act to be achieved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 PART 3--INTERPRETATION Division 1--Standard definitions 5 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Division 2--Extended definitions 6 Meaning of "common areas" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 7 Meaning of "outgoings" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 8 Meaning of "retail shopping centre" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 9 Meaning of "turnover" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 PART 4--OPERATION OF ACT AND FORMER ACT 10 Act binds all persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 11 Application of Act--when lease entered into . . . . . . . . . . . . . . . . . . . . . . . . 17 12 Application of Act--where lease entered into . . . . . . . . . . . . . . . . . . . . . . . 17 13 Application of Act to leases--general . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 14 Continued application of certain provisions of former Act to existing retail shop leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 15 Application of Act--if premises become or cease to be retail shop after commencement of lease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 16 Application of Act to existing leases in exempt enterprises . . . . . . . . . . . . 20 17 Application of Act to leases of service stations . . . . . . . . . . . . . . . . . . . . . . 20

 


 

2 Retail Shop Leases 18 Act's provisions implied in leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 19 Contracting out of Act prohibited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 20 Act prevails over inconsistent leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 PART 5--PRELIMINARY DISCLOSURES ABOUT LEASES 21 Application of Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 22 Lessor to give lease and disclosure statement to prospective lessee . . . . . 21 23 Lessor to give lessee certified copy of lease . . . . . . . . . . . . . . . . . . . . . . . . . 22 PART 6--MINIMUM LEASE STANDARDS Division 1--Preliminary 24 Lessee's obligations to pay rent and outgoings . . . . . . . . . . . . . . . . . . . . . . . 22 Division 2--Turnover rent 25 Requirements if rent a percentage of turnover . . . . . . . . . . . . . . . . . . . . . . . 23 Division 3--Confidentiality of turnover information 26 Lessor not to disclose turnover information . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Division 4--Rent review 27 Rent may be reviewed on only 1 basis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 28 Rent review on basis of current market rent . . . . . . . . . . . . . . . . . . . . . . . . . 26 29 Matters to be considered by specialist retail valuers . . . . . . . . . . . . . . . . . . 26 30 Valuer may require information from lessor . . . . . . . . . . . . . . . . . . . . . . . . . 27 31 Requirements of determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 32 Valuer to give determination to lessor and lessee . . . . . . . . . . . . . . . . . . . . 27 33 Effect of determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 34 Parties to share cost of determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 35 Confidentiality of lease information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 36 Certain rent review provisions of leases void . . . . . . . . . . . . . . . . . . . . . . . . 28 Division 5--Lessor's outgoings and other payments 37 Requirements when lessee to pay lessor's outgoings . . . . . . . . . . . . . . . . . . 29 38 Lessee's liability to pay proportion of lessor's apportionable outgoings . . . 31 39 Payment of key money and amount for goodwill prohibited . . . . . . . . . . . . 31 Division 6--Other payments for retail shops in retail shopping centres 40 Sinking fund for major maintenance and repairs . . . . . . . . . . . . . . . . . . . . . . 32 41 Promotion and advertising . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

 


 

3 Retail Shop Leases Division 7--Implied provisions for compensation 42 Compensation provisions implied in certain leases . . . . . . . . . . . . . . . . . . . 33 43 When compensation is payable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 44 Amount of compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Division 8--Lease dealings 45 Lessee's right to deal with lease and business assets . . . . . . . . . . . . . . . . . . 35 46 Options to renew leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Division 9--General 47 Lessee's right to independent legal advice . . . . . . . . . . . . . . . . . . . . . . . . . . 37 48 Lessee's liability for costs associated with preparation etc. of lease . . . . . 38 49 Lessee's right to join or form commercial associations . . . . . . . . . . . . . . . . 38 50 Retail tenancy disputes about assignments of leases . . . . . . . . . . . . . . . . . . 38 PART 7--RETAIL SHOP LEASE TRADING HOURS 51 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 52 Requirements for resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 53 Trading hours . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 PART 8--RETAIL TENANCY DISPUTE RESOLUTION Division 1--Preliminary 54 Parties' rights under this Part preserved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 Division 2--Mediation of retail tenancy disputes 55 Lodgment of retail tenancy disputes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 56 Chief executive to act on dispute notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 57 Limited right of representation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 58 Conference to be held in private . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 59 Parties attendance at conference not compellable . . . . . . . . . . . . . . . . . . . . 43 60 Parties to mediation conference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 61 Mediation agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 62 No official record of mediation conference . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Division 3--Reference of retail tenancy disputes to tribunal 63 Reference of dispute--by mediator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 64 Reference of dispute--by party . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 65 Chief executive to refer dispute to tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . 45

 


 

4 Retail Shop Leases Division 4--Retail tenancy disputes hearings Subdivision 1--Directions hearings 66 Chairperson may hold directions hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Subdivision 2--Tribunal's hearing 67 Presiding member . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 68 Venues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 69 Hearing to be held in private . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 70 Appearances before tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 71 Limited right of representation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 72 Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 73 Amendment of dispute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 74 Questions to be decided by majority of tribunal . . . . . . . . . . . . . . . . . . . . . . 48 75 Tribunals to keep records of proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 76 Powers of tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 77 Inspection of documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 78 Offences--hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 79 Self incrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 80 False or misleading information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 81 False or misleading documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 82 Contempt of tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 Division 5--Provisions about tribunal orders 83 Tribunals' orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 84 Enforcement of certain tribunal orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 85 Orders requiring payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 86 Orders of tribunal to be complied with . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 87 Tribunal's order final and binding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 88 Restricted right to question tribunal's hearing and order . . . . . . . . . . . . . . . 54 Division 6--Renewal of retail tenancy disputes 89 Application to renew dispute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 90 Renewal of dispute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 Division 7--General 91 Parties to pay own costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

 


 

5 Retail Shop Leases 92 Allowance to witness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 93 Withdrawal of disputes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 94 Exclusion of other jurisdictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 PART 9--ADMINISTRATION Division 1--Mediators 95 Mediators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 96 Mediators' function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 97 Mediators' jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 98 Duration of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 99 Conditions of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 100 Removal from office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 101 Annual reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Division 2--Retail shop leases tribunals Subdivision 1--Tribunal panel and members 102 Appointment of members of tribunal panel . . . . . . . . . . . . . . . . . . . . . . . . . . 58 103 Duration of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 104 Conditions of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 105 Removal from office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 Subdivision 2--Composition, functions, jurisdiction and powers of tribunals 106 Composition of retail shop lease tribunals . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 107 Chairperson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 108 Tribunals' function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 109 Tribunals' jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 110 Tribunals' general powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 111 Transfer of hearings between tribunals and courts . . . . . . . . . . . . . . . . . . . . 61 Subdivision 3--Annual reports 112 Reports on discharge of tribunals' function . . . . . . . . . . . . . . . . . . . . . . . . . . 62 Division 3--Confidentiality, privilege and immunity 113 Mediators and tribunal members to maintain secrecy . . . . . . . . . . . . . . . . . 62 114 Ordinary protection and immunity allowed . . . . . . . . . . . . . . . . . . . . . . . . . . 63 115 Admissions made during dispute resolution process . . . . . . . . . . . . . . . . . . . 63

 


 

6 Retail Shop Leases Division 4--General 116 Register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 117 Delegations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 118 Chief executive may approve forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 119 Chief executive's responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 PART 10--MISCELLANEOUS 120 Evidentiary provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 121 Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 122 Review of Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 PART 11--REPEALS AND CONSEQUENTIAL AMENDMENTS 123 Acts repealed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 124 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 PART 12--SAVINGS AND TRANSITIONAL PROVISIONS 125 Definition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 126 Transitional regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 127 References of disputes to mediator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 128 References of disputes to tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 129 Expiry of Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 SCHEDULE . . . . . . . . . . . . . . . . . . . . . . . . . 68 ACT AMENDED VALUERS REGISTRATION ACT 1992 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

 


 

1994 A BILL FOR An Act about retail shop leases

 


 

s1 8 s4 Retail Shop Leases The Parliament of Queensland enacts-- 1 PART 1--PRELIMINARY 2 title 3 Short 1. This Act may be cited as the Retail Shop Leases Act 1994. 4 5 Commencement 2. This Act commences on a day to be fixed by proclamation. 6 ART 2--OBJECT OF ACT AND ITS ACHIEVEMENT 7 P of Act 8 Object 3. The object of this Act is to promote efficiency and equity in the 9 conduct of certain retail businesses in Queensland. 10 object of Act to be achieved 11 How 4. The object of this Act is to be achieved through-- 12 (a) mandatory minimum standards for retail shop leases; and 13 (b) a low cost dispute resolution process for retail tenancy disputes. 14

 


 

s5 9 s5 Retail Shop Leases ART 3--INTERPRETATION 1 P Division 1--Standard definitions 2 3 Definitions 5. In this Act-- 4 "agreement" includes an oral agreement. 5 "apportionable outgoings" of a lessor means the lessor's outgoings other 6 than specific outgoings. 7 "approved accounting standards" means the standards set out in the 8 statements of accounting and auditing standards issued by the 9 Australian Society of Certified Practising Accountants and the Institute 10 of Chartered Accountants in Australia. 11 "approved agent" means-- 12 (a) for the mediation of a retail tenancy dispute--an agent approved 13 by the mediator; or 14 (b) for the hearing of a retail tenancy dispute by a tribunal--an agent 15 approved by the tribunal. 16 "approved auditor" means-- 17 (a) a person registered, or taken to be registered, as an auditor under 18 the Corporations Law; or 19 (b) a person who is a member of, and holds a practising certificate 20 issued by, the Australian Society of Certified Practising 21 Accountants and the Institute of Chartered Accountants in 22 Australia. 23 "approved form" means a form approved by the chief executive. 24 "arbitration" means arbitration conducted-- 25 (a) under the Commercial Arbitration Act 1990; or 26 (b) if a retail shop lease provides for the manner of arbitration-- 27 (i) under the lease; and 28

 


 

s5 10 s5 Retail Shop Leases (ii) to the extent that the lease is inadequate--under the 1 Commercial Arbitration Act 1990. 2 "attendance notice" see section 76(1)(c) (Powers of tribunal). 3 "base rent" means rent, or the part of rent, that is a specified amount of 4 money (whether or not the amount is subject to change). 5 "building" includes any structure. 6 "chairperson" means the chairperson of a tribunal. 7 "common areas" see section 6 (Meaning of "common areas"). 8 "conviction" includes a plea of guilty or a finding of guilt by a court even 9 though a conviction is not recorded. 10 "disclosure statement" see section 22(1)(b) (Lessor to give lease and 11 disclosure statement to prospective lessee). 12 "dispute notice" see section 55 (Lodgment of retail tenancy disputes). 13 "dispute resolution process" means the process of mediation and hearing 14 of a retail tenancy dispute under Part 8 (Retail tenancy dispute 15 resolution), and includes all steps taken in making arrangements for a 16 mediation conference or tribunal hearing or in the follow-up of a 17 mediation conference or tribunal hearing. 18 "effective rent basis", for the determination of rent under a retail shop 19 lease, means the determination of the rent taking into account all 20 associated advantages and disadvantages under arrangements made 21 between the lessor and lessee that reflect the net consideration passing 22 to the lessor from the lessee under the lease and associated 23 arrangements. 24 "enforcement order" see section 83(2)(a) (Tribunals' orders). 25 "existing retail shop lease" means-- 26 (a) a retail shop lease entered into or renewed before the 27 commencement of this section; or 28 (b) a retail shop lease entered into, or renewed, under an option under 29 an agreement that was entered into before the commencement of 30 this section; or 31 (c) a retail shop lease entered into under an agreement for lease that 32

 


 

s5 11 s5 Retail Shop Leases was entered into before the commencement of this section; or 1 (d) an assignment of a retail shop lease mentioned in paragraph (a), 2 (b) or (c). 3 "former Act" means the Retail Shop Leases Act 1984. 4 "key money" means-- 5 (a) an amount to be paid to, or at the direction of, a lessor by way of 6 a premium, non-repayable bond or otherwise, for the granting, 7 renewing or assigning of a lease; or 8 (b) any benefit to be conferred on, or at the direction of a lessor for 9 the granting, renewing or assigning of a lease. 10 "lease" means an agreement under which a person gives or agrees to give 11 to someone else for valuable consideration a right to occupy premises 12 whether or not the right is-- 13 (a) an exclusive right to occupy the premises; or 14 (b) for a term or by way of a periodic tenancy or tenancy at will. 15 "leased building" means the building (other than a building in a retail 16 shopping centre) in which a leased shop is situated. 17 "leased shop" means the retail shop leased, or to be leased, under a retail 18 shop lease. 19 "lessee" in relation to a retail tenancy dispute includes the former lessee. 20 "lessor" means the person who, under a lease, is or would be entitled to the 21 rent payable for the leased premises regardless of the person's interest 22 in the premises, and includes-- 23 (a) the lessor's agent; and 24 (b) in relation to a retail tenancy dispute--the former lessor. 25 "maintenance amounts" see section 40(1) (Sinking fund for major 26 maintenance and repairs). 27 "mediation" means the process under Part 8 (Retail tenancy dispute 28 resolution), Division 2 (Mediation of retail tenancy disputes) under 29 which the parties to a retail tenancy dispute use a mediator to help them 30 resolve the dispute by negotiated agreement without adjudication. 31 "mediation agreement" see section 61 (Mediation agreements). 32

