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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Commercial Tenancy (Retail Shops) Agreements
Amendment Bill 2011
CONTENTS
1. Short title 2
2. Commencement 2
3. Act amended 2
4. Long title amended 2
5. Section 3 amended 2
6. Section 4 amended 6
7. Section 6 amended 6
8. Section 11 amended 7
9. Section 11A inserted 9
11A. Confidentiality of information supplied
under section 11 9
10. Section 12 amended 10
11. Section 13 amended 12
12. Section 13B amended 14
13. Section 13C inserted 15
13C. Obligation to notify tenant of option to
renew 15
14. Sections 14A, 14B and 14C inserted 16
14A. Relocation 16
14B. Liability for costs associated with lease 18
14C. Refurbishment and refitting 19
15. Part IIA heading amended 19
16. Part IIA Division 1 heading inserted 19
Division 1 -- Unconscionable conduct
17. Section 15A amended 20
18. Section 15B amended 20
19. Section 15F amended 21
20. Part IIA Division 2 inserted 21
192--3 page i
Commercial Tenancy (Retail Shops) Agreements Amendment Bill 2011
Contents
Division 2 -- Misleading or deceptive conduct
16A. Term used: misleading or deceptive
conduct 21
16B. Application of Division 21
16C. Misleading or deceptive conduct in
connection with retail shop leases 22
16D. Powers of Tribunal relating to misleading
or deceptive conduct 22
21. Part IIA Division 3 heading inserted 23
Division 3 -- Reference of questions to State
Administrative Tribunal
22. Section 26 amended 24
23. Section 27 amended 24
24. Section 29 inserted 24
29. Transitional provisions 24
25. Schedule 1 inserted 25
Schedule 1 -- Transitional provisions
Division 1 -- Preliminary
1. Interpretation Act 1984 not affected 25
2. Transitional regulations 25
Division 2 -- Provisions for Commercial Tenancy
(Retail Shops) Agreements Amendment
Act 2011
3. Terms used 26
4. Application of this Act to existing retail
shop leases 27
5. This Act does not apply to a lease that
becomes a retail shop lease as a
consequence of the 2011 amending Act 27
6. No contracting out 28
page ii
Western Australia
LEGISLATIVE ASSEMBLY
(As amended in Committee)
Commercial Tenancy (Retail Shops) Agreements
Amendment Bill 2011
A Bill for
An Act to amend the Commercial Tenancy (Retail Shops) Agreements
Act 1985.
The Parliament of Western Australia enacts as follows:
page 1
Commercial Tenancy (Retail Shops) Agreements Amendment Bill 2011
s. 1
1 1. Short title
2 This is the Commercial Tenancy (Retail Shops) Agreements
3 Amendment Act 2011.
4 2. Commencement
5 This Act comes into operation as follows --
6 (a) sections 1 and 2 -- on the day on which this Act
7 receives the Royal Assent;
8 (b) the rest of the Act -- on a day fixed by proclamation,
9 and different days may be fixed for different provisions.
