Tasmania: Retail Leases Act 2022 (Tas)

Retail Leases Act 2022 An Act to make provision in relation to leases of certain retail premises and other business premises, and the rights and obligations of landlords and tenants of those retail premises and other business premises, to continue in force the Fair Trading (Code of Practice for Retail Tenancies) Regulations 1998 , and for other related purposes [Royal Assent 14 December 2022] Be it enacted by Her Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART 1 - Preliminary 1. Short title This Act may be cited as the Retail Leases Act 2022 . 2. Commencement (1) Except as provided in subsection (2) , the provisions of this Act commence on a day or days to be proclaimed. (2) This section and section 88 commence on the day on which this Act receives the Royal Assent if the Royal Assent is received on or before 31 December 2022. [Commences: Never commenced 3. Objects of Act The objects of this Act are to facilitate – (a) the certainty and fairness of retail premises leasing arrangements between landlords and tenants; and (b) the mechanisms available to resolve disputes concerning retail leases; and (c) the certainty and fairness of certain other aspects of retail leases. ] [Commences: Never commenced 4. Act binds Crown This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities. ] [Commences: Never commenced 5. Effects of Act on common law (1) The common law in relation to retail leases remains in force to the extent to which it is not inconsistent with this Act. (2) A person is entitled to exercise any rights that the person may have at common law in relation to retail leases, except to the extent to which this Act provides otherwise. ] [Commences: Never commenced 6. Interpretation In this Act, unless the contrary intention appears – accounting period, in relation to a retail lease, means the period specified in the lease as the accounting period for the purposes of the lease; assignment, in relation to a retail lease – (a) includes a sublease of the whole or a part of the retail premises referred to in the retail lease; and (b) is taken to be a continuation of the retail lease and not the entering into of a new retail lease; auditor means – (a) a person who is – (i) a registered company within the meaning of the Corporations Act; and (ii) a member of the Chartered Accountants Australia and New Zealand or the Australian Society of Certified Practising Accountants; or (b) a person who is specified, in a determination made for the purposes of this definition, as an auditor for the purposes of this Act; authorised person means – (a) the Director; and (b) a person who is specified, in a determination made for the purposes of this definition, as an authorised person for the purposes of this Act; and (c) an authorized officer within the meaning of the Consumer Affairs Act 1988 ; base rent – see section 48 ; code of practice means a code of practice for retail leases determined in accordance with section 18 ; current market rent – see section 43 ; determination, in relation to a matter, means a determination of the Director made under section 16 in respect of the matter; Director means the Director of Consumer Affairs and Fair Trading appointed under the Consumer Affairs Act 1988 ; excluded premises means premises, or a class of premises, that are prescribed as being excluded from the definition of retail premises; function includes a power, an authority and a duty; key-money means money that a tenant is to pay, or a benefit that a tenant is to give, that is – (a) by way of a premium, or something similar in nature to a premium, in that there is no real consideration or no true consideration given for the payment or benefit; and (b) in consideration of – (i) a lease being granted or an agreement being made to grant a lease; or (ii) the variation of a lease; or (iii) the renewal of a lease or the granting of an option for the renewal of a lease; or (iv) consent being given to the assignment of a lease or to the sub-leasing of the premises to which a lease relates; landlord, in relation to a retail lease, means the person who grants or proposes to grant the right to occupy retail premises under the retail lease, and includes – (a) a sublandlord; and (b) a landlord's or sublandlord's heirs, executors, administrators and assigns; and (c) a prospective landlord or a former landlord; landlord's disclosure statement – see section 23 ; lettable area means the area of retail premises, measured in square metres and set out in a retail lease, that is the area for which a tenant pays rent under the retail lease; mediator means a person appointed as a mediator in accordance with section 74 ; option means an option contained in a retail lease for a further lease on substantially the same terms and conditions as the lease; party, in relation to a retail lease, means the landlord, or the tenant, under the lease; regulations means regulations made under this Act; renewal, in relation to a retail lease – see section 60 ; retail lease or lease means an agreement under which a person grants or agrees to grant to another person, for valuable consideration, a right of occupation of premises for the use of the premises as retail premises – (a) whether or not the right of occupation is an exclusive right to occupy the retail premises; and (b) whether the agreement is express or implied; retail leases guide means a retail leases guide determined in accordance with section 21 ; retail premises means premises, other than excluded premises, that are used, or proposed to be used – (a) wholly or predominantly for the carrying on of any one or more of the businesses, or class of businesses, prescribed for the purposes of this definition (whether or not that business, or class of businesses, is carried on in a retail shopping centre); or (b) for the carrying on of any business in a retail shopping centre; retail shopping centre means a cluster of 5 or more premises that has all of the following attributes: (a) at least 5 of the premises are retail premises; (b) the premises are all owned by the same person or have (or if leased would have) the same landlord; (c) the premises are located – (i) in a single building; or (ii) in 2 or more buildings that are – (a) adjoining; or (b) separated only by common areas or other areas owned by the owner of the premises; or (c) separated only by a road or walkway; (d) the cluster of premises is promoted as, or generally regarded as constituting, a shopping centre, shopping mall, shopping court, shopping plaza or shopping arcade; sinking fund means a fund into which a tenant is required to make regular payments to cover the costs associated with the capital or structural maintenance of, or repairs to, any area, building, plant or equipment associated with the retail premises; specialist retail valuer means a person who is specified, in a determination made for the purposes of this definition, as a specialist retail valuer for the purposes of this Act; special rent – see section 47 ; tenant means the person who has the right to occupy retail premises under a retail