 


 

s5 12 s5 Retail Shop Leases "mediation conference" means a conference conducted by a mediator 1 under Part 8 (Retail tenancy dispute resolution), Division 2 (Mediation 2 of retail tenancy disputes) between the parties to a retail tenancy 3 dispute. 4 "mediator" means a mediator appointed under this Act. 5 "original order" see section 89(1) (Application to renew dispute). 6 "outgoings", of a lessor, see section 7 (Meaning of "outgoings"). 7 "payment order" see section 83(2)(b) (Tribunals' orders). 8 "promotion amounts" see section 41(1)(a) (Promotion and advertising). 9 "public corporation" means a public corporation within the meaning of 10 paragraph (a) of the definition "public corporation" under the 11 Corporations Law. 12 "renewed retail tenancy dispute" means a retail tenancy dispute that is 13 renewed under section 90 (Renewal of dispute). 14 "retail business" means a business prescribed by regulation as a retail 15 business. 16 "retail shop" means premises that are-- 17 (a) situated in a retail shopping centre; or 18 (b) used wholly or predominantly for the carrying on of 1 or more 19 retail businesses. 20 "retail shop lease" means a lease of a retail shop, other than a lease of-- 21 (a) a retail shop with a floor area of more than 1 000 m2 by a public 22 corporation or a public corporation's subsidiary; or 23 (b) premises in a theme or amusement park; or 24 (c) premises at a flea market, including an arts and crafts market; or 25 (d) a temporary retail stall at-- 26 (i) an agricultural or trade show; or 27 (ii) a carnival, festival or cultural event; or 28 (e) another type of premises prescribed by regulation. 29 "retail shopping centre" see section 8 (Meaning of "retail shopping 30

 


 

s6 13 s6 Retail Shop Leases centre"). 1 "retail tenancy dispute" means any dispute under or about a retail shop 2 lease, or about the use or occupation of a leased shop under a retail 3 shop lease, regardless of when the lease was entered into. 4 "specialist retail valuer" means a person whose name is recorded on the 5 list of specialist retail valuers kept under the Valuers Registration Act 6 1992. 7 "specific outgoings" means lessor's outgoings that are attributable to a 8 lessee because of the lessee's direct use of the service or facility 9 incurring the outgoing. 10 11 Example-- 12 If a lessor is billed for all electricity used in a retail shopping centre and charges 13 lessees for their metered use of electricity, the charges are specific outgoings. "subsidiary" of a public corporation means a subsidiary of the corporation 14 under the Corporations Law. 15 "tribunal" means a retail shop lease tribunal established under this Act. 16 "tribunal member" means a member of a tribunal. 17 "tribunal panel" means the panel of retail shop lease tribunal members 18 mentioned in section 102 (Appointment of members of tribunal 19 panel). 20 "tribunal panel member" means a member of the tribunal panel. 21 "turnover" see section 9 (Meaning of "turnover"). 22 Division 2--Extended definitions 23 of "common areas" 24 Meaning 6.(1) "Common areas" of a retail shopping centre are areas in or 25 adjacent to the centre that are used, or intended for use-- 26 (a) by the public; or 27 (b) in common by the lessees of premises in the centre in relation to 28 the conduct of businesses in premises in the centre. 29

 


 

s7 14 s7 Retail Shop Leases (2) "Common areas" include-- 1 (a) stairways, escalators and elevators; and 2 (b) malls and walkways; and 3 (c) parking areas; and 4 (d) toilets and rest rooms; and 5 (e) gardens and fountains; and 6 (f) information, entertainment, community and leisure facilities. 7 (3) However, "common areas" do not include leased areas. 8 of "outgoings" 9 Meaning 7.(1) A lessor's "outgoings" for a retail shopping centre or leased 10 building are-- 11 (a) the lessor's reasonable expenses directly attributable to the 12 operation, maintenance or repair of-- 13 (i) the centre or building; and 14 (ii) areas used in association with the centre or building; and 15 (b) charges, levies, premiums, rates or taxes payable by the lessor 16 because the lessor is the owner or occupier of-- 17 (i) the centre or building; or 18 (ii) the land on which the centre or building is situated. 19 (2) However, lessor's "outgoings" do not include-- 20 (a) land tax payable on the land on which the centre or building is 21 situated; and 22 (b) expenditure of a capital nature, including the amortisation of 23 capital costs; and 24 (c) contributions to a depreciation or sinking fund; and 25 (d) insurance premiums for loss of profits; and 26 (e) lessor's contributions to merchants' associations and centre 27 promotion funds; and 28

 


 

s8 15 s8 Retail Shop Leases (f) payment of interest and charges on amounts borrowed by the 1 lessor; and 2 (g) another item prescribed by regulation. 3 4 Examples of subsection (2)(b)-- 5 1. Costs and expenses of or incidental to the building or extension of, or major 6 improvement of a structural nature to, the centre or building or area used in 7 association with the centre or building, are expenditure of a capital nature. 8 2. Replacement costs of major items of plant and equipment in the centre or 9 building are expenditures of a capital nature. of "retail shopping centre" 10 Meaning 8.(1) A "retail shopping centre" is a cluster of premises-- 11 (a) 5 or more of which are used wholly or predominantly for 12 carrying on retail businesses; and 13 (b) for which 1 person is, or would be if the premises were leased, 14 the head lessor. 15 (2) However, a building with more than 1 storey is not a "retail 16 shopping centre" except to the extent that a storey of the building contains, 17 or adjoining storeys of the building each contain, a group of premises 18 complying with subsection (1)(a) and (b). 19 20 Examples of subsection (2)-- 21 1. In a multistorey building owned by 1 person, the ground floor contains 5 retail 22 businesses. All other floors of the building are used solely for commercial purposes, 23 eg. premises used by legal or accounting firms or financial advisory services. Only 24 the ground floor of the building is a retail shopping centre. 25 2. In a multistorey building owned by 1 person, the ground and first floors each 26 contain 5 retail businesses. All other floors of the building are used solely for 27 commercial purposes. The ground and first floors of the building collectively are a 28 retail shopping centre. 29 3. Each floor of a 5 storey building owned by 1 person contains 5 or more retail 30 businesses. The building is a retail shopping centre. (3) To remove any doubt, if a retail business is conducted in premises 31 situated in a building separated from a retail shopping centre only by the 32 centre's common areas, the "retail shopping centre" includes the 33 premises. 34

 


 

s9 16 s9 Retail Shop Leases 1 Example of subsection (3)-- 2 A fast food shop is conducted from a building in a retail shopping centre's car 3 park. The shop is part of the retail shopping centre. of "turnover" 4 Meaning 9.(1) "Turnover" of a business carried on in a leased shop is the gross 5 sales of the business for any particular period. 6 (2) However, "turnover" of a business does not include the following 7 amounts-- 8 (a) the net amount of discounts reasonably and properly allowed to 9 customers in the usual course of business; 10 (b) losses incurred in the resale or disposal of goods reasonably and 11 properly purchased from customers as trade-ins in the usual 12 course of business; 13 (c) amounts of uncollected credit accounts written off by the lessee; 14 (d) cash or credit refunds allowed on sales that have previously been 15 included as gross receipts if the goods sold are returned and the 16 sales cancelled; 17 (e) fees for services refunded in whole or part if the fees have 18 previously been included as gross receipts; 19 (f) amounts of instalments refunded to customers for cancelled 20 lay-by transactions; 21 (g) taxes imposed on the purchase price or cost of hire of goods or 22 services at the point of sale or hire; 23 (h) delivery charges; 24 (i) the value of goods exchanged between 2 or more of the lessee's 25 shops if the exchange is made solely for the convenient conduct 26 of the lessee's business and not for concluding a sale made at or 27 from the leased shop; 28 (j) the value of goods returned to shippers, wholesalers or 29 manufacturers; 30 (k) amounts received from the sale of the lessee's fixtures and 31 fittings from the leased shop; 32

 


 

s 10 17 s 13 Retail Shop Leases (l) amounts received from lottery sales made on a commission basis 1 (other than commission on the sales). 2 PART 4--OPERATION OF ACT AND FORMER ACT 3 binds all persons 4 Act 10. This Act binds all persons, including the State and, so far as the 5 legislative power of the Parliament permits, the Commonwealth and the 6 other States. 7 of Act--when lease entered into 8 Application 11. A retail shop lease is entered into on whichever is the earlier of the 9 following dates-- 10 (a) the date the lease becomes binding on the lessor and lessee; 11 (b) the date the lessee enters into possession of the leased shop. 12 of Act--where lease entered into 13 Application 12. This Act applies to all retail shop leases of premises in Queensland-- 14 (a) regardless of where the lease is entered into; and 15 (b) even though the lease purports to be governed by a law other than 16 Queensland law. 17 of Act to leases--general 18 Application 13.(1) This Act applies to all retail shop leases whether entered into or 19 renewed before or after the commencement of this section. 20 (2) However, this Part (other than section 14 (Continued application of 21 certain provisions of former Act to existing retail shop leases)), Part 5 22 (Preliminary disclosures about leases) and Part 6 (Minimum lease 23 standards) do not apply to existing retail shop leases. 24

 


 

s 14 18 s 14 Retail Shop Leases (3) Subsection (1) has effect subject to the following sections-- 1 · section 15 (Application of Act--if premises become or cease to 2 be retail shop after commencement of lease) 3 · section 16 (Application of Act to existing leases in exempt 4 enterprises) 5 · section 17 (Application of Act to leases of service stations) 6 · section 21 (Application of Part) 7 · section 42 (Compensation provisions implied in certain leases) 8 · section 45(4) (Lessee's right to deal with lease and business 9 assets) 10 · section 46(9) (Options to renew leases) 11 · Part 7 (Retail shop lease trading hours). 12 application of certain provisions of former Act to existing 13 Continued retail shop leases 14 14.(1) The following provisions of the former Act continue to apply (to 15 the extent that they applied immediately before the commencement of this 16 section) to an existing retail shop lease as if this Act had not been enacted-- 17 · Part 1 (Preliminary), other than section 5A (Exemptions) 18 · Part 2 (Prohibited conditions and provisions) 19 · Part 3 (Implied condition), other than the following sections-- 20 · section 10B (Designation of specialist retail valuers) 21 · section 10C (Appeal by aggrieved valuer) 22 · section 15A (Documents and information to be given to 23 lessee) 24 · section 56 (Offences generally and penalty) 25 · section 57 (Proceedings for offences) 26 · section 58 (Evidentiary provision) 27 · Schedules 1 and 2. 28 (2) For the purposes of applying a provision of the former Act to an 29

 


 

s 15 19 s 15 Retail Shop Leases existing retail shop lease, a reference in the provision to-- 1 (a) a specialist retail valuer is a reference to a specialist retail valuer 2 under the Valuers Registration Act 1992; and 3 (b) the registrar is a reference to the chief executive; and 4 (c) a mediator is a reference to a mediator under this Act; and 5 (d) a Retail Shop Leases Tribunal or Tribunal is a reference to a 6 tribunal under this Act. 7 of Act--if premises become or cease to be retail shop after 8 Application commencement of lease 9 15.(1) This Act does not apply to-- 10 (a) a lease of premises that become a retail shop after the 11 commencement of the lease; or 12 (b) an assignment of the lease; or 13 (c) a renewal of the lease under an option under the lease. 14 15 Example of subsection (1)(a)-- 16 On 1 April 1995 a person enters into a 3 year lease for the conduct of a business 17 from premises that are not in a retail shopping centre. On 1 September 1995, the 18 business is prescribed by regulation as a retail business. Under the subsection, this 19 Act does not apply to the lease even though the premises have become a retail shop. (2) This Act continues to apply to-- 20 (a) a lease of premises that cease to be a retail shop after the 21 commencement of the lease; or 22 (b) an assignment of the lease; or 23 (c) a renewal of the lease under an option under the lease. 24 25 Example of subsection (2)(a)-- 26 On 1 April 1995 a person enters into a 3 year lease for the conduct of a business 27 from premises in a retail shopping centre. On 1 September 1995, the business ceases 28 to be a retail shop because the cluster of premises in which the leased premises are 29 situated cease to be a retail shopping centre. Under the subsection, this Act 30 continues to apply to the lease even though the premises are no longer a retail shop.