10 3. Act amended
11 This Act amends the Commercial Tenancy (Retail Shops)
12 Agreements Act 1985.
13 4. Long title amended
14 In the long title delete "conduct" and insert:
15
16 conduct, or misleading or deceptive conduct,
17
18 5. Section 3 amended
19 (1) In section 3(1) delete the definitions of:
20 retail floor area
21 retail shop
22 retail shop lease
23 retail shopping centre
24 total lettable area
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Commercial Tenancy (Retail Shops) Agreements Amendment Bill 2011
s. 5
1 (2) In section 3(1) insert in alphabetical order:
2
3 group of premises means --
4 (a) a retail shopping centre; or
5 (b) 2 or more premises, at least one of which is a
6 retail shop, that are adjacent, or form a
7 cluster --
8 (i) which have, or on being leased would
9 have, a common head lessor; and
10 (ii) are grouped together for the purpose of
11 allocating to each of those premises a
12 portion of an item of operating
13 expenses;
14 lettable area, of a retail shop, means an area of the
15 shop defined or calculated --
16 (a) in such manner as is prescribed by the
17 regulations; and
18 (b) if the shop is part of a group of premises, in the
19 same, or a substantially similar, manner as the
20 area for each other retail shop in the group of
21 premises is defined or calculated;
22 misleading or deceptive conduct application means an
23 application under section 16D(1);
24 retail business means --
25 (a) a business that wholly or predominantly
26 involves the sale of goods by retail; or
27 (b) a specified business;
28 retail shop means --
29 (a) any premises situated in a retail shopping centre
30 that are used wholly or predominantly for the
31 carrying on of a business; or
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Commercial Tenancy (Retail Shops) Agreements Amendment Bill 2011
s. 5
1 (b) any premises not situated in a retail shopping
2 centre that are used wholly or predominantly
3 for the carrying on of a retail business,
4 but does not include any premises excluded by
5 regulation;
6 retail shop lease means a lease that provides for the
7 occupation of a retail shop, unless --
8 (a) the retail shop --
9 (i) has a lettable area that exceeds
10 1 000 square metres; and
11 (ii) is not of a kind prescribed by the
12 regulations for the purposes of this
13 definition;
14 or
15 (b) the lease is held by --
16 (i) a listed corporation (within the meaning
17 of the Corporations Act 2001
18 (Commonwealth) section 9) that would
19 not be eligible to be incorporated as a
20 proprietary company; or
21 (ii) a subsidiary (within the meaning of the
22 Corporations Act 2001
23 (Commonwealth) section 9) of such a
24 corporation;
25 or
26 (c) the lease is held by --
27 (i) a body corporate whose securities are
28 listed on a stock exchange, outside
29 Australia and the external territories,
30 that is a member of the World
31 Federation of Exchanges; or
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Commercial Tenancy (Retail Shops) Agreements Amendment Bill 2011
s. 5
1 (ii) a subsidiary (within the meaning of the
2 Corporations Act 2001
3 (Commonwealth) section 9) of such a
4 body corporate;
5 or
6 (d) the lease is of a kind that is prescribed by the
7 regulations as exempt from the operation of this
8 Act;
9 retail shopping centre means a cluster of premises --
10 (a) 5 or more of which are used for the carrying on
11 of a retail business; and
12 (b) all of which --
13 (i) have, or upon being leased would have,
14 a common head lessor; or
15 (ii) comprise lots on a single strata plan
16 under the Strata Titles Act 1985,
17 but, if the premises are in a building with 2 or more
18 floor levels, includes only those levels of the building
19 where a retail business is situated;
20
21 (3) In section 3(3):
22 (a) in paragraph (a) delete "existed;" and insert:
23
24 existed, including a question as to forfeiture; or
25
26 (b) after paragraphs (b) and (c) insert:
27
28 or
29
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Commercial Tenancy (Retail Shops) Agreements Amendment Bill 2011
s. 6
1 6. Section 4 amended
2 After section 4(3) insert:
3
4 (4) Regulations may be made exempting from all or any of
5 the provisions of this Act --
6 (a) a prescribed person, retail shop lease or retail
7 shop; or
8 (b) a prescribed class of persons, retail shop leases
9 or retail shops.
10 (5) The regulations may provide for conditions and
11 restrictions subject to which an exemption is to apply.
12
13 7. Section 6 amended
14 (1) In section 6(1) after "the disclosure statement given" insert:
15
16 is incomplete or
17
18 (2) Delete section 6(1)(a) and insert:
19
20 (a) within 6 months after the lease was entered into
21 give to the landlord written notice of
22 termination of the lease, unless subsection (3)
23 prevents termination;
24
25 (3) In section 6(1)(b) delete the passage that begins with "of the
26 omission" and continues to the end of the paragraph and insert:
27
28 of --
29 (i) the omission of the landlord to give a
30 disclosure statement in accordance with
31 subsection (4); or
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Commercial Tenancy (Retail Shops) Agreements Amendment Bill 2011
s. 8
1 (ii) the giving of an incomplete disclosure
2 statement by the landlord; or
3 (iii) the giving of false or misleading
4 information by the landlord in the
5 disclosure statement.
6
7 (4) After section 6(2) insert:
8
9 (3) A tenant cannot terminate a lease under this section on
10 the ground that the tenant has been given a disclosure
11 statement that is incomplete or contains false or
12 misleading information if --
13 (a) the landlord has acted honestly and reasonably
14 and ought reasonably to be excused for the
15 failure concerned; and
16 (b) the tenant is in substantially as good a position
17 as the tenant would have been if the statement
18 had been complete or had not contained the
19 false or misleading information.