lease, and includes – (a) a sublessee; and (b) a prospective lessee or a former lessee; turnover rent – see section 46 ; valuer means – (a) a person who – (i) is a member of the Australian Property Institute; and (ii) has expertise in determining the market value of rentals of the kind referred to in section 43 or 44 ; and (iii) has at least 5 years' experience in retail premises valuations in Tasmania; or (b) a person who is specified, in a determination made for the purposes of this definition, as a valuer for the purposes of this Act. ] [Commences: Never commenced 7. When retail leases entered into or assigned For the purposes of this Act, a retail lease is taken to have been entered into or assigned when – (a) under the lease or assignment, the tenant enters into possession of the retail premises with the consent of the landlord; or (b) under the lease or assignment, the tenant begins to pay rent for the retail premises; or (c) the lease or assignment has been signed by all of the parties to the lease – whichever occurs first. ] PART 2 - Application of Act [Commences: Never commenced] 8. Leases to which this Act does not apply (1) Subject to section 9 , this Act does not apply to – (a) a lease of retail premises with a lettable area of more than 1 000 square metres; or (b) a lease of premises if the premises are not retail premises at the time at which the retail lease is entered into or is renewed; or (c) a retail lease for a term of less than 6 months, where there is no right for the tenant to extend the lease (whether by means of an option to extend or to renew the lease or otherwise); or (d) subject to subsections (2) and (3) , a retail lease entered into, or renewed, before the commencement of this section. (2) The Fair Trading (Code of Practice for Retail Tenancies) Regulations 1998 , as in force immediately before this section commences – (a) subject to subsection (3) , continue to apply to a lease, within the meaning of those regulations, referred to in subsection (1)(d) and to which those regulations applied immediately before the commencement of this section; and (b) are taken to remain in force in respect of a lease referred to in paragraph (a) if those regulations are rescinded while this section applies to such a lease. (3) Despite subsection (1) , the regulations may prescribe that any one or more of the provisions of this Act apply in respect of a lease, or class of leases, specified in subsection (1)(d) . 9. Leases to which Act applies (1) Subject to section 8 , this Act applies to a retail lease that is – (a) entered into on or after the commencement of this section; or (b) a lease in a prescribed class of leases. (2) Despite section 8(1)(c) , this Act applies to a retail lease, on and from the day on which the tenant has continuously been in possession of the retail premises for 6 months, if – (a) the term of the retail lease is less than 6 months; and (b) the tenant is continuously in possession of the retail premises for 6 months or more under the lease because of the retail lease being renewed one or more times or being continued (or both). (3) Despite section 8(1)(d) , this Act applies to retail premises if the premises are occupied – (a) before the commencement of this section; and (b) in anticipation of the signing of a retail lease on or after the commencement of this section. 10. Act applies to all retail premises in Tasmania Subject to this Part, this Act applies to a lease that provides for the occupation of retail premises that are located in Tasmania regardless of – (a) where the retail lease is entered into; and (b) whether the retail lease purports to be governed by a law other than a law of Tasmania. 11. Act's provisions implied in retail leases If, under this Act, a duty is imposed, or an entitlement is conferred, on a landlord or on a tenant under a retail lease, the duty or the entitlement is taken to be included in the retail lease. 12. Contracting out of Act prohibited A provision of a retail lease, or another agreement entered into for a retail lease, is void to the extent that it purports to – (a) exclude the application of a provision of this Act that applies to the retail lease; or (b) modify, or limit, the application of a provision of this Act that applies to the retail lease. 13. Act prevails over inconsistent retail leases (1) This Act operates despite the provisions of a retail lease. (2) If a provision of this Act is inconsistent with a provision of a retail lease, the provision of this Act prevails and the provision of the lease is void to the extent of the inconsistency. PART 3 - Administration of Act [Commences: Never commenced] 14. Administration The Director is responsible for the administration of this Act. 15. Functions and powers of Director (1) Subject to subsection (4) , in addition to his or her functions and powers under any other Act, the Director has the following functions: (a) to investigate and research matters relevant to retail leases; (b) to prepare and publish any information or materials on subjects of interest to the parties to retail leases, provided the information or materials are not confidential and cannot identify a party to a retail lease; (c) to provide information to the public, to tenants and to landlords about retail leases and the provisions of this Act; (d) to investigate suspected infringements of this Act and to take appropriate actions to ensure the enforcement of this Act; (e) to ensure that the provisions of this Act are complied with; (f) to report to the Minister in relation to – (i) the operation of this Act; and (ii) any matters, referred to the Director by the Minister, in relation to the administration of this Act; and (iii) the Director's functions; (g) to establish any groups or committees that the Director requires for the purposes of this Act; (h) to appoint any persons for the purposes of this Act; (i) to produce model retail leases for viewing or sale; (j) to participate in any national committees reviewing the operation of laws relating to retail leases; (k) to make arrangements, and to provide administrative assistance, to facilitate the resolution by mediation of a dispute between the parties to a retail lease under this Act; (l) any other functions conferred or imposed on the Director by or under this or any other Act. (2) The Director has – (a) the power to do anything necessary or convenient to be done for or in connection with, or incidental to, the exercise, or the performance, of any power or function conferred or imposed on the Director by this or any other Act; and (b) such other powers as are expressly or impliedly given to the Director by this or any other Act. (3) For the purposes of this Act and without limiting the powers of the Director under subsection (2) , for a purpose in connection with the administration or enforcement of this Act, the Director has the power to – (a) require a person to produce a retail lease for inspection; and (b) retain a retail lease for inspection, or make a copy of it, provided the copy does not contain any information that is confidential or can identify any party to the retail lease; and (c) at any reasonable time, enter and inspect retail premises; and (d) give a person a warning or a caution, if the Director reasonably believes that the person has contravened a provision of this Act and the Director is of the opinion that the matter does not warrant any formal action under this Act. (4) The Director does not have the power to publish any information or materials, or take extracts of any information or materials, that is confidential or can identify any party to a retail lease. 