 


 

s 16 20 s 19 Retail Shop Leases of Act to existing leases in exempt enterprises 1 Application 16.(1) This Act does not apply to leases-- 2 (a) entered into before the commencement of this section between the 3 owner of an exempt enterprise under the former Act and a tenant 4 of premises in the enterprise; and 5 (b) to which the former Act did not apply because of the exemption 6 of the enterprise from the provisions of the former Act. 7 (2) However, Part 8 (Retail tenancy dispute resolution), Division 2 8 (Mediation of retail tenancy disputes) applies to a lease mentioned in 9 subsection (1) if the lease would be a retail shop lease if entered into after 10 the commencement of this section. 11 of Act to leases of service stations 12 Application 17.(1) This Act does not apply to a retail shop lease for the carrying on of 13 the business of a service station if the Petroleum Retail Marketing 14 Franchise Act 1980 (Cwlth) applies to the carrying on of the business under 15 a franchise agreement within the meaning of that Act. 16 (2) This Act (other than Part 6 (Minimum lease standards)) applies to a 17 retail shop lease (whether entered into or renewed before or after the 18 commencement of this section) for the carrying on of the business of a 19 service station if the Petroleum Retail Marketing Franchise Act 1980 20 (Cwlth) does not apply to the carrying on of the business under a franchise 21 agreement within the meaning of that Act. 22 provisions implied in leases 23 Act's 18. If, under this Act, a duty is imposed or an entitlement is conferred on 24 a lessor or lessee under a retail shop lease, the duty or entitlement is taken to 25 be included in the lease. 26 out of Act prohibited 27 Contracting 19. A provision of a retail shop lease is void if it purports to exclude the 28 application of a provision of this Act that applies to the lease. 29

 


 

s 20 21 s 22 Retail Shop Leases prevails over inconsistent leases 1 Act 20. If a provision of this Act is inconsistent with a provision of a retail 2 shop lease, the provision of this Act prevails and the provision of the lease 3 is void to the extent of the inconsistency. 4 ART 5--PRELIMINARY DISCLOSURES ABOUT 5 P LEASES 6 of Part 7 Application 21. This Part does not apply to-- 8 (a) a retail shop lease for a periodic tenancy or tenancy at will; or 9 (b) a retail shop lease entered into or renewed under an option under a 10 retail shop lease; or 11 (c) an assignment of a retail shop lease. 12 to give lease and disclosure statement to prospective lessee 13 Lessor 22.(1) At least 7 days before a prospective lessee of a retail shop enters 14 into a retail shop lease, the lessor must give to the person-- 15 (a) a draft of the lease; and 16 (b) a statement (the "disclosure statement") containing the 17 particulars prescribed by regulation. 18 (2) The disclosure statement must be in the approved form. 19 (3) If a lessor does not comply with subsection (1)-- 20 (a) the lessee may terminate the lease by giving written notice to the 21 lessor within 2 months after the lessee enters into the lease; and 22 (b) the lessor is liable to pay to the lessee the reasonable 23 compensation decided by way of the dispute resolution process 24 for loss or damage suffered by the lessee because of the failure. 25 (4) The termination of a lease under subsection (3)(a) does not affect any 26

 


 

s 23 22 s 24 Retail Shop Leases right, privilege or liability acquired, accrued or incurred under the lease for 1 any period before the termination. 2 to give lessee certified copy of lease 3 Lessor 23. Within 30 days after a retail shop lease is signed by the parties, the 4 lessor must give the lessee a certified copy of the signed lease. 5 Maximum penalty--40 penalty units. 6 PART 6--MINIMUM LEASE STANDARDS 7 1--Preliminary 8 Division obligations to pay rent and outgoings 9 Lessee's 24.(1) A retail shop lease must not contain a provision requiring the 10 lessee to make any payment other than for rent and, if specified in the lease, 11 the lessor's outgoings or the specified part of the lessor's outgoings for the 12 retail shopping centre or leased building in which the leased shop is situated. 13 (2) Subsection (1) applies whether the provision requires payment to be 14 made-- 15 (a) to the lessor or someone else; or 16 (b) by the lessee or someone else. 17 18 Example of subsections (1) and (2)-- 19 A provision of a retail shop lease requiring a lessee to pay the lessor's land tax or 20 to reimburse the lessor for land tax (regardless of by whom, or to whom, the payment 21 is to be made) is void under section 20. (3) Subsection (1) has effect subject to the following sections-- 22 · section 34 (Parties to share cost of determination) 23 · section 39(2) (Payment of key money and amount for goodwill 24 prohibited) 25 · section 40 (Sinking fund for major maintenance and repairs) 26

 


 

s 25 23 s 26 Retail Shop Leases · section 41 (Promotion and advertising) 1 · section 48(2) (Lessee's liability for costs associated with 2 preparation etc. of lease). 3 Division 2--Turnover rent 4 if rent a percentage of turnover 5 Requirements 25.(1) This section applies if, under a retail shop lease, the rent is or may 6 be calculated either in whole or part as a percentage of the turnover of the 7 lessee's business carried on, or to be carried on, in or from the leased shop. 8 (2) The lease must specify the formula to be used to calculate the rent. 9 (3) During the term of the lease, the lessee must give to the lessor-- 10 (a) at the end of each month or at the other times agreed between the 11 parties, a certificate specifying with reasonable accuracy the 12 turnover of the business; and 13 (b) at the end of each year or at the other times agreed between the 14 parties, and at the termination of the lease, a statement of the 15 turnover of the business prepared by an approved auditor. 16 (4) If the lessee complies with subsection (3), the lessee is taken to have 17 fully complied with any obligation under the lease to give the lessor the 18 turnover of the lessee's business. 19 3--Confidentiality of turnover information 20 Division not to disclose turnover information 21 Lessor 26.(1) A lessor must not, whether directly or indirectly, disclose to 22 anyone else information obtained by the lessor about the turnover of the 23 lessee's business (whether under the lease or under section 25 24 (Requirements if rent a percentage of turnover)) without the lessee's 25 agreement. 26 Maximum penalty--60 penalty units. 27 (2) However, the lessor may disclose information-- 28

 


 

s 26 24 s 26 Retail Shop Leases (a) in a document giving the aggregate turnover of businesses, or a 1 class of business, in the retail shopping centre in which the leased 2 shop is situated if the disclosure is made in a way that does not 3 disclose information about the turnover of an individual lessee's 4 business; or 5 (b) specifying the turnover of the lessee's business to-- 6 (i) a prospective purchaser or mortgagee of the retail shopping 7 centre in which the leased shop is situated; or 8 (ii) a professional adviser to, or properly appointed agent of, a 9 prospective purchaser or mortgagee mentioned in 10 subparagraph (i); or 11 (iii) the lessor's professional advisers; or 12 (iv) a court under a court order; or 13 (v) a mediator or tribunal under this Act; or 14 (vi) a specialist retail valuer under section 30 (Valuer may 15 require information from lessor). 16 (3) A person who is given information under subsection (2)(b)(i) or 17 (ii)-- 18 (a) may use the information only to enable the prospective purchaser 19 or mortgagee to make a decision whether to purchase the lessor's 20 interest in, or to obtain financial accommodation on the security 21 of, the retail shopping centre; and 22 (b) must not, whether directly or indirectly, disclose the information 23 to anyone else without the lessee's agreement. 24 Maximum penalty--60 penalty units. 25 (4) A person who is given information under subsection (2)(b)(iii)-- 26 (a) may use the information only to determine the lessee's rent on the 27 basis of the turnover of the lessee's business carried on in the 28 leased shop or to advise the lessor on the centre's trading 29 performance; and 30 (b) must not, whether directly or indirectly, disclose the information 31 to anyone else without the lessee's agreement. 32

 


 

s 27 25 s 27 Retail Shop Leases Maximum penalty--60 penalty units. 1 (5) If a person discloses information in contravention of subsection (1), 2 (3) or (4) and the lessee suffers loss or damage because of the disclosure, 3 the lessee is entitled to the reasonable compensation for the loss or damage 4 agreed between the lessor and lessee or, failing agreement, decided by way 5 of the dispute resolution process. 6 (6) An agreement under the lease about the disclosure of turnover 7 information or the amount of compensation is not an agreement for the 8 purposes of subsection (1), (3)(b), (4)(b) or (5). 9 Division 4--Rent review 10 may be reviewed on only 1 basis 11 Rent 27.(1) If, under a retail shop lease, the rent payable under the lease or any 12 renewal or extension of the lease is to be reviewed during the term of the 13 lease or under an option to renew or extend the lease, the lease must state 14 the timing of the reviews and the basis on which the reviews are to be 15 made. 16 (2) The reviews must be made using only 1 basis for each rent review. 17 (3) The basis for a rent review must be-- 18 (a) an independently published index of prices, costs or wages; or 19 (b) a fixed percentage of the base rent; or 20 (c) a fixed actual amount; or 21 (d) the current market rent of the leased shop; or 22 (e) another basis prescribed by regulation. 23 (4) If the rent is determined as a base rent plus an amount equal to a 24 percentage of the turnover of the lessee's business above a stated amount, 25 the review of the base rent must be made in accordance with subsections (2) 26 and (3). 27 (5) If, under a retail shop lease, the rent is to be reviewed during the term 28 of the lease or any renewal or extension of the lease using more than 1 basis 29

 


 

s 28 26 s 29 Retail Shop Leases for a rent review, the rent payable for the rental period after the timing of the 1 review is the same as the rent payable before the timing of the review. 2 review on basis of current market rent 3 Rent 28.(1) This section applies if-- 4 (a) rent under a retail shop lease is to be reviewed on the basis of the 5 current market rent of the leased shop; and 6 (b) the lessor and lessee cannot agree on the current market rent 7 within 1 month after the review date. 8 (2) The current market rent is to be determined by a specialist retail 9 valuer agreed by the lessor and lessee, or failing agreement, nominated by 10 the chief executive. 11 (3) The valuer may carry out the determination only if the valuer is 12 independent of the interests of the lessor and lessee. 13 to be considered by specialist retail valuers 14 Matters 29. In making a determination of the current market rent, the specialist 15 retail valuer-- 16 (a) must determine the rent-- 17 (i) on the basis of the rent that would be reasonably expected to 18 be paid for the retail shop if it were unoccupied and offered 19 for leasing for the use for which the shop may be used under 20 the lease or a substantially similar use; and 21 (ii) on the basis of gross rent less lessor's outgoings payable by 22 the lessee under the lease; and 23 (iii) on an effective rent basis; and 24 (b) must not have regard to the value of the goodwill of the lessee's 25 business or the lessee's fixtures and fittings in the retail shop; and 26 (c) must have regard to-- 27 (i) submissions from the lessor and lessee about the market 28

 


 

s 30 27 s 32 Retail Shop Leases rent of the shop; and 1 (ii) the other matters prescribed by regulation. 2 may require information from lessor 3 Valuer 30.(1) The specialist retail valuer may, by written notice, require the 4 lessor to give the valuer any relevant information about leases in the retail 5 shopping centre in which the shop is situated. 6 (2) If the lessor does not give the information to the valuer within 7 14 days after the notice is given to the lessor, a retail tenancy dispute under 8 the retail shop lease exists between the lessor and the valuer.1 9 (3) This section has effect despite the provisions of the retail shop lease. 10 of determination 11 Requirements 31. The specialist retail valuer's determination of the current market rent 12 must be in writing, identify the location of the leased shop and specify the 13 matters taken into consideration by the valuer in making it. 14 to give determination to lessor and lessee 15 Valuer 32. The specialist retail valuer must give the valuer's determination to the 16 lessor and lessee-- 17 (a) within 1 month after the valuer is asked to make the 18 determination; or 19 (b) if a retail tenancy dispute exists under section 30 (Valuer may 20 require information from lessor) and a dispute notice has been 21 lodged under section 55 (Lodgment of retail tenancy 22 disputes)--the later day agreed under a mediation agreement or 23 fixed by a tribunal. 24 1 The lessor or valuer may lodge notice of the dispute under section 55 (Lodgment of retail tenancy disputes).