20
21 8. Section 11 amended
22 (1) In section 11(2)(a) delete "lease;" and insert:
23
24 lease, and is not to take into account the value
25 of --
26 (i) the goodwill of the business carried on
27 in the retail shop; or
28 (ii) any stock, fixtures or fittings in the
29 retail shop that are not the property of
30 the landlord; or
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Commercial Tenancy (Retail Shops) Agreements Amendment Bill 2011
s. 8
1 (iii) any structural improvement, or
2 alteration, of the retail shop carried out,
3 or paid for, by the current tenant;
4 and
5
6 (2) After section 11(3a) insert:
7
8 (3B) A landlord under a retail shop lease must, to assist in
9 determining the rent payable as a result of the review,
10 within 14 days after being given a written request to do
11 so by a person who acts under subsection (3), give that
12 person such relevant information as is requested,
13 including any of the following information, about
14 leases for retail shops in the same building or retail
15 shopping centre --
16 (a) current rental for each lease;
17 (b) rent free periods or any other form of incentive;
18 (c) recent or proposed variations of any lease;
19 (d) outgoings for each lease;
20 (e) any other information prescribed for the
21 purposes of this paragraph.
22 (3C) If a landlord fails to comply with a request made under
23 subsection (3B) without reasonable excuse --
24 (a) the person who made the request must, within
25 7 days after the landlord has failed to comply
26 with the request, give to the tenant written
27 notice of the landlord's failure; and
28 (b) the tenant may apply in writing to the Tribunal
29 for an order that the landlord comply with a
30 request made under subsection (3B) to supply
31 the information requested.
32
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Commercial Tenancy (Retail Shops) Agreements Amendment Bill 2011
s. 9
1 9. Section 11A inserted
2 After section 11 insert:
3
4 11A. Confidentiality of information supplied under
5 section 11
6 (1) A person given information by a landlord under
7 section 11(3B) must not disclose that information to
8 any other person unless the disclosure is made --
9 (a) for the purpose of, or in connection with,
10 determining the rent payable as a result of the
11 review; or
12 (b) in a way that does not disclose information
13 identifying a particular lease or tenant, or
14 relating to a tenant's business, for the purpose
15 of specifying the matters to which the person
16 had regard in resolving the question concerned;
17 or
18 (c) with the consent of both the tenant and the
19 landlord of the relevant retail shop; or
20 (d) for the purposes of any legal proceedings
21 arising out of this Act or of any report of any
22 such proceedings; or
23 (e) as required or permitted under this Act or any
24 other law; or
25 (f) with any other lawful excuse.
26 (2) Subsection (1) does not prevent a person from
27 disclosing information that is publicly available at the
28 time the disclosure concerned was made.
29 (3) If a person discloses information in contravention of
30 subsection (1) and the tenant or landlord suffers loss or
31 damage because of the disclosure, the tenant or
page 9
Commercial Tenancy (Retail Shops) Agreements Amendment Bill 2011
s. 10
1 landlord is entitled to be paid by the person who made
2 the disclosure compensation for the loss or damage --
3 (a) of such reasonable amount as is agreed between
4 the person and the tenant or landlord; or
5 (b) failing agreement, as may be determined by the
6 Tribunal on the application of the tenant or
7 landlord.
8
9 10. Section 12 amended
10 (1) In section 12(1)(b) delete "the proportion" and insert:
11
12 subject to subsection (1e), the proportion
13
14 (2) In section 12(1)(c) delete subparagraphs (i) and (ii) and insert:
15
16 (i) the premises the subject of the retail
17 shop lease are part of a group of
18 premises; and
19 (ii) any part of the operating expenses is
20 expenditure incurred as a result of some
21 only of the premises in the group being
22 open outside the standard trading hours,
23
24 (3) In section 12(1e):
25 (a) delete "premises in a retail shopping centre --" and
26 insert:
27
28 a retail shop in a group of premises --
29
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Commercial Tenancy (Retail Shops) Agreements Amendment Bill 2011
s. 10
1 (b) in paragraph (a) delete "retail shop in the retail shopping
2 centre unless the shop is one of the shops" and insert:
3
4 premises in the group of premises unless the
5 shop is one of the premises
6
7 (c) in paragraph (b) delete the passage that begins with
8 "retail floor area" and continues to the end of the
9 paragraph and insert:
10
11 lettable area of the shop bears to the total
12 lettable area of all of the premises in the group
13 of premises to which the operating expense is
14 referable, without the approval of the Tribunal.