16. Determinations by Director (1) The Director may, in writing – (a) determine a matter that is specified in this Act as a matter in respect of which a determination may be made; and (b) amend or revoke a determination made under paragraph (a) . (2) The Director, before making a determination under subsection (1) , is to consult with any person who the Director considers may have an interest in the content of the determination. (3) The Director must ensure that copies of a determination made under subsection (1)(a) or amended under subsection (1)(b) , that has not been revoked under subsection (1)(b) , are – (a) made available for viewing by the public on a website of the Department in accordance with subsection (5) ; and (b) made available, during ordinary business hours, for viewing or purchase by a member of the public at offices of the Director; and (c) if the Director thinks fit, made available, during ordinary business hours, for viewing by a member of the public in another manner, if any, as determined by the Director. (4) The Director must ensure that notice of the revocation of a determination under subsection (1)(b) is – (a) placed on a website of the Department for at least 12 months after the day on which the revocation takes effect; and (b) if the Director thinks fit, given to members of the public in the manner that is determined by the Director. (5) A determination of a matter by the Director under this section is of no effect at a relevant time if a copy of the determination is not made available, at that time, for viewing by the public on a website of the Department. 17. Determinations of time periods Despite the provisions of this Act, the Director may make a determination that specifies the time period by which an action must be taken by a person for the purposes of complying with a provision of this Act that is specified in the determination. 18. Determinations of codes of practice (1) The Director is to make a determination that a specified document, or other instrument, is a code of practice for retail leases for the purposes of this Act. (2) The provisions of section 47(3) , (3A) , (4) , (5) , (6) and (7) of the Acts Interpretation Act 1931 apply to a determination made for a purpose specified in this section as if a reference in that section to a regulation were a reference to such a determination. 19. Determinations of terms and conditions of retail leases (1) The Director may make a determination that specifies the terms and conditions that apply to a retail lease for the purposes of this Act. (2) The provisions of section 47(3) , (3A) , (4) , (5) , (6) and (7) of the Acts Interpretation Act 1931 apply to a determination made for a purpose specified in this section as if a reference in that section to a regulation were a reference to such a determination. 20. Delegations by Director The Director may, in writing, delegate any of his or her powers and functions under this Act, other than this power of delegation or the power to make a determination, to – (a) a specific person; or (b) a person from time to time holding, acting in, or performing the duties of, a specified office, designation or position. PART 4 - Entering into Retail Leases [Commences: Never commenced] Division 1 - Rights and duties before retail leases entered into 21. Retail leases guide The Director is to make a determination that a specified document, or other instrument, is a retail leases guide for the purposes of this Act. 22. Tenants to be given copy of retail leases A person must not, as a landlord or on behalf of a landlord, offer to enter into a retail lease, invite an offer to enter into a retail lease or indicate by writing or broadcast advertisement that retail premises are for lease, unless the person – (a) has a copy of a proposed retail lease (in written form, but not necessarily including the particulars of the tenant, the rent payable by the tenant or the term of the lease) available for inspection by a prospective tenant; and (b) makes a copy of a proposed retail lease available to any prospective tenant as soon as the person enters into negotiations with the prospective tenant concerning the lease. Penalty: In the case of – (a) a body corporate, a fine not exceeding 100 penalty units; and (b) an individual, a fine not exceeding 50 penalty units. 23. Landlord's disclosure statements (1) Subject to subsection (2) , the Director is to make a determination that specifies the form and the content of a landlord's disclosure statement. (2) A landlord's disclosure statement must – (a) specify – (i) the rent that is payable by the tenant under the retail lease and the method used to calculate that rent; and (ii) when a review of the rent that is payable by the tenant under the retail lease is to take place and the basis on which the review is to be made; and (iii) all other actual costs and charges, or estimated costs and charges, that are payable by the tenant under the retail lease, including, in the case of estimated costs and charges, the method of calculating the estimated costs and charges; and (b) have included with it – (i) a copy of the retail leases guide; and (ii) a copy of the proposed retail lease; and (iii) a copy of the code of practice; and (c) contain a statement notifying the tenant that he or she should seek independent legal advice; and (d) contain, or have attached to it, any information, or material, that is relevant to the retail lease that the Director specifies in a determination made under subsection (1) . (3) If the retail premises are situated in a retail shopping centre, in addition to the requirements of subsections (1) and (2) , the landlord's disclosure statement must also specify – (a) the annual sales of the retail shopping centre; and (b) the annual turnover per square metre of, if possible, at least 3 different categories of retail premises, including but not limited to retail premises selling food, selling other goods or providing a service, in the retail shopping centre; and (c) if the information is readily available, a recent traffic count at the retail shopping centre; and (d) if applicable, details of specific fit-out construction standards that apply in relation to the retail shopping centre; and (e) the current tenant mix and when the leases of major tenants in the retail shopping centre expire; and (f) the permitted uses of the prospective retail premises in the retail shopping centre; and (g) if applicable, the core trading hours of the retail shopping centre and whether any changes to the core trading hours are proposed; and (h) details of any expenditure incurred or to be incurred by the landlord during the term of the lease on account of advertising, promotion and marketing costs to which the tenant is required to contribute under the retail lease. 