 


 

s 33 28 s 36 Retail Shop Leases of determination 1 Effect 33. The current market rent of the leased shop determined by the 2 specialist retail valuer is the current market rent of the shop and the rent 3 payable under the lease for the rental period under the review. 4 to share cost of determination 5 Parties 34. The lessor and lessee must each pay 1/2 of the specialist retail valuer's 6 fee for the determination to the valuer. 7 of lease information 8 Confidentiality 35.(1) A specialist retail valuer who obtains information under section 30 9 (Valuer may require information from lessor) must not-- 10 (a) use the information for any purpose other than to determine the 11 current market rent for the leased shop; and 12 (b) whether directly or indirectly, disclose the information to anyone 13 else without the agreement of the lessor and lessee. 14 Maximum penalty--60 penalty units. 15 (2) However, subsection (1)(b) does not prevent the valuer from 16 disclosing information in a way that does not identify a particular lease 17 when specifying the matters taken into consideration by the valuer in 18 making the determination. 19 (3) If the valuer discloses information in contravention of subsection (1) 20 and the lessor or lessee suffers loss or damage because of the disclosure, 21 the lessor or lessee is entitled to be paid by the valuer the reasonable 22 compensation for the loss or damage agreed between the lessor or lessee 23 and the valuer or, failing agreement, decided by way of the dispute 24 resolution process. 25 rent review provisions of leases void 26 Certain 36. A provision of a retail shop lease is void to the extent that it-- 27 (a) requires the lessee to appoint someone to determine the current 28 market rent of the leased shop other than in accordance with this 29

 


 

s 37 29 s 37 Retail Shop Leases Act; or 1 (b) requires the lessee to pay for a determination of current market 2 rent by a specialist retail valuer other than under section 34 3 (Parties to share cost of determination); or 4 (c) requires the determination of the current market rent of the leased 5 shop to be made other than in accordance with this Act; or 6 (d) reserves, or has the effect of reserving, to a party a discretion to 7 apply 1 of 2 or more methods of calculating the rent of the leased 8 shop on a particular review of the rent; or 9 (e) provides for the rent of the leased shop to change on a particular 10 review of the rent in accordance with whichever of 2 or more 11 methods of calculating the change would result in the higher or 12 highest rent. 13 5--Lessor's outgoings and other payments 14 Division when lessee to pay lessor's outgoings 15 Requirements 37.(1) In this section-- 16 "outgoings" include maintenance and promotion amounts. 17 (2) If, under a retail shop lease, the lessee is required to pay all or part of 18 the lessor's outgoings for the retail shopping centre or leased building in 19 which the leased shop is situated-- 20 (a) the lease must specify-- 21 (i) the outgoings payable by the lessee; and 22 (ii) how the outgoings will be determined and apportioned to the 23 lessee; and 24 (iii) how the outgoings may be recovered by the lessor from the 25 lessee; and 26 (b) the lessor must give to the lessee an annual estimate in the 27 approved form of the lessor's outgoings-- 28 (i) at least 1 month before the start of the period to which the 29 estimate relates; or 30

 


 

s 37 30 s 37 Retail Shop Leases (ii) if the lessee enters into the lease during the period to which 1 the estimate relates or within 1 month before the start of the 2 period--when the lessee enters into the lease; and 3 (c) the lessor must give the lessee an audited annual statement in the 4 approved form of the outgoings within 3 months after the end of 5 the period to which the outgoings relate. 6 Maximum penalty--60 penalty units. 7 (3) The outgoings shown in the annual estimate and statement must be 8 itemised so that the amount shown for each item is not more than 5% of the 9 total outgoings shown in the estimate or statement. 10 (4) However, the amount shown for an item may be more than 5% of 11 the total outgoings if the item relates to-- 12 (a) a charge, levy, rate or tax payable under an Act; or 13 (b) a particular outgoing that cannot be broken up to comply with the 14 subsection (3). 15 (5) The audited annual statement must-- 16 (a) be prepared by an approved auditor in accordance with the 17 approved accounting standards;2 and 18 (b) contain the auditor's opinion on whether the statement presents 19 fairly the lessor's outgoings for the accounting period to which it 20 relates in accordance with the lessor's financial records and this 21 Act; and 22 (c) compare the annual estimates of the lessor's outgoings with the 23 amount actually spent by the lessor for the outgoings during the 24 period; and 25 (d) compare the total amount actually spent by the lessor for 26 outgoings during the period with the total amounts actually paid 27 by lessees to the lessor during the period. 28 (6) If a person becomes the owner of a retail shopping centre or building 29 containing 1 or more retail shops, the first estimate and statement of 30 outgoings given by the person may be made for a period less than 1 year. 31 2 The standards, among other things, deal with the integrity, objectivity and independence of the auditor--see paragraph 16 of the AUS1 standards.

 


 

s 38 31 s 39 Retail Shop Leases liability to pay proportion of lessor's apportionable outgoings 1 Lessee's 38.(1) In this section-- 2 "apportionable outgoings" include maintenance amounts. 3 (2) The proportion of a lessor's apportionable outgoings for a retail 4 shopping centre or leased building payable by a lessee under a retail shop 5 lease who is enjoying or sharing the benefit of the outgoing must not be 6 more than the proportion that the area of the lessee's leased shop bears to 7 the total area of all premises in the centre or building that are-- 8 (a) leased to or occupied by lessees who enjoy or share the benefit 9 resulting from the outgoing (whether or not they are lessees under 10 retail shop leases); or 11 (b) available for lease to or occupation by lessees who would, if 12 leased or occupied, enjoy or share the benefit resulting from the 13 outgoing (whether or not they would be lessees under retail shop 14 leases). 15 of key money and amount for goodwill prohibited 16 Payment 39.(1) A person must not, as lessor or for the lessor, under or in relation 17 to a retail shop lease, seek or accept the payment of key money or any 18 amount for the goodwill of the lessee's business carried on in or from the 19 leased shop. 20 Maximum penalty--100 penalty units. 21 (2) However, subsection (1) does not prevent a lessor from-- 22 (a) recovering from the lessee the lessor's costs reasonably incurred 23 in investigating a proposed assignee of the lessee under a retail 24 shop lease; or 25 (b) recovering from the lessee the lessor's reasonable expenses of 26 and incidental to an assignment of a retail shop lease and any 27 necessary consents to the assignment; or 28 (c) receiving payment of rent in advance if the amount paid is not 29 more than the rent payable for 1 rental period under the lease; or 30 (d) getting a repayable bond from the lessee to secure the lessee's 31 obligations under the lease; or 32

 


 

s 40 32 s 40 Retail Shop Leases (e) receiving from the purchaser of the lessor's business conducted 1 in a retail shop payment for the goodwill of the business or the 2 plant, equipment, fixtures or fittings in the retail shop; or 3 (f) receiving payment from the lessee for amounts spent by the 4 lessor for fitting out the leased shop; or 5 (g) seeking and accepting payment for the grant of a franchise in 6 relation to the grant of a retail shop lease. 7 (3) If an amount is paid to, or a benefit accepted by, a person in 8 contravention of subsection (1), the person who paid or conferred the 9 benefit may recover the amount or value of the benefit as a debt. 10 Division 6--Other payments for retail shops in retail shopping centres 11 fund for major maintenance and repairs 12 Sinking 40.(1) This section applies if a lessee under a retail shop lease is required 13 to pay amounts ("maintenance amounts") into a sinking fund for major 14 maintenance of, or repairs to, the buildings, plant and equipment of, and 15 areas used in association with, the retail shopping centre in which the leased 16 shop is situated. 17 (2) The lessor may keep only 1 sinking fund for the purposes mentioned 18 in subsection (1) for the retail shopping centre. 19 (3) The lessor must pay maintenance amounts paid by the lessee for the 20 credit of the sinking fund into an interest bearing account kept by the lessor. 21 Maximum penalty--100 penalty units. 22 (4) The lessor must only apply amounts standing to the credit of the 23 sinking fund and interest earned on the fund for a purpose mentioned in 24 subsection (1). 25 Maximum penalty--100 penalty units. 26 (5) The lessor is liable to pay into the sinking fund any deficiency 27 attributable to a failure by the lessor or any predecessor in title of the lessor 28 to comply with subsection (4). 29 (6) The total payments into the sinking fund of all lessees of retail shops 30 in the retail shopping centre for any year must not be more than 5% of the 31

 


 

s 41 33 s 42 Retail Shop Leases total of the lessor's estimated outgoings for the centre for the year. 1 (7) The lessor must not seek or accept payments of maintenance 2 amounts from lessees of retail shops in the retail shopping centre that would 3 result in the amount standing to the credit of the sinking fund being more 4 than $100 000. 5 Maximum penalty for subsection (7)--100 penalty units. 6 and advertising 7 Promotion 41.(1) This section applies if-- 8 (a) a lessee under a retail shop lease is required to pay amounts for 9 promotion and advertising of the retail shopping centre 10 ("promotion amounts") in which the leased shop is situated to 11 the lessor or an entity to which the lessee is required under the 12 lease to be a member; and 13 (b) under the lease, the promotion amounts are not treated as part of 14 the lessor's outgoings. 15 (2) The lessor must only apply promotion amounts for promotion and 16 advertising directly attributable to the centre. 17 Maximum penalty--100 penalty units. 18 (3) To remove any doubt, subsection (2) does not prevent the lessor 19 from applying promotion amounts for joint promotions and advertising 20 with other retail shopping centres. 21 7--Implied provisions for compensation 22 Division provisions implied in certain leases 23 Compensation 42. A retail shop lease (other than a lease for a periodic tenancy or 24 tenancy at will) is taken to include sections 43 (When compensation is 25 payable) and 44 (Amount of compensation). 26

 


 

s 43 34 s 43 Retail Shop Leases compensation is payable 1 When 43.(1) The lessor is liable to pay to the lessee reasonable compensation 2 for loss or damage suffered by the lessee because the lessor, or a person 3 acting under the lessor's authority-- 4 (a) relocates the lessee's business to other premises during the term 5 of the lease or of any renewal of it; or 6 (b) substantially restricts the lessee's access to the leased shop; or 7 (c) takes action (other than action under a lawful requirement) that 8 substantially restricts, or alters-- 9 (i) access by customers to the leased shop; or 10 (ii) the flow of potential customers past the shop; or 11 (d) causes significant disruption to the lessee's trading in the leased 12 shop or does not take all reasonable steps to prevent or stop 13 significant disruption within the lessor's control; or 14 (e) does not have rectified as soon as is practicable-- 15 (i) any breakdown of plant or equipment under the lessor's care 16 or maintenance; or 17 (ii) any defect in the retail shopping centre or leased building 18 containing the leased shop, other than a defect due to a 19 condition that would have been reasonably apparent to the 20 lessee when the lessee entered into the lease or, for a lessee 21 by way of assignment of the lease, when the lessee accepted 22 the assignment; or 23 (f) neglects to clean, maintain or repaint the retail shopping centre or 24 leased building containing the leased shop or the part of the centre 25 or building that, under the lease, is the lessor's responsibility; or 26 (g) causes the lessee to vacate the leased shop before the end of the 27 lease or renewal of it because of the extension, refurbishment or 28 demolition of the retail shopping centre or leased building 29 containing the shop. 30 (2) The lessor is liable to pay to the lessee reasonable compensation for 31 loss or damage suffered by the lessee because-- 32 (a) the lessee entered into the lease, or a renewal of it, on the basis of 33

 


 

s 44 35 s 45 Retail Shop Leases a false or misleading statement or misrepresentation made by the 1 lessor or any person acting under the lessor's authority; or 2 (b) the leased shop was not available to the lessee for trading on the 3 date specified in the disclosure statement given to the lessee under 4 section 22 (Lessor to give lease and disclosure statement to 5 prospective lessee) because of the default of the lessor or anyone 6 acting under the lessor's authority. 7 (3) However, the lessee is not entitled to compensation under 8 subsection (1) or (2) merely because the lessor has prevented the lessee 9 from extending, as permitted by the Trading (Allowable Hours) Act 1990, 10 the hours during which the lessee keeps the leased shop open for trading. 11 of compensation 12 Amount 44.(1) If the lessor and lessee cannot agree on the amount of 13 compensation, the compensation payable to the lessee is to be decided by 14 way of the dispute resolution process. 15 (2) An agreement under the lease about compensation payable under 16 section 43 (When compensation is payable) is void to the extent that it 17 limits the amount of compensation payable under the section. 18 Division 8--Lease dealings 19 right to deal with lease and business assets 20 Lessee's 45.(1) A lessor under a retail shop lease must not obstruct or hinder the 21 lessee in dealing with the lease or other assets of the business carried on in 22 the leased shop by way of security. 23 Maximum penalty--40 penalty units. 24 (2) However, a lessee under a retail shop lease is not entitled to deal with 25 the lease or other assets of the business carried on in or from the leased 26 shop by way of security without the lessor and the prospective secured 27 creditor entering into an agreement about-- 28 (a) the times when the creditor or the creditor's agents may enter the 29 leased shop, before or after the end of the lease; and 30