15
16 (4) After section 12(2) insert:
17
18 (3A) A provision in a retail shop lease to the effect that the
19 tenant is obliged to contribute towards the cost of any
20 of the landlord's finishes, fixtures, fittings, equipment
21 or services is void unless the disclosure statement
22 given to the tenant under section 6 contains a statement
23 notifying the tenant of the effect of the provision.
24
25 (5) In section 12(3) delete the definition of relevant proportion.
26 (6) In section 12(3) insert in alphabetical order:
27
28 group of premises includes a part of a group of
29 premises;
30 relevant proportion, in relation to a retail shop that is
31 part of a group of premises, means the proportion that
32 the lettable area of the retail shop bears to the total
33 lettable area of the group of premises at the
34 commencement of the accounting year;
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Commercial Tenancy (Retail Shops) Agreements Amendment Bill 2011
s. 11
1 total lettable area, of a group of premises, or part of a
2 group of premises, means the aggregate of --
3 (a) the lettable areas of the premises that are retail
4 shops (or areas set aside for retail shops); and
5 (b) if any of the premises are not retail shops, the
6 lettable area of those premises defined or
7 calculated in such manner as is prescribed by
8 the regulations.
9
10 (7) In section 12(3) in the definition of strata titles levy delete
11 "Act 1985." and insert:
12
13 Act 1985;
14
15 11. Section 13 amended
16 (1) In section 13(1) delete "less" (each occurrence) and insert:
17
18 more than 6 months but less
19
20 (2) After section 13(1) insert:
21
22 (2A) For the purposes of subsection (1), a lease for a term of
23 more than 6 months includes a tenancy where the
24 tenant has been continuously in possession of the retail
25 shop for more than 6 months as a result of either or
26 both of the following --
27 (a) the lease being renewed (one or more times);
28 (b) the lease being continued.
29
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Commercial Tenancy (Retail Shops) Agreements Amendment Bill 2011
s. 11
1 (3) In section 13(3)(a) delete "90 days" and insert:
2
3 30 days
4
5 (4) In section 13(6):
6 (a) delete the passage that begins with "to which
7 subsection (1)" and ends with "except --" and insert:
8
9 is not entitled to determine the lease --
10 (aa) if the lease is a lease referred to in
11 subsection (1), before the day on which the
12 term that may be obtained by the tenant under
13 that subsection expires; or
14 (ab) if the lease is a lease the current term of which,
15 or the current term plus the option term, is
16 5 years or longer, before the day that is 5 years
17 after the day on which the current term
18 commenced,
19 except --
20
21 (b) after paragraph (c) insert:
22
23 (da) under and in accordance with a provision of the
24 lease that is the same, or substantially the same,
25 as a provision prescribed for the purposes of
26 this section; or
27
28 (c) in paragraph (d) delete "subsection (7b)." and insert:
29
30 subsection (7b), in relation to a lease referred to
31 in paragraph (aa).
32
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Commercial Tenancy (Retail Shops) Agreements Amendment Bill 2011
s. 12
1 (d) after each of paragraphs (a) and (b) insert:
2
3 or
4
5 (5) In section 13(7) delete the passage that begins with "at a time"
6 and ends with "subsection (6)(a) or (b)" and insert:
7
8 (other than under subsection (6)(a), (b) or (da)) before
9 the day set out in subsection (6)(aa) or (ab), as is
10 relevant,
11
12 12. Section 13B amended
13 After section 13B(3) insert:
14
15 (4A) A lease may be terminated during a period by which it
16 is deemed to be extended under subsection (3) by the
17 tenant giving written notice of termination of the lease
18 to the landlord specifying a day that is --
19 (a) on or after the date on which the term of the
20 lease ends; and
21 (b) before the date until which the lease is deemed
22 to be extended under subsection (3).
23 (4B) If the tenant gives the landlord a notice of termination
24 under subsection (4A), the lease terminates on the day
25 specified in the notice.