24. Tenants to be given copy of landlord's disclosure statements and landlords to be given copy of tenant's disclosure statements (1) A landlord must ensure that a tenant is given a copy of the landlord's disclosure statement for a retail lease – (a) at least 7 days before the retail lease is entered into by the tenant; and (b) at least 30 days before a tenant has exercised, or is entitled to exercise, an option to renew a retail lease granted under the retail lease; and (c) at such other interval as is specified in a determination made for the purposes of this subsection. Penalty: In the case of – (a) a body corporate, a fine not exceeding 100 penalty units; and (b) an individual, a fine not exceeding 50 penalty units. (2) The tenant is to sign an acknowledgement of receipt of a copy of the landlord's disclosure statement before signing the retail lease or a document that binds the tenant to enter into the lease or to take the retail premises on lease for a renewed term. (3) The regulations may prescribe the form and content of a tenant's disclosure statement for a retail lease. (4) If the form and content of a tenant's disclosure statement is prescribed under subsection (3) , a tenant must ensure that a landlord is given a copy of the tenant's disclosure statement for a retail lease – (a) at least 7 days before the retail lease is entered into by the tenant; or (b) at such other interval as is agreed by the parties to the retail lease. Penalty: In the case of – (a) a body corporate, a fine not exceeding 10 penalty units; and (b) an individual, a fine not exceeding 10 penalty units. 25. Landlord's disclosure statements and renewals of retail leases If a retail lease is entered into by way of a renewal of the lease, a written statement (a landlord's disclosure update) that updates the provisions of an earlier landlord's disclosure statement given to the tenant is, in conjunction with that earlier landlord's disclosure statement agreement, taken to be a landlord's disclosure statement given at the time at which the landlord's disclosure update is given. 26. Failure of landlords to give landlord's disclosure statements to tenants (1) A tenant may terminate a retail lease by notice in writing to the landlord at any time within 6 months after the lease is entered into if – (a) the tenant has not been given a landlord's disclosure statement; or (b) the landlord's disclosure statement given by the landlord to the tenant is materially incomplete or contains information that at the time at which it was given was materially false or materially misleading. (2) Subject to subsection (3) , if the tenant under a retail lease gives the landlord a notice of termination under subsection (1) , the retail lease terminates upon the expiry of the 14-day period from the day on which the notice was given. (3) Within 14 days after being given the notice of termination under subsection (1) , the landlord may give the tenant a notice of objection to the termination on the grounds that – (a) the landlord has acted honestly and reasonably and ought fairly to be excused for the contravention; and (b) the tenant is substantially in as good a position as the tenant would have been in if there had been no contravention. (4) If the tenant advises the landlord that the tenant accepts the landlord's notice of objection under subsection (3) , the retail lease does not terminate in accordance with subsection (2) . (5) The tenant is taken to have accepted a notice of objection made under subsection (3) if the tenant does not advise the landlord in writing, within 14 days after being given the notice, whether or not the tenant accepts it. (6) The termination of a retail lease under this section does not affect any right, privilege, obligation or liability acquired, accrued or incurred by either party under the retail lease in respect of any period before its termination. 27. Right to compensation for pre-lease misrepresentations (1) A party to a retail lease is liable to pay another party to the lease (the injured party) reasonable compensation for damage suffered by the injured party that is attributable to the injured party entering into the lease as a result of – (a) a false or misleading statement of the other party; or (b) a false or misleading representation of the other party. (2) The giving of a landlord's disclosure statement to a prospective tenant under a retail lease is taken to be the making of a representation by the landlord to the tenant as to the information contained in the disclosure statement. (3) A statement given by the tenant to a prospective landlord under a retail lease – (a) that the prospective tenant has sought independent legal advice; or (b) as to the statements or representations relied on by the prospective tenant in entering the lease – is taken to be the making of a representation by the tenant to the landlord. 28. Retail lease costs (1) Subject to this Act – (a) a tenant is not liable to pay an amount to the landlord for legal or other expenses incurred by the landlord in connection with the preparation of a retail lease; and (b) each party to a proposed retail lease is liable for his, her or its own costs incurred in connection with the preparation of the lease. (2) Despite subsection (1) , a landlord may charge the tenant the cost of any alterations that the tenant has requested to be made to the retail lease. Division 2 - Security deposits 29. Security deposits (1) A retail lease is to specify any amount that is to be paid by a tenant to the landlord as a security deposit for the performance of the tenant's obligations under the lease. (2) A security deposit must be held in trust by the landlord on behalf of the tenant. (3) A landlord must not – (a) require more than one security deposit for the same retail lease; and (b) unreasonably refuse to accept a guarantee from an authorised deposit-taking institution in satisfaction of any requirement to provide a security deposit for the performance of the tenant's obligations under a retail lease. Penalty: In the case of – (a) a body corporate, a fine not exceeding 50 penalty units; and (b) an individual, a fine not exceeding 25 penalty units. (4) A landlord that has received a security deposit from a tenant – (a) must account to the tenant for the interest earned on the security deposit; and (b) is entitled to keep the interest earned on the security deposit and deal with the interest as money paid by the tenant to the landlord that does not form part of the security deposit; and (c) must advise the tenant in writing of – (i) the terms and conditions on which the security deposit is held; and (ii) the grounds on which the landlord may refuse to refund all or part of the security deposit; and (d) is not entitled to keep a guarantee from an authorised deposit-taking institution, provided to the landlord in satisfaction of any requirement to provide a security deposit for the performance of the tenant's obligations under the retail lease, for more than 2 months after a tenant completes the performance of his or her obligations under the retail lease for which the guarantee was provided as security. (5) This section does not affect any lawful entitlement of a landlord to appropriate security deposit payments. 