 


 

s 46 36 s 46 Retail Shop Leases (b) the times by or when, and the way in which, the creditor, must or 1 may remove fixtures, fittings or equipment subject to the security 2 before or after the end of the lease; and 3 (c) the disposal of fixtures, fittings or equipment that are not 4 removed under the agreement; and 5 (d) the right of the creditor to enter into possession, or to place 6 someone else in possession, of the leased shop if the lessee 7 defaults under the security; and 8 (e) making good any damage caused to the leased shop because of 9 the creditor exercising the creditor's rights under the security; and 10 (f) matters incidental to the matters mentioned in paragraphs (a) to 11 (e). 12 (3) Despite sections 19 (Contracting out of Act prohibited) and 20 (Act 13 prevails over inconsistent leases), this section does not apply to a retail shop 14 lease if the lease declares that this section does not apply to it. 15 to renew leases 16 Options 46.(1) This section applies if a retail shop lease (the "existing lease") 17 does not provide for an option on the lessee's part to renew the lease. 18 (2) The lessee may, by written notice given to the lessor, ask the lessor to 19 renew the existing lease for a specified period. 20 (3) The notice must be given at least 2 months, but not longer than 21 1 year, before the end of the existing lease. 22 (4) On receiving the notice the lessor must, by written notice given to the 23 lessee, inform the lessee-- 24 (a) whether or not the lessor offers the lessee the option to renew the 25 existing lease; and 26 (b) if the lessor offers the lessee the option to renew the existing 27 lease--the period of the renewal and the proposed conditions of 28 the proposed renewed lease. 29 (5) The notice must be given within whichever is the later of-- 30 (a) 1 month after the lessor's receipt of the lessee's notice under 31 subsection (2); or 32

 


 

s 47 37 s 47 Retail Shop Leases (b) 6 months before the end of the existing lease. 1 (6) If the lessor offers the lessee the option to renew the existing lease 2 and the lessee wishes to accept the offer, the lessee must, by written notice 3 given to the lessor, accept the offer within 1 month after the lessee's 4 receiving the offer. 5 (7) On giving the acceptance of the offer, the lessee is entitled to be 6 granted a renewal of the existing lease on the conditions stated in the 7 lessor's offer to renew the lease if-- 8 (a) there exists no unremedied default on the lessee's part when the 9 acceptance is given; and 10 (b) no default happens during the balance of the lease's term, other 11 than a default-- 12 (i) that the lessor waives; or 13 (ii) for which the lessee is granted relief by the court under 14 section 124 of the Property Law Act 1974 (Restriction on 15 and relief against forfeiture). 16 (8) If the lessor fails to give notice under subsection (4) and there is no 17 agreement between the lessor and lessee about the lessee's holding over, the 18 lessee is entitled to occupy the leased shop for the term of 6 months from 19 the end of the existing lease on the same conditions as the existing lease 20 (other than the term of the existing lease and the lessee's entitlement under 21 this section). 22 (9) An agreement under the lease about the lessee's holding over is not 23 an agreement for the purposes of subsection (8). 24 (10) This section does not apply to a retail shop lease for a periodic 25 tenancy or a tenancy at will. 26 9--General 27 Division right to independent legal advice 28 Lessee's 47.(1) A lessee or prospective lessee under a retail shop lease must not 29 be compelled to use, or pay for (in whole or part), the services of a lawyer 30 nominated by the lessor. 31

 


 

s 48 38 s 50 Retail Shop Leases (2) If a person is compelled to use the services of a lawyer in 1 contravention of subsection (1), the lessor is liable to pay to the person the 2 amount paid by the person for the services. 3 liability for costs associated with preparation etc. of lease 4 Lessee's 48.(1) A lessee under a retail shop lease is not liable to pay any amount 5 for the lessor's legal or other expenses in relation to the preparation of the 6 lease. 7 (2) However, subsection (1) does not prevent a lessee under a retail shop 8 lease from being required to pay for-- 9 (a) survey fees associated with the registration of the lease; or 10 (b) the reasonable expenses incurred by the lessor in obtaining the 11 consent of the lessor's mortgagee to the lease; or 12 (c) stamp duty on the lease; or 13 (d) registration of the lease. 14 right to join or form commercial associations 15 Lessee's 49. A lessor must not include in a retail shop lease a provision preventing 16 or restricting the lessee from-- 17 (a) joining any chamber of commerce, retail trade association or 18 other commercial association; or 19 (b) forming or joining a lessees' association to promote a retail 20 shopping centre or for another purpose of mutual interest to 21 lessees. 22 Maximum penalty--40 penalty units. 23 tenancy disputes about assignments of leases 24 Retail 50.(1) A retail tenancy dispute exists between a lessor and lessee under a 25 retail shop lease if-- 26 (a) under the lease, the lessee may assign the lease only with the 27 lessor's consent; and 28

 


 

s 51 39 s 51 Retail Shop Leases (b) the lessee has given the lessor full particulars of a proposed 1 assignment of the lease and asked the lessor, in writing, to 2 consent to it; and 3 (c) the lessor has not given an answer to the lessee within 1 month 4 after the request and the particulars are given to the lessor. 5 (2) A retail tenancy dispute also exists between a lessor and lessee under 6 a retail shop lease if, in relation to consenting to an assignment of a retail 7 shop lease, the lessor-- 8 (a) purports or seeks to impose on the prospective assignee as lessee, 9 an obligation that is not the lessee's obligation under the lease; or 10 (b) purports or seeks to withdraw from the prospective assignee a 11 right conferred on the lessee under the lease; or 12 (c) purports or seeks to impose, as a condition for consenting to the 13 assignment, a condition that the lessee considers unreasonable. 14 (3) To remove any doubt, this section does not limit the circumstances in 15 which a retail tenancy dispute may exist between a lessor and lessee under a 16 retail shop lease. 17 ART 7--RETAIL SHOP LEASE TRADING HOURS 18 P 19 Definitions 51. In this Part-- 20 "core trading hours", for a retail shopping centre, means hours not 21 outside the allowable trading hours under the Trading (Allowable 22 Hours) Act 1990 that-- 23 (a) are stated in a resolution passed by the eligible lessees of the 24 centre under section 52 (Requirements for resolution) as the 25 hours retail shops in the centre may be required to open for 26 trading; or 27 (b) until a resolution is passed-- 28 (i) for existing leases--the lessees of the centre were required, 29

 


 

s 52 40 s 52 Retail Shop Leases immediately before the commencement of the Trading 1 (Allowable Hours) Amendment Act 1994, to keep the retail 2 shops open for trading; or 3 (ii) for other leases--the lessees of the centre are required by the 4 lessor to keep the retail shops open for trading. 5 "eligible lessee", for a retail shopping centre, means a lessee of a retail shop 6 in the centre (whether or not the lessee is a lessee under a retail shop 7 lease). 8 "eligible shop", for a retail shopping centre, means a retail shop in the 9 centre (whether or not the shop is leased under a retail shop lease). 10 "existing lease" means a retail shop lease current at the commencement of 11 the Trading (Allowable Hours) Amendment Act 1994. 12 for resolution 13 Requirements 52. A resolution is passed by the eligible lessees of a retail shopping 14 centre if-- 15 (a) the resolution is put to a vote of the eligible lessees by 1 or more 16 of the lessees or the lessor; and 17 (b) at least 7 days before the vote is taken, each eligible lessee is 18 given a written notice that includes-- 19 (i) the terms of the resolution; and 20 (ii) information about how and when the vote is to be taken; and 21 (c) voting is by secret ballot on the basis of 1 vote for each eligible 22 shop in the centre; and 23 (d) each eligible lessee is allowed to vote on that basis; and 24 (e) the resolution is supported by the lessees of at least 75% of the 25 eligible shops; and 26 (f) each person who casts a vote may scrutinise the counting of 27 votes. 28

 


 

s 53 41 s 54 Retail Shop Leases hours 1 Trading 53.(1) A lessor must not require a lessee under an existing lease to 2 extend the hours that, immediately before the commencement of the 3 Trading (Allowable Hours) Amendment Act 1994, the lessee was required 4 to keep the retail shop open for trading. 5 Maximum penalty--100 penalty units. 6 (2) However, a retail shop lease may include a condition requiring the 7 lessee to keep the premises open for trading in the core trading hours for the 8 retail shopping centre. 9 (3) A condition of a retail shop lease that purports to impose on the 10 lessee an obligation to open the premises for trading outside the core trading 11 hours for the retail shopping centre is void. 12 (4) However, if the term is in an existing lease, it is void only to the 13 extent that it requires the lessee to open the premises for trading outside the 14 core trading hours for the retail shopping centre. 15 (5) A lessee under a retail shop lease (the "first lessee") is not liable 16 under the first lessee's lease for any additional outgoings of the lessor only 17 because an eligible lessee's shop is open for trading outside the core trading 18 hours when the first lessee's shop is not open for trading. 19 (6) Subsection (5) applies despite any condition in the first lessee's lease. 20 ART 8--RETAIL TENANCY DISPUTE 21 P RESOLUTION 22 1--Preliminary 23 Division rights under this Part preserved 24 Parties' 54. To remove any doubt, if a provision of a retail shop lease requires or 25 permits a dispute under or about the lease to be referred to arbitration or be 26 heard by any court or tribunal, the provision does not limit a party's rights 27 under this Part. 28

 


 

s 55 42 s 57 Retail Shop Leases Division 2--Mediation of retail tenancy disputes 1 of retail tenancy disputes 2 Lodgment 55.(1) A party to a retail tenancy dispute that is within a mediator's 3 jurisdiction under section 97 (Mediators' jurisdiction) may lodge notice of 4 the dispute with the chief executive. 5 (2) The notice ("dispute notice") must be in the approved form and 6 accompanied by the fee prescribed by regulation. 7 executive to act on dispute notice 8 Chief 56.(1) Within 7 days after the dispute notice is lodged, the chief executive 9 must-- 10 (a) nominate a mediator to mediate the retail tenancy dispute; and 11 (b) give written notice to the parties to the dispute of-- 12 (i) the mediator nominated to mediate the dispute; and 13 (ii) the time, date and place of the mediation conference to be 14 conducted by the mediator. 15 (2) The notice under subsection (1)(b) must be given at least 7 days 16 before the mediation conference. 17 right of representation 18 Limited 57. At the mediation conference, each party to the retail tenancy 19 dispute-- 20 (a) must conduct the party's own case; and 21 (b) may be represented by an approved agent only if-- 22 (i) the party is a corporation; or 23 (ii) the mediator is satisfied an agent should be permitted to 24 represent the party. 25

 


 

s 58 43 s 62 Retail Shop Leases to be held in private 1 Conference 58. The mediation conference is not open to the public. 2 attendance at conference not compellable 3 Parties 59. A party to the retail tenancy dispute cannot be compelled to attend the 4 mediation conference. 5 to mediation conference 6 Parties 60.(1) The mediator may allow a person to take part in the mediation 7 conference if the mediator is satisfied the person has a sufficient interest in 8 the resolution of the retail tenancy dispute. 9 (2) However, the person does not become a party to the dispute. 10 agreements 11 Mediation 61.(1) This section applies if the parties to the retail tenancy dispute reach 12 an agreement on the solution of the dispute. 13 (2) The agreement (the "mediation agreement") must be put into 14 writing and signed by or for the parties. 15 (3) The mediator must give a copy of the signed agreement to the chief 16 executive as soon as practicable after it is signed. 17 official record of mediation conference 18 No 62.(1) A person must not make an official record of anything said at a 19 mediation conference. 20 Maximum penalty--40 penalty units. 21 (2) However, the mediator may make notes of the mediation conference 22 the mediator considers appropriate. 23

 