26 (4C) If a lease is renewed because of subsection (3) after the
27 term of the lease ends, the lease for the further term
28 commences on the expiry of the previous lease,
29 disregarding for this purpose any period during which
30 that lease is deemed to be extended because of that
31 subsection.
32
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Commercial Tenancy (Retail Shops) Agreements Amendment Bill 2011
s. 13
1 13. Section 13C inserted
2 After section 13B insert:
3
4 13C. Obligation to notify tenant of option to renew
5 (1) If a retail shop lease provides, whether directly or by
6 operation of section 13, an option or a further option of
7 renewal of the lease exercisable by the tenant, the
8 landlord must notify the tenant in writing of the date
9 after which the option is no longer exercisable --
10 (a) at least 6 months; and
11 (b) no more than 12 months,
12 before that date but is not required to do so if the tenant
13 exercises, or purports to exercise, the option before
14 being notified of the date.
15 (2) If subsection (1) requires the landlord to notify the
16 tenant but the landlord fails to do so within the time
17 specified by that subsection --
18 (a) the retail shop lease is taken to provide that the
19 date after which the option is no longer
20 exercisable is instead 6 months after the
21 landlord notifies the tenant as required; and
22 (b) if that date is after the term of the lease ends,
23 the lease continues until that date (on the same
24 terms and conditions as applied immediately
25 before the lease term ends); and
26 (c) the tenant, whether or not the landlord has by
27 then notified the tenant as required, may give
28 written notice of termination of the lease to the
29 landlord specifying a day that is --
30 (i) on or after the date on which the term of
31 the lease ends; and
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Commercial Tenancy (Retail Shops) Agreements Amendment Bill 2011
s. 14
1 (ii) before the date until which the lease
2 would otherwise have continued
3 because of paragraph (b).
4 (3) If the tenant gives the landlord a notice of termination
5 under subsection (2)(c), the lease terminates on the day
6 specified in the notice.
7 (4) If an option to renew is exercised because of
8 subsection (2)(b) after the term of the lease ends, the
9 lease for the further term commences on the expiry of
10 the previous lease, disregarding for this purpose any
11 period during which that lease continued because of
12 that subsection.
13
14 14. Sections 14A, 14B and 14C inserted
15 After section 14 insert:
16
17 14A. Relocation
18 (1) A provision of a retail shop lease about the relocation
19 of the tenant's business is void unless --
20 (a) it is in the form prescribed for the purposes of
21 this section; or
22 (b) it is in a form approved by the Tribunal under
23 subsection (3); or
24 (c) if 5 years of the term of the lease (including any
25 period during the extension of the term under
26 an option to renew) have already expired, it is
27 in accordance with subsection (2).
28 (2) A provision of a retail shop lease about the relocation
29 of the tenant's business is in accordance with this
30 subsection if it contains provisions to the following
31 effect --
32 (a) the tenant's business cannot be required to be
33 relocated unless the landlord has given the
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Commercial Tenancy (Retail Shops) Agreements Amendment Bill 2011
s. 14
1 tenant at least 6 months written notice of
2 relocation (a relocation notice);
3 (b) the relocation notice is to give details of an
4 alternative retail shop (the alternative shop) to
5 be made available to the tenant, and if the
6 existing retail shop is situated in a retail
7 shopping centre, the alternative shop is to be
8 situated in that shopping centre;
9 (c) the tenant is to be offered a new lease of the
10 alternative shop --
11 (i) on the same, or better, terms and
12 conditions as the existing lease except
13 that the term of the new lease is to be no
14 shorter than the remainder of the term of
15 the existing lease; and
16 (ii) the rent for the alternative shop is to be
17 no more than the rent for the existing
18 retail shop, adjusted to take into account
19 any difference in the commercial values
20 of the existing retail shop and the
21 alternative shop at the time of
22 relocation;
23 (d) the landlord is to pay the tenant's reasonable
24 costs of the relocation, including but not limited
25 to --
26 (i) costs incurred by the tenant in
27 dismantling fittings, equipment or
28 services; and
29 (ii) costs incurred by the tenant in replacing,
30 re-installing or modifying finishes,
31 fittings, equipment or services to the
32 standard existing in the existing retail
33 shop immediately before the relocation,
34 but only to the extent that they are
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Commercial Tenancy (Retail Shops) Agreements Amendment Bill 2011
s. 14
1 reasonably required in the alternative
2 shop; and
3 (iii) packaging and removal costs incurred
4 by the tenant; and
5 (iv) legal costs incurred by the tenant;