30. Release of security deposits (1) Provided a tenant has performed all of the tenant's obligations under a lease, a landlord and tenant may agree, in writing, to all or part of the amount of a security deposit paid by the tenant to be paid out to the parties in accordance with the terms of that written agreement. (2) Either party to a retail lease may, in writing, seek the agreement of the other party to the lease for all, or part, of the amount of a security deposit to be paid in accordance with subsection (1) . (3) A landlord must release all or part of the amount of a security deposit to the tenant within – (a) if an agreement is made under this section for the release of the amount or part, 60 days of the date of that agreement; or (b) if the release of the amount or part is the result of a dispute determined under Part 11 , 60 days of the date of the resolution of the dispute. (4) In this section, a reference to a security deposit includes a reference to the drawdown by a landlord of a guarantee from an authorised deposit-taking institution that was accepted by the landlord in satisfaction of the requirement of the tenant to pay a security deposit. Division 3 - Entering into retail leases 31. Retail leases to be in writing and signed (1) A landlord, or a tenant, must not enter into a retail lease that is not – (a) in writing; and (b) signed by both parties to the retail lease. Penalty: In the case of – (a) a body corporate, a fine not exceeding 100 penalty units; and (b) an individual, a fine not exceeding 50 penalty units. (2) A landlord, or a tenant, must not amend a retail lease unless the amendment is – (a) in writing; and (b) signed by both parties to the retail lease. Penalty: In the case of – (a) a body corporate, a fine not exceeding 50 penalty units; and (b) an individual, a fine not exceeding 25 penalty units. (3) Nothing in this section means that a retail lease that fails to comply with this section is illegal, invalid or unenforceable. 32. Tenants to be given copy of retail leases A landlord must provide a tenant with an executed, electronic or paper, copy of a retail lease within 60 days after the retail lease is returned to the landlord following its execution by the tenant. Penalty: In the case of – (a) a body corporate, a fine not exceeding 50 penalty units; and (b) an individual, a fine not exceeding 25 penalty units. 33. Tenants not required to pay undisclosed contributions A provision of a retail lease is void to the extent that it requires a tenant to pay or contribute towards the cost of any maintenance, finishes, fixtures, fittings, equipment or services, except where the liability to make the payment or contribution is disclosed in a landlord's disclosure statement. 34. Key-money prohibited (1) A person must not, as a landlord or on behalf of a landlord, seek or accept the payment of key-money. Penalty: In the case of – (a) a body corporate, a fine not exceeding 50 penalty units; and (b) an individual, a fine not exceeding 25 penalty units. (2) A provision of a retail lease is void to the extent that it requires, or has the effect of requiring, the payment of key-money. (3) If a person contravenes this section, whether or not the person is found guilty of an offence against subsection (1) , the tenant is entitled to recover from the landlord as a debt – (a) a payment made by the tenant; or (b) the value of any benefit conferred by the tenant – that was accepted by or on behalf of the landlord in contravention of this section. Division 4 - Outgoings 35. Recovery of outgoings from tenants (1) A tenant under a retail lease is not liable to pay any amount to a landlord in respect of outgoings unless – (a) details of the nature of the outgoings that are to be regarded as recoverable are specified by the landlord in the landlord's disclosure statement together with – (i) an estimate of the amount of the outgoings; and (ii) the basis on which, or the formulae with respect to which, the estimated amount of the outgoings was calculated; and (iii) details as to how those outgoings, or any part of them, may be recovered by the landlord from the tenant; and (b) the liability of the tenant to pay the outgoings, and an estimate of the amount of the outgoings, were disclosed in the landlord's disclosure statement, together with – (i) the basis on which, or the formulae with respect to which, that estimated disclosed amount was calculated; and (ii) how those outgoings, or any part of them, may be recovered by the landlord from the tenant. (2) If a landlord, and a tenant, under a retail lease are both liable to pay an amount in respect of an outgoing – (a) details of the nature of the outgoing are to be specified in the landlord's disclosure statement together with – (i) an estimate of the proportion of the amount of the outgoing that is to be paid by the tenant; and (ii) an estimate of the proportion of the amount of the outgoing that is to be paid by the landlord; and (iii) the basis on which, or the formulae with respect to which, the apportioning of the estimated amount of the outgoing between the tenant and the landlord was calculated; and (iv) how that outgoing, or any part of it, may be recovered by the landlord from the tenant; and (b) the liability of the tenant to pay the estimated proportion of the amount of the outgoing, and the liability of the landlord to pay the estimated proportion of the outgoing, was disclosed in the landlord's disclosure statement, together with – (i) the basis on which, or the formulae with respect to which, the apportioning of the estimated amount of the outgoing between the tenant and the landlord was calculated; and (ii) how that outgoing, or any part of it, may be recovered by the landlord from the tenant. (3) A tenant is entitled to recover from a landlord any amount paid to the landlord that the tenant was not liable to pay because of this section. (4) A tenant is not liable for the following outgoings: (a) any capital expenditure on the building that is the retail premises or the building in which the retail premises are located, other than any capital expenditure – (i) required for the tenant's proposed use and occupation of the building that is the retail premises, or the building in which the retail premises are located, that the tenant has agreed in writing to undertake at the tenant's own cost; or (ii) relating to the fit-out of the building that is the retail premises, or the building in which the retail premises are located, that the tenant has agreed in writing to undertake at the tenant's own cost; or (iii) relating to the maintenance or repairs of any prescribed essential building services, if the retail lease requires the tenant to undertake the repair or maintenance of those prescribed essential building services at the tenant's own cost, or partially at the tenant's own cost; (b) any amount in respect of depreciation; (c) any contribution to a sinking fund to provide for capital works; (d) any amount in respect of interest or other charges incurred by the landlord in respect of amounts borrowed by the landlord; (e) any insurance premium, or excess payable in respect of an insurance premium, for loss of income by the landlord; (f) any amount in respect of rent or other costs payable by the landlord in respect of – (i) premises other than the premises specified in the retail lease; and (ii) land not on which the building, of which the retail premises form a part, is located. 