 

s 63 44 s 64 Retail Shop Leases Division 3--Reference of retail tenancy disputes to tribunal 1 of dispute--by mediator 2 Reference 63.(1) This section applies if-- 3 (a) a retail tenancy dispute is within a tribunal's jurisdiction3 and-- 4 (i) the parties cannot reach a mediated solution to the dispute; or 5 (ii) a party to the dispute does not attend the mediation 6 conference for the dispute; or 7 (iii) the dispute is not settled within 4 months after the dispute 8 notice is lodged; and 9 (b) the retail shop lease has not ended (whether by expiry, surrender 10 or termination) more than 4 months before the dispute notice was 11 lodged. 12 (2) The mediator must, by written notice given to the chief executive, 13 promptly refer the dispute to the chief executive. 14 of dispute--by party 15 Reference 64.(1) In this section-- 16 "mediation agreement" includes a mediation agreement under section 26 17 (Mediation agreements) of the former Act. 18 (2) A party to a retail tenancy dispute may, by notice given to the chief 19 executive in the approved form, refer the dispute to the chief executive if-- 20 (a) any of the following provisions apply-- 21 (i) the party claims that another party to a mediation agreement 22 has not complied with the agreement within the time 23 specified in it or, if no time is specified, within 2 months 24 after the agreement is signed; 25 (ii) a mediator refuses to refer the dispute to the chief executive 26 because the mediator is of the opinion that the dispute is not 27 within a tribunal's jurisdiction; 28 3 See section 109 (Tribunals' jurisdiction)

 


 

s 65 45 s 66 Retail Shop Leases (iii) a court has ordered that a proceeding started in the court for 1 the dispute be removed to a tribunal;4 and 2 (b) the retail shop lease has not ended (whether by expiry, surrender 3 or termination) more than 4 months before the dispute notice was 4 lodged. 5 executive to refer dispute to tribunal 6 Chief 65. Within 14 days after a retail tenancy dispute is referred to the chief 7 executive, the chief executive must-- 8 (a) appoint a tribunal from the tribunal panel to hear the dispute; and 9 (b) give written notice to the tribunal panel members of their 10 appointment to hear the dispute; and 11 (c) give written notice to the parties to the dispute of the appointment 12 and composition of the tribunal to hear the dispute. 13 Division 4--Retail tenancy disputes hearings 14 Subdivision 1--Directions hearings 15 may hold directions hearing 16 Chairperson 66.(1) Before the retail tenancy dispute is heard by the tribunal, the 17 chairperson may decide to hold a directions hearing. 18 (2) If the chairperson decides to hold a directions hearing, the chairperson 19 must give reasonable written notice to the parties to the dispute of the time, 20 date and place of the directions hearing. 21 (3) The provisions of this Division (other than section 71(2) and (3) 22 (Limited right of representation)) about the conduct of, and procedure at, a 23 tribunal's hearing of a retail tenancy dispute and the tribunal's powers at the 24 hearing apply, with the necessary changes, to the directions hearing. 25 (4) At the directions hearing-- 26 4 See section 111(1) (Transfer of hearings between tribunals and courts).

 


 

s 67 46 s 70 Retail Shop Leases (a) the tribunal is constituted by the chairperson; and 1 (b) the tribunal may make the decisions and give the directions it 2 considers appropriate. 3 (5) Without limiting subsection (4), the tribunal may make decisions and 4 give directions about-- 5 (a) questions of law; and 6 (b) the tribunal's jurisdiction; and 7 (c) discovery and inspection of documents; and 8 (d) the parties' representation at the dispute hearing. 9 Subdivision 2--Tribunal's hearing 10 member 11 Presiding 67. The chairperson is to preside at the tribunal's hearing of the retail 12 tenancy dispute. 13 14 Venues 68. The tribunal may sit at the times and places the chairperson decides. 15 to be held in private 16 Hearing 69.(1) The tribunal's hearing of the retail tenancy dispute is not open to 17 the public. 18 (2) However, a person may attend the tribunal's hearing with the 19 agreement of the tribunal and the parties to the dispute. 20 before tribunal 21 Appearances 70. The following persons are entitled to appear at the tribunal's hearing 22 of the retail tenancy dispute-- 23 (a) the parties to the dispute; 24 (b) a person granted leave to appear by the tribunal. 25

 


 

s 71 47 s 73 Retail Shop Leases right of representation 1 Limited 71.(1) At the tribunal's hearing of the retail tenancy dispute, a party to the 2 dispute may be represented by an approved agent. 3 (2) However, a party to the dispute may not be represented at the 4 tribunal's hearing by a lawyer or professional advocate without the other 5 party's agreement if the dispute-- 6 (a) does not involve the payment of an amount; or 7 (b) involves the payment of an amount less than the prescribed 8 amount within the meaning of the Small Claims Tribunals Act 9 1973. 10 (3) In addition, if, at a directions hearing for the dispute, the tribunal 11 made a decision about a party's representation at the tribunal's hearing, the 12 party may not be represented at the hearing by anyone else without the other 13 party's agreement. 14 15 Procedure 72.(1) When conducting the hearing, the tribunal must-- 16 (a) observe natural justice; and 17 (b) act as quickly, and with as little formality and technicality, as is 18 consistent with a fair and proper consideration of the issues 19 before it. 20 (2) In conducting the hearing, the tribunal-- 21 (a) is not bound by the rules of evidence; and 22 (b) may inform itself of any matter in the way it considers 23 appropriate; and 24 (c) may decide the procedures to be followed for the hearing. 25 (3) However, the tribunal must comply with this subdivision and any 26 procedural rules prescribed by regulation. 27 of dispute 28 Amendment 73.(1) The tribunal may at any stage of the hearing of the retail tenancy 29

 


 

s 74 48 s 77 Retail Shop Leases dispute amend the particulars of the dispute in the way it considers 1 appropriate-- 2 (a) if asked by the party who lodged the dispute notice; or 3 (b) on its own initiative if the parties to the dispute agree. 4 (2) For this Act, the amended dispute is taken to be the dispute. 5 to be decided by majority of tribunal 6 Questions 74.(1) A question before the tribunal must be decided by a majority of 7 the tribunal members. 8 (2) However, a question of law must be decided by the chairperson. 9 to keep records of proceedings 10 Tribunals 75.(1) The tribunal must keep a record of its proceedings. 11 (2) The record may be kept in the way the tribunal considers appropriate. 12 of tribunal 13 Powers 76.(1) At the hearing, the tribunal may-- 14 (a) require a person to give evidence on oath and, for that 15 purpose, the chairperson may administer an oath; and 16 (b) proceed in the absence of a party to the retail tenancy dispute; 17 and 18 (c) by written notice ("attendance notice"), require a person to 19 attend the hearing at a specified time, date and place-- 20 (i) to give evidence; or 21 (ii) to produce a specified document or thing. 22 (2) The tribunal may adjourn the hearing from time to time. 23 of documents 24 Inspection 77.(1) If a document or thing is produced to the tribunal at the hearing, 25 the tribunal may-- 26

 


 

s 78 49 s 79 Retail Shop Leases (a) inspect the document or thing; and 1 (b) make copies of, photograph, or take extracts from, the document 2 or thing if it is relevant to the hearing. 3 (2) The tribunal may also take possession of the document or thing, and 4 keep it while it is necessary for the hearing. 5 (3) While it keeps a document or thing, the tribunal must permit a person 6 otherwise entitled to possession of the document or thing to inspect, make 7 copies of, photograph, or take extracts from, the document or thing, at the 8 reasonable time, date and place the tribunal decides. 9 10 Offences--hearings 78.(1) A person served with an attendance notice must not-- 11 (a) fail, without reasonable excuse, to attend as required by the notice; 12 or 13 (b) fail, without reasonable excuse, to continue to attend as required 14 by the chairperson until excused from further attendance. 15 Maximum penalty--40 penalty units. 16 (2) A person appearing as a witness at the hearing must not-- 17 (a) fail to take an oath or make an affirmation when required by the 18 chairperson; or 19 (b) fail, without reasonable excuse, to answer a question the person is 20 required to answer by a tribunal member; or 21 (c) fail, without reasonable excuse, to produce a document or thing 22 the person is required to produce by an attendance notice. 23 Maximum penalty--40 penalty units. 24 incrimination 25 Self 79. It is a reasonable excuse for a person to fail to answer a question or to 26 produce a document if answering the question or producing the document 27 might tend to incriminate the person. 28

 


 

s 80 50 s 82 Retail Shop Leases or misleading information 1 False 80.(1) A person must not-- 2 (a) state anything to the tribunal that the person knows is false or 3 misleading in a material particular; or 4 (b) omit from a statement made to the tribunal anything without 5 which the statement is, to the person's knowledge, misleading in 6 a material particular. 7 Maximum penalty--40 penalty units. 8 (2) A complaint against a person for an offence against subsection (1)(a) 9 or (b) is sufficient if it states the statement made was false or misleading to 10 the person's knowledge. 11 or misleading documents 12 False 81.(1) A person must not give to the tribunal a document containing 13 information the person knows is false, misleading or incomplete in a 14 material particular. 15 Maximum penalty--40 penalty units. 16 (2) Subsection (1) does not apply to a person who, when giving the 17 document-- 18 (a) informs the tribunal, to the best of the person's ability, how it is 19 false, misleading or incomplete; and 20 (b) gives the correct information to the tribunal if the person has, or 21 can reasonably obtain, the correct information. 22 (3) A complaint against a person for an offence against subsection (1) is 23 sufficient if it states the document was false, misleading or incomplete to 24 the person's knowledge. 25 of tribunal 26 Contempt 82. A person must not-- 27 (a) insult the tribunal or a tribunal member; or 28 (b) deliberately interrupt the tribunal's hearing of the retail tenancy 29

 


 

s 83 51 s 83 Retail Shop Leases dispute; or 1 (c) create or continue or join in creating or continuing, a disturbance 2 in or near a place where the tribunal is conducting the hearing; or 3 (d) do anything that would be contempt of court if the tribunal were a 4 Judge acting judicially. 5 Maximum penalty--100 penalty units. 6 5--Provisions about tribunal orders 7 Division orders 8 Tribunals' 83.(1) The tribunal may make the orders the tribunal considers to be just 9 to resolve the retail tenancy dispute. 10 (2) Without limiting subsection (1), the tribunal may make any 1 or 11 more of the following orders-- 12 (a) an order for a party to the dispute to do, or not to do, anything 13 (an "enforcement order"); 14 (b) an order requiring a party to the dispute to pay an amount 15 (including an amount of compensation) to a specified person 16 (a "payment order"); 17 (c) an order that a party to the dispute is not required to pay an 18 amount to a specified person; 19 (d) an order setting aside the mediation agreement between the parties 20 to the dispute; 21 (e) an order that an item, or part of an item, of the lessor's outgoings 22 for the retail shopping centre or leased building in which the 23 leased shop is situated was or was not reasonably incurred in, or 24 directly attributable to, the operations, maintenance or repair of the 25 centre or building; 26 (f) if the dispute is about the payment of compensation by the lessor 27 to the lessee under the retail shop lease and the lease contains 28 provision for the amount of compensation payable or a formula 29 to calculate the amount of compensation payable--an order that 30 the amount of compensation payable under the lease is 31

 


 

s 84 52 s 85 Retail Shop Leases reasonable; 1 (g) an order giving effect to a settlement agreed on by the parties to 2 the dispute. 3 (3) An order may specify a time for compliance with it. 4 (4) If the person against whom the order is made is not present when the 5 order is made, the chief executive must serve a copy of the order on the 6 person as soon as practicable after it is made. 7 of certain tribunal orders 8 Enforcement 84.(1) This section applies if the tribunal makes an enforcement order. 9 (2) The person in whose favour the order is made may enforce the order 10 by-- 11 (a) filing in the Supreme Court's registry-- 12 (i) a copy of the order certified by the chief executive to be a 13 true copy; and 14 (ii) the person's affidavit about the failure of the person against 15 whom the order is made to comply with the order; and 16 (b) serving a copy of each of the documents mentioned in 17 paragraph (a) on the person against whom the order was made. 18 (3) If the registrar of the Supreme Court is satisfied there has been, and 19 still exists, a failure to comply with the order, the registrar must endorse a 20 certificate of noncompliance on the copy of the order. 21 (4) The endorsed order is taken to be a properly entered order of the 22 Supreme Court and may be enforced accordingly. 23 (5) A court fee is not payable for the filing or endorsement of the order. 24 requiring payments 25 Orders 85.(1) In this section-- 26 "appropriate court" for an order to which this section applies means the 27 court having jurisdiction to order the payment of the amount required 28 to be paid by the order. 29

 