6 (e) if the landlord does not offer the tenant a new
7 lease of an alternative retail shop then the
8 landlord is liable to pay to the tenant such
9 reasonable compensation as is agreed in writing
10 between the parties, or determined by the
11 Tribunal.
12 (3) The Tribunal may, on application made to it by the
13 landlord, notice of which has been given to the tenant,
14 approve of the inclusion in a retail shop lease of
15 another form of relocation provision under
16 subsection (1)(b) if the Tribunal is satisfied that special
17 circumstances exist by reason of which such approval
18 ought to be given.
19 (4) A landlord in relation to a retail shopping centre may
20 make an application under subsection (3) as to any
21 number of retail shop leases in respect of that centre
22 where the landlord is of the opinion that the same
23 special circumstances exist in relation to each lease the
24 subject of the application, and the Tribunal may
25 exercise its powers under that subsection accordingly.
26 14B. Liability for costs associated with lease
27 (1) A landlord under a retail shop lease is not able to claim
28 from any person (including the tenant) the landlord's
29 legal or other expenses relating to --
30 (a) the negotiation, preparation or execution of --
31 (i) the lease; or
32 (ii) a renewal of the lease; or
33 (iii) an extension of the lease;
page 18
Commercial Tenancy (Retail Shops) Agreements Amendment Bill 2011
s. 15
1 or
2 (b) obtaining the consent of a mortgagee to the
3 lease; or
4 (c) the landlord's compliance with this Act.
5 (2) Subsection (1) does not prevent the landlord from
6 claiming the reasonable legal or other expenses
7 incurred by the landlord in connection with an
8 assignment of the lease or a sub-lease, including
9 investigating a proposed assignee or sub-lessee and
10 obtaining any necessary consents to the assignment or
11 sub-lease.
12 14C. Refurbishment and refitting
13 A provision of a retail shop lease requiring the tenant
14 to refurbish or refit the shop is void unless it gives such
15 details of the required refurbishment or refitting as may
16 be necessary to indicate generally the nature, extent
17 and timing of the required refurbishment or refitting.
18
19 15. Part IIA heading amended
20 In the heading to Part IIA after "conduct" insert:
21
22 and misleading or deceptive conduct
23
24 16. Part IIA Division 1 heading inserted
25 At the beginning of Part IIA insert:
26
27 Division 1 -- Unconscionable conduct
28
page 19
Commercial Tenancy (Retail Shops) Agreements Amendment Bill 2011
s. 17
1 17. Section 15A amended
2 In section 15A delete "Part --" and insert:
3
4 Division --
5
6 Note: The heading to amended section 15A is to read:
7 Terms used
8 18. Section 15B amended
9 (1) In section 15B(1) delete "Part" (each occurrence) and insert:
10
11 Division
12
13 (2) After section 15B(1) insert:
14
15 (2A) In subsection (1) --
16 the relevant day has the meaning given to that term by
17 section 4(3).
18
19 (3) In section 15B(2) delete "Part" and insert:
20
21 Division
22
23 (4) Delete section 15B(3) and insert:
24
25 (3) Nothing in this Division affects the operation of
26 Division 2.
27
28 Note: The heading to amended section 15B is to read:
29 Application of Division
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Commercial Tenancy (Retail Shops) Agreements Amendment Bill 2011
s. 19
1 19. Section 15F amended
2 Delete section 15F(1) and insert:
3
4 (1) A landlord or tenant, or former landlord or tenant,
5 under a retail shop lease or former retail shop lease
6 who suffers, or is likely to suffer, loss or damage
7 because of unconscionable conduct of another person
8 that contravenes section 15C or 15D may apply in
9 writing to the Tribunal for an order that the other
10 person pay compensation in respect of the loss or
11 damage, or for other appropriate relief.
12
13 20. Part IIA Division 2 inserted
14 After section 15F insert:
15
16 Division 2 -- Misleading or deceptive conduct
17 16A. Term used: misleading or deceptive conduct
18 In this Division --
19 misleading or deceptive conduct means conduct to
20 which section 16C applies.