36. Estimates of outgoings and statements of outgoings (1) A landlord must give a tenant a written estimate of outgoings, to which the tenant is liable to contribute under a lease, that itemises those outgoings – (a) before the lease is entered into; and (b) in respect of each of the landlord's accounting periods during the term of the lease. (2) A tenant is not liable to contribute to any outgoings of which an estimate is required to be given to the tenant under subsection (1) until the tenant is given that estimate. (3) A landlord must prepare a written statement of outgoings that itemises all expenditure in respect of outgoings by the landlord, in each of the landlord's accounting periods during the term of the lease, to which the tenant is liable to contribute under the lease. (4) After preparing a written statement of outgoings under subsection (3) , the landlord is to give the tenant a copy of the written statement. (5) A landlord is to keep a copy of – (a) all written estimates of outgoings provided to a tenant in accordance with subsection (1) for the duration of the retail lease to which the estimate of outgoings relates; and (b) all written statements of outgoings provided to a tenant in accordance with subsection (3) for the duration of the retail lease to which the written statements relate. (6) A tenant can withhold payment for any outgoings payable by the tenant under a retail lease if the landlord has not provided the tenant with a written statement of outgoings in accordance with subsection (4) . 37. Audit of outgoings reports (1) A tenant may request, in writing, a landlord to appoint an auditor for the purposes of providing to the tenant a report, for an accounting period specified in the request, which audits – (a) the outgoings specified in a written estimate of outgoings provided to a tenant in accordance with section 36(1) ; and (b) the outgoings specified in a written statement of outgoings provided to the tenant in accordance with section 36(4) . (2) Within 30 days after the day on which a landlord receives a written request under subsection (1) , the landlord must appoint an auditor for the purposes of preparing the report. Penalty: In the case of – (a) a body corporate, a fine not exceeding 50 penalty units; and (b) an individual, a fine not exceeding 25 penalty units. (3) A landlord must provide an auditor, appointed by the landlord under subsection (2) , with any information or documentation that the auditor requires to prepare the relevant report. Penalty: In the case of – (a) a body corporate, a fine not exceeding 50 penalty units; and (b) an individual, a fine not exceeding 25 penalty units. (4) An auditor is to – (a) prepare a written report – (i) in accordance with the relevant principles and disclosure requirements of the applicable accounting standards (as in force from time to time) made by the Australian Accounting Standards Board of the Commonwealth; and (ii) that states whether or not the outgoings specified in a written estimate of outgoings for the relevant accounting period have been expended, and charged, in accordance with the written estimate of outgoings and the relevant retail lease; and (iii) that states whether or not the outgoings specified in a written statement of outgoings for the relevant accounting period have been expended, and charged, in accordance with the written statement of outgoings and the relevant retail lease; and (b) when the auditor has finalised the report, provide the landlord and the tenant with a copy of that finalised report. (5) The cost of a report prepared and finalised by an auditor in accordance with this section is to be paid by – (a) the tenant who requested the report under subsection (1) , if the report states that the outgoings specified in the written estimate of outgoings or the written statement of outgoings are more than 95% accurate; or (b) the landlord who appointed the auditor under subsection (2) , if the report states that the outgoings specified in the written estimate of outgoings or the written statement of outgoings are 95% or less than 95% accurate. 38. Adjustment of contributions to outgoings (1) If the finalised report of an auditor, provided to a landlord and tenant under section 37(4)(b) , states that the outgoings, as specified in the written estimate of outgoings provided to the tenant under section 36(1) , have not been expended, and charged, in accordance with the estimate and the relevant retail lease, there is to be an adjustment between the landlord and tenant for the relevant accounting period during the term of the retail lease to take account of any underpayment or overpayment by the tenant in respect of outgoings during that accounting period. (2) An adjustment of outgoings under subsection (1) in respect of an accounting period is to take place – (a) within one month after the landlord gives the tenant the written estimate of outgoings under section 36(1) for the accounting period; or (b) within 4 months after the end of the relevant accounting period – whichever is earlier. (3) If the finalised report of an auditor, provided to a landlord and tenant under section 37(4)(b) , states that the outgoings, as specified in the written statement of outgoings provided to the tenant under section 36(4) , have not been expended, and charged, in accordance with the statement and the relevant retail lease, there is to be an adjustment between the landlord and tenant for the relevant accounting period during the term of the retail lease to take account of any underpayment or overpayment by the tenant in respect of outgoings during that period. (4) An adjustment of outgoings under subsection (3) in respect of an accounting period is to take place – (a) within one month after the landlord gives the tenant a copy of the written statement of outgoings under section 36(4) for the accounting period; or (b) within 4 months after the end of the relevant accounting period – whichever is earlier. PART 5 - Rent [Commences: Never commenced] 39. When rent is payable Unless otherwise specified in a retail lease, a tenant is not liable to pay rent, or another amount payable by the tenant (such as an amount payable in respect of outgoings), in respect of any period – (a) before the tenant has entered into possession of the retail premises (whether or not the tenant is required to enter into possession by a specified date); and (b) before the landlord has substantially complied with the landlord's fit-out obligations set out in the retail lease. 