 

s 86 53 s 87 Retail Shop Leases (2) This section applies if the tribunal makes a payment order. 1 (3) The order may be made to take effect immediately or on the failure of 2 a party to comply with another order made by the tribunal. 3 (4) The person to whom payment is to be made under the order may 4 enforce the order-- 5 (a) by filing in the appropriate court's registry nearest the place where 6 the person ordered to make the payment lives or carries on 7 business-- 8 (i) a copy of the order certified by the chief executive to be a 9 true copy; and 10 (ii) the person's affidavit about the failure to pay the amount 11 under the order; and 12 (b) by serving a copy of each of the documents mentioned in 13 paragraph (a) on the person against whom the order was made. 14 (5) If the registrar of the court is satisfied there has been, and still exists, 15 a failure to comply with the order, the registrar must endorse a certificate of 16 noncompliance on the copy of the order. 17 (6) The endorsed order is taken to be a properly entered judgment of the 18 court and may be enforced accordingly. 19 (7) A court fee is not payable for the filing or endorsement of the order. 20 of tribunal to be complied with 21 Orders 86. A person must not, without reasonable excuse, fail to comply with 22 the tribunal's order. 23 Maximum penalty--100 penalty units. 24 order final and binding 25 Tribunal's 87. The tribunal's order is final and binding on each party to the retail 26 tenancy dispute, whether or not the party has appeared or been represented 27 at the tribunal's hearing. 28

 


 

s 88 54 s 90 Retail Shop Leases right to question tribunal's hearing and order 1 Restricted 88. The tribunal's hearing of the retail tenancy dispute and the tribunal's 2 order must not be questioned in a proceeding other than a proceeding based 3 solely on either or both of the following grounds-- 4 (a) the tribunal had or has no jurisdiction, or has exceeded its 5 jurisdiction, in the hearing or in making the order; 6 (b) there has been a denial of natural justice. 7 Division 6--Renewal of retail tenancy disputes 8 to renew dispute 9 Application 89. (1) This section applies if-- 10 (a) a tribunal makes an order for a retail tenancy dispute (the 11 "original order"); and 12 (b) the order is not complied with. 13 (2) The person in whose favour the original order is made may apply to 14 renew the dispute. 15 (3) The application must be made to the chief executive in the approved 16 form. 17 of dispute 18 Renewal 90. Within 14 days after the application is properly made, the chief 19 executive must renew the retail tenancy dispute by-- 20 (a) appointing a tribunal from the tribunal panel to hear the renewed 21 dispute; and 22 (b) giving written notice to the tribunal panel members of their 23 appointment to hear the renewed dispute; and 24 (c) giving written notice to the parties of-- 25 (i) the renewal of the dispute; and 26 (ii) the appointment and composition of the tribunal to hear the 27 dispute. 28

 


 

s 91 55 s 94 Retail Shop Leases 7--General 1 Division to pay own costs 2 Parties 91. Each party to a retail tenancy dispute must bear the party's own costs 3 of the tribunal's hearing of the dispute. 4 to witness 5 Allowance 92. A witness who appears before a tribunal in the conduct of the hearing 6 of a retail tenancy dispute is entitled to the allowance prescribed by 7 regulation for attendance at the hearing or, if no allowance is prescribed, the 8 reasonable allowance decided by the chairperson. 9 of disputes 10 Withdrawal 93.(1) A person may, by written notice given to the chief executive, 11 withdraw a retail tenancy dispute lodged by the person. 12 (2) The notice may be given before or after a mediator or tribunal has 13 started mediating or hearing the dispute. 14 (3) If the chief executive has nominated a mediator or appointed a 15 tribunal for the dispute, the chief executive must advise the mediator or 16 tribunal of the withdrawal as soon as practicable after receipt of the notice. 17 of other jurisdictions 18 Exclusion 94.(1) On and after the lodgment of a dispute notice for a retail tenancy 19 dispute, the dispute must not be referred to arbitration or heard by any court. 20 (2) Subsection (1) does not apply if-- 21 (a) the dispute is withdrawn;5 or 22 (b) a proceeding about the issue in dispute was started in a court 23 before the dispute notice was lodged and the proceeding has not 24 been removed to a tribunal;6 or 25 5 See section 93 (Withdrawal of disputes). 6 See section 111(1) (Transfer of hearings between tribunals and courts).

 


 

s 95 56 s 97 Retail Shop Leases (c) an application for an order in the nature of an injunction about the 1 issue in dispute is made to a court; or 2 (d) a mediator or tribunal refuses to mediate or hear the dispute 3 because the mediator or tribunal is of the opinion the dispute is 4 not within the jurisdiction of a mediator or tribunal; or 5 (e) the mediator cannot reach a solution to the dispute and a tribunal 6 does not have jurisdiction to hear the dispute. 7 (3) For subsection (2)(b), a proceeding is taken to have been started 8 before a court if the lessor has-- 9 (a) served on the lessee a notice under section 124 of the Property 10 Law Act 1974 (Restriction on and relief against forfeiture); or 11 (b) given to the lessee a notice under section 131 of the Property Law 12 Act 1974 (Form and contents of notice). 13 PART 9--ADMINISTRATION 14 1--Mediators 15 Division 16 Mediators 95. The Minister may appoint the number of persons the Minister 17 considers necessary to be mediators. 18 function 19 Mediators' 96. A mediator's function is to seek to resolve, by mediation, retail 20 tenancy disputes within a mediator's jurisdiction. 21 jurisdiction 22 Mediators' 97.(1) A mediator has jurisdiction to mediate retail tenancy disputes, 23 other than a retail tenancy dispute-- 24 (a) about an issue between the parties that-- 25

 


 

s 98 57 s 98 Retail Shop Leases (i) is the subject of arbitration; or 1 (ii) has been the subject of an award (interim or final) in an 2 arbitration proceeding; or 3 (iii) is before, or has been decided by, a court; or 4 (b) about-- 5 (i) arrears of rent under a retail shop lease; or 6 (ii) the amount of rent payable under a retail shop lease; or 7 (iii) the amount of a lessor's outgoings under a retail shop lease; 8 or 9 (c) under a retail shop lease for the carrying on of the business of a 10 service station if the Petroleum Retail Marketing Franchise Act 11 1980 (Cwlth) applies to the carrying on of the business under a 12 franchise agreement within the meaning of that Act. 13 (2) For subsection (1)(a)(i), a retail tenancy dispute is only the subject of 14 arbitration if the arbitration proceeding has started. 15 (3) However, a mediator has jurisdiction to mediate a retail tenancy 16 dispute about-- 17 (a) the procedure for the determination of rent payable under a retail 18 shop lease, but not the actual amount of the rent; or 19 (b) the basis on which lessor's outgoings are payable by, and the 20 procedure for charging lessor's outgoings to, a lessee under a 21 retail shop lease, but not the actual amount of the outgoings; or 22 (c) whether an item, or part of an item, of the lessor's outgoings for 23 the retail shopping centre or leased building in which a leased 24 shop is situated was reasonably incurred in, or directly attributable 25 to, the operations, maintenance or repair of the centre or building. 26 of appointment 27 Duration 98.(1) A mediator must be appointed for a term not longer than 3 years. 28 (2) A mediator may resign by signed notice of resignation given to the 29 Minister. 30

 


 

s 99 58 s 102 Retail Shop Leases of appointment 1 Conditions 99.(1) A mediator who is not a member of the public service is to be 2 paid the remuneration and allowances decided by the Governor in Council. 3 (2) A mediator holds office on the conditions not provided in this Act as 4 are decided by the Minister. 5 from office 6 Removal 100. The Minister may remove a mediator from office, by written notice 7 given to the mediator, if the Minister is satisfied the mediator-- 8 (a) is incapable of properly discharging the functions of a mediator; 9 or 10 (b) is unfit to hold the office. 11 reports 12 Annual 101.(1) Within 2 months after the end of each financial year, a mediator 13 must report to the chief executive on the mediator's discharge of the 14 function in the year. 15 (2) The report must include details of all matters that-- 16 (a) the mediator becomes aware of during the discharge of the 17 mediator's function; and 18 (b) significantly affect relationships between lessors and lessees 19 under retail shop leases. 20 Division 2--Retail shop leases tribunals 21 Subdivision 1--Tribunal panel and members 22 of members of tribunal panel 23 Appointment 102. The Governor in Council may appoint as members of a panel of 24 retail shop lease tribunal members (the "tribunal panel")-- 25 (a) a person who-- 26

 


 

s 103 59 s 106 Retail Shop Leases (i) has been a Supreme or District Court Judge; or 1 (ii) is a lawyer of at least 5 years' standing; and 2 (b) the number of representatives of lessors and lessees under retail 3 shop leases the Governor in Council considers necessary. 4 of appointment 5 Duration 103.(1) A tribunal panel member must be appointed for a term not 6 longer than 3 years. 7 (2) A tribunal panel member may resign by signed notice of resignation 8 given to the Minister. 9 of appointment 10 Conditions 104.(1) A tribunal panel member is to be paid the remuneration and 11 allowances decided by the Governor in Council. 12 (2) A tribunal panel member holds office on the conditions not provided 13 in this Act as are decided by the Governor in Council. 14 from office 15 Removal 105. The Governor in Council may remove a tribunal panel member 16 from office, by written notice given to the member, if the member-- 17 (a) is incapable of properly discharging the functions of a tribunal 18 member; or 19 (b) is unfit to hold the office. 20 2--Composition, functions, jurisdiction and powers of 21 Subdivision tribunals 22 of retail shop lease tribunals 23 Composition 106. A tribunal is to consist of the following tribunal members-- 24 (a) the person appointed under section 102(a) (Appointment of 25 members of tribunal panel); and 26

 


 

s 107 60 s 109 Retail Shop Leases (b) a representative of lessors under retail shop leases; and 1 (c) a representative of lessees under retail shop leases. 2 3 Chairperson 107. The tribunal member mentioned in section 106(a) (Composition of 4 retail shop lease tribunals) is the chairperson of each tribunal. 5 function 6 Tribunals' 108. A tribunal's function is to hear retail tenancy disputes that-- 7 (a) are within a tribunal's jurisdiction; and 8 (b) it is appointed to hear. 9 jurisdiction 10 Tribunals' 109.(1) A tribunal has jurisdiction to hear retail tenancy disputes, other 11 than a retail tenancy dispute-- 12 (a) about an issue between the parties that-- 13 (i) is the subject of arbitration; or 14 (ii) has been the subject of an award (interim or final) in an 15 arbitration proceeding; or 16 (iii) is before, or has been decided by, a court; or 17 (b) about-- 18 (i) arrears of rent under a retail shop lease; or 19 (ii) the amount of rent payable under a retail shop lease; or 20 (iii) the amount of a lessor's outgoings under a retail shop lease; 21 or 22 (c) if the amount, value or damages in dispute is more than the 23 monetary limit of a District Court within the meaning of 24 section 66 of the District Courts Act 1967 (District Courts' civil 25 jurisdiction); or 26 (d) under a retail shop lease for the carrying on of the business of a 27

 


 

s 110 61 s 111 Retail Shop Leases service station. 1 (2) For subsection (1)(a)(i), a retail tenancy dispute is only the subject of 2 arbitration if the arbitration proceeding has started. 3 (3) However, a tribunal has jurisdiction to hear a retail tenancy dispute 4 about-- 5 (a) the procedure for the determination of rent payable under a retail 6 shop lease, but not the actual amount of the rent; or 7 (b) the basis on which lessor's outgoings are payable by, and the 8 procedure for charging lessor's outgoings to, a lessee under a 9 retail shop lease, but not the actual amount of the outgoings; or 10 (c) whether an item, or part of an item, of the lessor's outgoings for 11 the retail shopping centre or leased building in which a leased 12 shop is situated was reasonably incurred in, or directly attributable 13 to, the operations, maintenance or repair of the centre or building. 14 general powers 15 Tribunals' 110.(1) A tribunal may do all things necessary or convenient to be done 16 for, or in relation to, the performance of its function. 17 (2) Without limiting subsection (1), a tribunal has the powers conferred 18 on it by this Act. 19 (3) Without limiting subsection (1), a tribunal may make, or cause to be 20 made, the investigations it considers necessary for its hearings, including, 21 for example, investigations about current market management costs and 22 fees for the retail shopping industry. 23 of hearings between tribunals and courts 24 Transfer 111.(1) If a proceeding about a retail tenancy dispute is started in a court 25 and a tribunal has jurisdiction to hear the dispute, the court may, on the 26 application of a party, order that the proceeding be removed to a tribunal. 27 (2) If a tribunal is of the opinion that a retail tenancy dispute being, or 28 about to be, heard by the tribunal should be heard by a court, the tribunal 29 may order that the dispute be removed, in whole or part, to a court. 30

 