21 16B. Application of Division
22 (1) In addition to a retail shop lease to which or in relation
23 to which this Division would otherwise apply, this
24 Division also applies to or in relation to a retail shop
25 lease that was entered into --
26 (a) before the relevant day; or
27 (b) pursuant to an option granted or agreement
28 made before the relevant day,
29 if this Act would have applied to the lease had it been
30 entered into on or after that day.
page 21
Commercial Tenancy (Retail Shops) Agreements Amendment Bill 2011
s. 20
1 (2) In subsection (1) --
2 the relevant day has the meaning given to that term by
3 section 4(3).
4 (3) This Division does not apply to conduct that occurred
5 before the commencement of the Commercial Tenancy
6 (Retail Shops) Agreements Amendment Act 2011
7 section 20.
8 (4) Nothing in this Division affects the operation of
9 Division 1.
10 16C. Misleading or deceptive conduct in connection with
11 retail shop leases
12 A party to a retail shop lease must not, in connection
13 with the lease, engage in conduct that is misleading or
14 deceptive to another party to the lease or that is likely
15 to mislead or deceive another party to the lease.
16 16D. Powers of Tribunal relating to misleading or
17 deceptive conduct
18 (1) A party, or former party, under a retail shop lease or
19 former retail shop lease who suffers, or is likely to
20 suffer, loss or damage because of misleading or
21 deceptive conduct of another party or former party to
22 the lease may apply in writing to the Tribunal for an
23 order that the other party, or former party, pay
24 compensation in respect of the loss or damage, or for
25 other appropriate relief.
26 (2) A misleading or deceptive conduct application is
27 required to be lodged within 6 years after the alleged
28 misleading or deceptive conduct occurred.
29 (3) Without limiting section 26, in proceedings in relation
30 to a misleading or deceptive conduct application, the
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Commercial Tenancy (Retail Shops) Agreements Amendment Bill 2011
s. 21
1 Tribunal may make any one or more of the following
2 orders that it considers appropriate --
3 (a) an order that a party to the proceedings pay
4 money to a specified person, whether by way of
5 debt, damages or restitution, or refund any
6 money paid by a specified person;
7 (b) an order that a specified amount of money is
8 not due or owing by a party to the proceedings
9 to a specified person, or that a party to the
10 proceedings is not entitled to a refund of any
11 money paid to another party to the proceedings.
12 (4) The Tribunal may make any ancillary orders that it
13 considers necessary for the purpose of enabling an
14 order under this section to have full effect.
15 (5) The Tribunal may impose any conditions that it
16 considers appropriate when making an order under this
17 section.
18 (6) The Tribunal may make an interim order under this
19 section pending final determination of a misleading or
20 deceptive conduct application, if the Tribunal considers
21 it appropriate to do so.
22 (7) In this section --
23 specified, in relation to an order, means specified in the
24 order.
25
26 21. Part IIA Division 3 heading inserted
27 Before section 16 insert:
28
29 Division 3 -- Reference of questions to State
30 Administrative Tribunal
31
page 23
Commercial Tenancy (Retail Shops) Agreements Amendment Bill 2011
s. 22
1 22. Section 26 amended
2 In section 26(1aa) delete "so, make an order terminating a retail
3 shop lease under section 6A." and insert:
4
5 so to resolve the matter concerned, make an order
6 terminating a retail shop lease.
7
8 23. Section 27 amended
9 (1) In section 27(4)(a) after "application" insert:
10
11 or misleading or deceptive conduct application
12
13 (2) In section 27(5)(a) delete "the unconscionable conduct
14 application, or the part of that" and insert:
15
16 an application referred to in subsection (4), or a part of such an
17
18 (3) In section 27(6)(a) delete "unconscionable conduct application"
19 and insert:
20
21 application referred to in subsection (4)
22
23 24. Section 29 inserted
24 After section 28 insert:
25
26 29. Transitional provisions
27 Schedule 1 sets out transitional provisions.
28
page 24
Commercial Tenancy (Retail Shops) Agreements Amendment Bill 2011
s. 25
1 25. Schedule 1 inserted
2 After section 31 insert:
3
4 Schedule 1 -- Transitional provisions
5 [s. 29]
6 Division 1 -- Preliminary
7 1. Interpretation Act 1984 not affected
8 This Schedule does not affect the operation of the
9 Interpretation Act 1984 Part V.
10 2. Transitional regulations
11 (1) Regulations may prescribe all matters that are required or
12 necessary or convenient to be prescribed for dealing with
13 any issue or matter of a savings or transitional nature --
14 (a) that arises as a result of the amendment of this Act
15 by another Act (an amending Act); and
16 (b) for which there is no sufficient provision in this Act
17 or the amending Act.