40. GST payments Unless otherwise specified in a retail lease, the rent and outgoings specified in a retail lease are taken to be exclusive of GST, within the meaning of the A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth. 41. Basis or formula used to calculate rent (1) A retail lease must specify the amount, basis or formula that is used to calculate or determine the rent payable by the tenant under the retail lease. (2) For the purposes of subsection (1) , the amount, basis or formula that is specified in a retail lease must be one, or any combination of one or more, of the following: (a) a fixed percentage; (b) an independently published index of prices or wages; (c) a fixed annual amount; (d) the current market rent; (e) the base rent; (f) the turnover rent; (g) the special rent; (h) a basis or formula prescribed by the regulations. (3) A provision in a retail lease is void to the extent that it purports to preclude, or prevents or enables a person to prevent, the reduction of the rent or to limit the extent to which the rent may be reduced. (4) However, subsection (3) does not apply to a provision that uses an amount, basis or formula referred to in subsection (2)(a) , (b) or (c) . 42. Timing and basis of rent reviews (1) If a retail lease provides for a review of the rent payable under the lease, or under an option to renew or extend the lease, the lease must state – (a) when the review is to take place; and (b) the basis on which, or formulae with respect to which, the review is to be made. (2) A retail lease must not provide for a review of the rent to be made more frequently than once in each 12-month period after the first anniversary of the commencement of the lease. (3) For the avoidance of doubt, subsection (2) does not apply to – (a) the first year of a retail lease; or (b) a change to the rent by a specified amount or a specified percentage that is set out in the retail lease. (4) A retail lease may provide for a review of the rent to be made using different bases or formulae during the term of the retail lease, but each review must be made using only one basis or formula. (5) If a lease does not state the date on which a proposed review of the rent is due or the basis on which, or formulae in respect of which, the review of the rent is to be made, an adjustment to the rent is not to be made. (6) A provision of a retail lease is void to the extent that it – (a) prohibits a reduction of the rent, unless the reduction of rent is in accordance with section 41(4) ; or (b) reserves or has the effect of reserving to one party to the retail lease a discretion to decide which of two or more bases or formulae for calculating a change to the rent is to apply on a particular occasion; or (c) provides a basis or formula for calculating a change to the rent but reserves or has the effect of reserving to one party a discretion to decide whether or not the rent is to be changed in accordance with that basis or formula on a particular occasion; or (d) provides for the rent to change on a particular occasion in accordance with whichever of two or more bases or formulae for calculating the change would result in the higher or highest rent. (7) A rent review is to be conducted as early as possible within the time period provided by the retail lease, and, if the landlord has not initiated the review within 90 days after the end of that period, the tenant may initiate the review. 43. Meaning of current market rent (1) A retail lease that provides for rent to be calculated or reviewed by the current market rent, or that provides an option to renew or extend the lease at current market rent, is taken to include provisions to the following effect: (a) the current market rent is the rent that would reasonably be expected to be paid for the retail premises, determined on an effective rent basis, having regard to the following matters: (i) the provisions of the retail lease; (ii) the rent that would reasonably be expected to be paid for the retail premises, in a free and open market between a willing landlord and a willing tenant in an arm's length transaction, if they were unoccupied and offered for rent for the same or substantially similar use to which the retail premises may be put under the lease; (iii) the gross rent, less the landlord's outgoings payable by the tenant; (iv) rent concessions and other benefits that are frequently or generally offered to prospective tenants of unoccupied retail premises; (b) for paragraph (a), the current market rent is not to take into account the value of goodwill created by the tenant's occupation or the value of the tenant's fixtures and fittings on the retail premises. (2) If a landlord and a tenant do not agree on what the amount of the current market rent is to be, it is to be determined by a valuation carried out by a specialist retail valuer appointed by – (a) an agreement between the landlord and the tenant; or (b) if there is no agreement, the Director. (3) A landlord and a tenant are to pay the costs of a valuation by a specialist retail valuer in equal shares. (4) A landlord must, within 14 days after a request is made to the landlord by the specialist retail valuer, supply the valuer with relevant information about retail leases for retail premises located in the same building or retail shopping centre to assist the valuer to determine the current market rent. Penalty: In the case of – (a) a body corporate, a fine not exceeding 50 penalty units; and (b) an individual, a fine not exceeding 25 penalty units. (5) In determining the amount of current market rent, a specialist retail valuer must take into account the matters set out in subsection (1) . (6) A valuation of current market rent carried out by a specialist retail valuer is to – (a) be in writing; and (b) contain detailed reasons for the specialist retail valuer's determination; and (c) specify the matters to which the valuer had regard in making the determination. (7) A specialist retail valuer must carry out the valuation of current market rent not later than 60 days after accepting the appointment. 