 

s 112 62 s 113 Retail Shop Leases Subdivision 3--Annual reports 1 on discharge of tribunals' function 2 Reports 112.(1) Within 2 months after the end of each financial year, the 3 chairperson must give a report to the chief executive on each tribunal's 4 discharge of its function throughout the year. 5 (2) The report must include details of all matters that-- 6 (a) the chairperson becomes aware of during the discharge of the 7 tribunals' function; and 8 (b) significantly affect relationships between lessors and lessees 9 under retail shop leases. 10 3--Confidentiality, privilege and immunity 11 Division and tribunal members to maintain secrecy 12 Mediators 113.(1) A mediator or tribunal member must not disclose information 13 coming to the knowledge of the mediator or member during the dispute 14 resolution process. 15 Maximum penalty--100 penalty units. 16 (2) However, a mediator or tribunal member may disclose 17 information-- 18 (a) with the agreement of all parties to the dispute resolution process; 19 or 20 (b) for statistical purposes without revealing the identity of any 21 person about whom the information is relevant; or 22 (c) for an inquiry or proceeding about an offence or other misconduct 23 that happens during the dispute resolution process; or 24 (d) under a requirement under an Act. 25

 


 

s 114 63 s 116 Retail Shop Leases protection and immunity allowed 1 Ordinary 114.(1) A mediator or tribunal member has, in the performance of the 2 mediator's or member's function, the same protection and immunity as a 3 Supreme Court Judge carrying out the functions of a Judge. 4 (2) A person who is-- 5 (a) a party, or the party's agent, appearing at a dispute resolution 6 process for a retail tenancy dispute; or 7 (b) a witness attending a hearing of a retail tenancy dispute by a 8 tribunal; 9 has the same protection and immunity the person would have if the dispute 10 were in the Supreme Court. 11 (3) A document produced at, or used for, a dispute resolution process 12 has the same protection during the process it would have if produced before 13 the Supreme Court. 14 made during dispute resolution process 15 Admissions 115.(1) Evidence of anything said in a mediation conference for a retail 16 tenancy dispute is not admissible in any proceeding before any court or a 17 tribunal. 18 (2) Evidence of anything said in a tribunal's hearing of a retail tenancy 19 dispute is not admissible in any proceeding before any court. 20 4--General 21 Division 22 Register 116.(1) The chief executive must keep a register of mediators, tribunal 23 panel members and retail tenancy disputes. 24 (2) The register of retail tenancy disputes must contain the following 25 details for each dispute-- 26 (a) the date the dispute notice was lodged; 27 (b) the names of the parties; 28

 


 

s 117 64 s 119 Retail Shop Leases (c) the subject matter of the dispute; 1 (d) the results of the mediation process; 2 (e) the results of the tribunal's hearing, including any tribunal order. 3 (3) The chief executive must-- 4 (a) keep the register open for inspection by members of the public 5 during office hours on business days at the department's head 6 office; and 7 (b) permit a person to take extracts from the register or, on payment 8 of the appropriate fee by a person, give the person a copy of the 9 register or part of it. 10 (4) The fee for a copy of the register or part of it is the amount that the 11 chief executive considers to be reasonable is not more than the reasonable 12 cost of making the copy. 13 14 Delegations 117.(1) The Minister may delegate the Minister's powers under this Act 15 to an officer of the public service. 16 (2) The chief executive may delegate the chief executive's powers under 17 this Act to an officer of the public service. 18 executive may approve forms 19 Chief 118. The chief executive may approve forms for use under this Act. 20 executive's responsibility 21 Chief 119. For the efficient and proper administration of this Act, the chief 22 executive-- 23 (a) is responsible for ensuring lessors and lessees under retail shop 24 leases are advised about the practices and procedures of the 25 department, mediators and tribunals; and 26 (b) may advise lessors and lessees under retail shop leases about 27 potential retail tenancy disputes. 28

 


 

s 120 65 s 122 Retail Shop Leases PART 10--MISCELLANEOUS 1 provisions 2 Evidentiary 120.(1) This section applies to a proceeding for an offence against this 3 Act. 4 (2) A signature purporting to be that of the chief executive is evidence of 5 the signature it purports to be. 6 (3) A certificate purporting to be signed by the chief executive about a 7 tribunal's order is evidence of the matters stated in it. 8 (4) A document purporting to be a copy of a notice required or 9 authorised by this Act to be given is evidence of the particulars in the 10 original notice of which it purports to be a copy. 11 12 Regulations 121.(1) The Governor in Council may make regulations under this Act. 13 (2) A regulation may be made about-- 14 (a) the fees payable under this Act; and 15 (b) the practices and procedures of the dispute resolution process; and 16 (c) the enforcement of tribunal orders. 17 (3) A regulation may create offences and prescribe penalties of not more 18 than 50 penalty units for the offences. 19 of Act 20 Review 122.(1) The Minister must carry out reviews of the operation of this Act 21 to decide whether its provisions remain appropriate. 22 (2) A review must be carried out within 5 years after the commencement 23 of this Act and afterwards at intervals of not more than 5 years after the 24 previous review. 25 (3) The Minister must prepare a report on each review and table a copy 26 of the report in the Legislative Assembly as soon as practicable after it is 27 prepared. 28

 


 

s 123 66 s 126 Retail Shop Leases ART 11--REPEALS AND CONSEQUENTIAL 1 P AMENDMENTS 2 repealed 3 Acts 123. The following Acts are repealed-- 4 · Retail Shop Leases Act 1984 No. 18 5 · Retail Shop Leases Act Amendment Act 1985 No. 33 6 · Retail Shop Leases Act Amendment Act 1988 No. 43 7 · Retail Shop Leases Act Amendment Act 1989 No. 117 8 · Retail Shop Leases Act Amendment Act 1990 No. 7. 9 amended 10 Act 124. The Act mentioned in the Schedule is amended as specified in the 11 Schedule. 12 PART 12--SAVINGS AND TRANSITIONAL 13 PROVISIONS 14 15 Definition 125. In this Part-- 16 "commencing day" means the day on which this Part commences. 17 regulations 18 Transitional 126.(1) The Governor in Council may make regulations about any matter 19 for which-- 20 (a) it is necessary or convenient to facilitate the transition from the 21 operation of the former Act to the operation of this Act; and 22 (b) this Act does not make provision or enough provision. 23

 


 

s 127 67 s 129 Retail Shop Leases (2) A regulation may be given retrospective operation to a date not earlier 1 than the commencing day. 2 of disputes to mediator 3 References 127.(1) If, before the commencing day, a reference of a retail tenancy 4 dispute was started under the former Act but a notice of hearing of the 5 reference was not given under the former Act, a dispute notice is taken to 6 have been lodged. 7 (2) If, before the commencing day, a reference of a retail tenancy dispute 8 was started under the former Act and a notice of hearing of the reference 9 was given under the former Act, a hearing of the reference may be started, 10 continued or finished as if the former Act had not been repealed. 11 of disputes to tribunal 12 References 128.(1) If, before the commencing day, a retail tenancy dispute has been 13 referred to a tribunal, a hearing of the dispute may be started, continued or 14 finished as if the former Act had not been repealed. 15 (2) Sections 63 (Reference of dispute--by mediator) and 64 (Reference 16 of dispute--by party) apply to a retail tenancy dispute that-- 17 (a) before the commencing day was referred to a mediator under the 18 former Act; and 19 (b) after the commencing day would have been required to have been 20 referred to a tribunal under the former Act had this Act not been 21 enacted. 22 of Part 23 Expiry 129. This Part expires 6 months after the commencing day. 24 25

 


 

68 Retail Shop Leases CHEDULE 1 ¡S ACT AMENDED 2 section 124 3 VALUERS REGISTRATION ACT 1992 4 ´ 1. Section 3-- 5 insert-- 6 ` "specialist retail valuer" means a person whose name is recorded on the 7 list of specialist retail valuers kept under section 42A (List of specialist 8 retail valuers).'. 9 2. Part 3, heading-- 10 omit, insert-- 11 `PART 3--REGISTRATION 12 `Division 1--Registered valuers'. 13 3. After section 42-- 14 insert-- 15 `Division 2--Specialist retail valuers 16 `List of specialist retail valuers 17 `42A.(1) The Board must keep a list of specialist retail valuers. 18 `(2) The list must be kept separate from the register. 19

 


 

69 Retail Shop Leases SCHEDULE (continued) `Valuers may apply to be recorded as specialist retail valuers 1 `42B.(1) An individual who is a registered valuer may apply to the Board 2 to be recorded as a specialist retail valuer. 3 `(2) The application must be in the form approved by the Board and 4 accompanied by the fee prescribed by regulation. 5 `Grant of application 6 `42C.(1) If the Board is satisfied the applicant has enough experience in 7 retail rental valuation, it must-- 8 (a) approve the application and record the applicant's name on the list 9 of specialist retail valuers; and 10 (b) give written notice to the applicant of the recording of the 11 applicant's name on the list. 12 `(2) However, the Board may limit the applicant's authority to make 13 determinations of current market rents under this Act to particular areas of 14 the State. 15 `(3) If the Board limits the applicant's authority, the Board must-- 16 (a) specify the limitation and the reasons for the limitation in its 17 notice to the applicant under subsection (1)(b); and 18 (b) note the limitation on the list. 19 `Refusal of application 20 `42D. If the Board is not satisfied the applicant has enough experience in 21 retail rental valuation it must-- 22 (a) refuse the application; and 23 (b) give written notice to the applicant of the refusal and the grounds 24 on which the Board decided the applicant does not have the 25 experience. 26

 


 

70 Retail Shop Leases SCHEDULE (continued) `Failure to decide application 1 `42E. If the Board fails to decide an application within the time 2 mentioned in section 42C (Board to decide applications), the failure is taken 3 to be a decision to refuse the application at the end of the time. 4 `Inspection of list 5 `42F.(1) The Board must-- 6 (a) keep the list of specialist retail valuers open for inspection by 7 members of the public during office hours on business days at 8 the Board's office; and 9 (b) permit a person to take extracts from the list or, on payment of 10 the appropriate fee by a person, give the person a copy of the list 11 or part of it. 12 `(2) The fee for a copy of the list or part of it is the amount that-- 13 (a) the Board considers to be reasonable; and 14 (b) is not more than the reasonable cost of making the copy. 15 `Removal of name from list 16 `42G.(1) If the Board removes a specialist retail valuer's name from the 17 register, the Board must also remove the person's name from the list of 18 specialist retail valuers. 19 `(2) The person ceases to be a specialist retail valuer on removal of the 20 person's name from the list. 21 `Disciplinary charges against specialist retail valuers 22 `42H.(1) This section applies if the Board suspects on reasonable 23 grounds that a specialist retail valuer has-- 24 (a) knowingly contravened section 28(3) (Rent review on basis of 25 current market rent) of the Retail Shop Leases Act 1994; or 26 (b) contravened section 29 (Matters to be considered by specialist 27

 


 

71 Retail Shop Leases SCHEDULE (continued) retail valuers) or 32 (Valuer to give determination to lessor and 1 lessee) of the Retail Shop Leases Act 1994. 2 `(2) Part 4 (Complaints and Discipline), applies to the contravention as if 3 the valuer had contravened a prescribed code of professional conduct.'. 4 4. Section 61(1)-- 5 insert-- 6 `(d) a refusal by the Board of the person's application to be recorded 7 as a specialist retail valuer; or 8 (e) a decision by the Board to limit the person's authority as a 9 specialist retail valuer to particular areas of the State; or 10 (f) a decision by the Board to remove the person's name from the 11 list of specialist retail valuers.'. 12 5. Section 61(3)-- 13 insert-- 14 `(d) if the appeal is made under subsection (1)(d)-- 15 (i) allow the appeal and order the Board to record the person as 16 a specialist retail valuer; or 17 (ii) dismiss the appeal; or 18 (e) if the appeal is made under subsection (1)(e)-- 19 (i) allow the appeal and order the Board to record the person as 20 a specialist retail valuer-- 21 (A) without limit on the person's authority to particular 22 areas of the State; or 23 (B) with a substituted limit on the person's authority to 24 particular areas of the State; or 25 (ii) dismiss the appeal; or 26 (f) if the appeal is made under subsection (1)(f)-- 27

 


 

72 Retail Shop Leases SCHEDULE (continued) (i) allow the appeal and order the Board to restore the person's 1 name and other particulars to the list of specialist retail 2 valuers; or 3 (ii) dismiss the appeal.'. 4 6. After section 66-- 5 insert-- 6 `Specialist retail valuers 7 `67.(1) In this section-- 8 "valuers' list" means the list of specialist retail valuers kept under the 9 Retail Shop Leases Act 1984. 10 `(2) The valuers' list subsisting immediately before the commencement 11 of this section is taken to be the list of specialist retail valuers kept under this 12 Act. 13 `(3) A person whose name is included on the valuers' list immediately 14 before the commencement of this section is taken to be recorded on the list 15 of specialist retail valuers kept under this Act. 16 `(4) This section expires on the day it commences.'. 17 18 © State of Queensland 1994

 


[Index] [Search] [Download] [Related Items] [Help]