18 (2) Regulations made under this clause may provide that
19 specified provisions of this Act do not apply, or apply with
20 modifications specified in the regulations, to or in relation to
21 any matter.
22 (3) Regulations made under this clause may provide that a state
23 of affairs specified in the regulations is to be taken to have
24 existed, or not to have existed, on and from a day that is
25 earlier than the day on which the regulations come into
26 operation but not earlier than the day on which the relevant
27 amending Act, or the relevant provision or provisions of that
28 Act, came into operation.
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Commercial Tenancy (Retail Shops) Agreements Amendment Bill 2011
s. 25
1 (4) If the regulations contain a provision referred to in
2 subclause (3), the provision does not operate so as --
3 (a) to affect in a manner prejudicial to any person
4 (other than the State), the rights of that person
5 existing before the regulations commenced; or
6 (b) to impose liabilities on any person (other than the
7 State) in respect of anything done or omitted to be
8 done before the regulations commenced.
9 Division 2 -- Provisions for Commercial Tenancy (Retail
10 Shops) Agreements Amendment Act 2011
11 3. Terms used
12 In this Division --
13 2011 amending Act means the Commercial Tenancy (Retail
14 Shops) Agreements Amendment Act 2011;
15 commencement day, in relation to a provision of this Act
16 referred to in clause 4, means the day on which --
17 (a) the provision of the 2011 amending Act that
18 inserted the provision referred to in clause 4 came
19 into operation; or
20 (b) the provision of the 2011 amending Act that
21 amended the provision referred to in clause 4 came
22 into operation;
23 existing lease means a lease that --
24 (a) immediately before the commencement of the
25 2011 amending Act section 5, was not a retail shop
26 lease within the meaning of this Act as in force at
27 that time; and
28 (b) was entered into --
29 (i) before the commencement of the
30 2011 amending Act section 5; or
31 (ii) pursuant to an option granted or agreement
32 made before the commencement of the
33 2011 amending Act section 5;
page 26
Commercial Tenancy (Retail Shops) Agreements Amendment Bill 2011
s. 25
1 existing retail shop lease, in relation to a provision of this
2 Act referred to in clause 4, means a retail shop lease that
3 was entered into --
4 (a) before the commencement day; or
5 (b) pursuant to an option granted, whether directly or
6 by operation of section 13, or agreement made
7 before the commencement day.
8 4. Application of this Act to existing retail shop leases
9 Despite the amendments effected by the 2011 amending
10 Act --
11 (a) the following provisions do not apply to, or in
12 relation to, an existing retail shop lease --
13 (i) section 12(3A) of this Act as inserted by
14 section 10(4) of the 2011 amending Act;
15 (ii) sections 14A and 14C of this Act, as
16 inserted by section 14 of the 2011 amending
17 Act; and
18 and
19 (b) the following provisions continue to apply to, and in
20 relation to, an existing retail shop lease --
21 (i) section 6 of this Act, as in force
22 immediately before being amended by
23 section 7 of the 2011 amending Act; and
24 (ii) section 13 of this Act, as in force
25 immediately before being amended by
26 section 11 of the 2011 amending Act.
27 5. This Act does not apply to a lease that becomes a retail
28 shop lease as a consequence of the 2011 amending Act
29 This Act does not apply to, or in relation to, an existing
30 lease that, immediately after the commencement of the 2011
31 amending Act section 5, is a retail shop lease within the
32 meaning of this Act as in force at that time.
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Commercial Tenancy (Retail Shops) Agreements Amendment Bill 2011
s. 25
1 6. No contracting out
2 This Division applies despite an agreement to the contrary
3 between the parties to a retail shop lease whether or not the
4 agreement is contained in the retail shop lease.
5
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