44. Review of valuations of market rent (1) If, within 21 days after the date on which a valuation of current market rent is carried out under section 43 , the landlord or the tenant disputes that valuation, the landlord or the tenant may apply to the Director for a review of that current market rent valuation. (2) An application under subsection (1) is to – (a) be in writing; and (b) include a copy of the valuation of current market rent that is the subject of the review. (3) On receipt of an application under subsection (1) , the Director is to appoint 2 specialist retail valuers – (a) to each carry out an independent valuation of the current market rent; and (b) to agree on the amount of that valuation, taking into account the matters set out in section 43(1) . (4) A landlord must, not later than 14 days after a request by a specialist retail valuer is made to the landlord, supply the valuer with all relevant information about retail leases for retail premises situated in the same building or retail shopping centre to enable the valuers to carry out the independent valuation of the current market rent of the retail premises that are the subject of the valuation. Penalty: In the case of – (a) a body corporate, a fine not exceeding 50 penalty units; and (b) an individual, a fine not exceeding 25 penalty units. (5) An independent valuation of current market rent that is agreed on by both specialist retail valuers is to – (a) be in writing; and (b) contain detailed reasons for the specialist retail valuers' determination; and (c) specify the matters to which the valuers had regard in making the valuation and determination of the current market rent. (6) The specialist retail valuers appointed under this section, to undertake an independent valuation of current market rent, must carry out that valuation no later than one month after accepting the appointment. (7) If the specialist retail valuers cannot agree on the amount of the independent valuation of current market rent carried out for the purposes of this section, the original valuation made in accordance with section 43 stands. (8) The parties to a retail lease are to pay in equal shares the costs of a review of a valuation under this section. 45. Exercise of options to renew retail leases (1) A lease which includes an option to renew is to specify the period for which the renewed lease is to apply. (2) If an option provides that rent for the first year of the option will be at current market rent, the tenant, no less than 4 months or more than 6 months before the expiry of the period, specified in the lease, within which the option may be exercised, may request the landlord to state the proposed rent to apply from the commencement of the new lease period. (3) A request under subsection (2) is to be in writing. (4) If a request is made under subsection (2) , the landlord is to give written notice of the amount of the proposed rent not less than 3 months before the expiry of the period to exercise the option. (5) Within 30 days after receiving the landlord's notice under subsection (4) , the tenant is to notify the landlord that the tenant – (a) exercises the option at the rent proposed; or (b) does not agree with the rent proposed, but wishes to negotiate an amount in accordance with section 43 . (6) If a landlord fails to comply with this section, the rent to apply in the first year of the new lease period is to be determined in accordance with section 43 . (7) If a tenant fails to comply with this section, the rent proposed by the landlord is to be the rent that is payable in the first year of the new lease period. (8) If a tenant does not make a request under subsection (2) , or notifies the landlord that the tenant wishes to negotiate the rent under subsection (5)(b) , the landlord and tenant may agree, at any time before the option is due to be exercised, on the rent that is to apply in the first year of the new lease period. (9) If a landlord and tenant cannot agree on the rent to apply under an option, either party may initiate an independent valuation in accordance with section 43 before the expiry of the period within which the option may be exercised. (10) A landlord may refuse to grant a new lease if – (a) the tenant does not exercise the option by the required date; or (b) at the time of exercising the option or before the commencement of the new lease, the tenant is in default under the existing lease. (11) Despite subsection (10) if a tenant or a landlord initiates an independent valuation, in accordance with section 43 , under subsection (9) and the period within which an option may be exercised expires while the independent valuation is being carried out, the period to exercise that option is taken not to expire until one month after the tenant or landlord receives a valuation of current market rent in accordance with section 43(6) . 46. Meaning of turnover rent (1) A provision in a retail lease that specifies that the rent is to be determined either fully or partly by reference to the turnover in relation to the retail premises is void unless the lease specifies how the rent is to be so determined. (2) For the purposes of any provision of a retail lease that relates to the determination of rent or a component of rent by reference to the turnover in relation to the retail premises, turnover does not include any of the following items: (a) any loss incurred in the resale or disposal of goods reasonably and properly purchased from a customer as a trade-in in the usual course of business; (b) any deposit or instalment received on account of a lay-by, hire-purchase or credit sale which is refunded to a customer; (c) any payment for merchandise or services that is refunded; (d) any services, finance or interest charge payable by the tenant to any financier in connection with provision of credit to a customer, other than a commission on credit or store cards; (e) the exchange of merchandise between retail premises of the tenant if the exchange is made solely for the convenient operation of the business of the tenant and not for the purpose of consummating a sale made at the premises; (f) any return to a shipper, wholesaler or manufacturer; (g) any sale of the tenant's fixtures and fittings after their use in the conduct of the business at the premises; (h) any discount allowed to customers in the normal course of business; (i) any uncollected credit account that is written off; (j) any purchase tax, receipt tax or other similar tax imposed on the purchase price or cost of hire of merchandise or services at the point of sale or hire; (k) any sale of lottery tickets or similar tickets other than commissions. (3) A landlord may require that the turnover figures provided by a tenant be audited. (4) A landlord is to keep the turnover figures provided by a tenant confidential. 47. Meaning of special rent (1) A tenant and a landlord may agree to a special rent, in addition to any other rent, to cover the cost of fit-out, fixtures, fittings and equipment provided or installed by the landlord at the landlord's expense. (2) An agreement under subsection (1) is to be in writing. 48. Meaning of base rent For the purposes of any provision of a retail lease that relates to the determination of rent or a component of rent by reference to the base rent, base rent means rent, or that component of rent, which comprises an amount of money that is specified in the retail lease, whether or not there is provision in the retail lease for the amount of base rent to change. PART 6 - Alterations, Refurbishment, Relocation and Other Interferences [Commences: Never commenced] 49. Tenants to be given notice of alterations and refurbishments (1) Subject to subsection (3) , a retail lease is taken to provide that a landlord must not commence an alteration or refurbishment of the building or a retail shopping centre, of which the retail premises form a part, that is likely to adversely affect the business of the tenant, unless – (a) the landlord has notified the tenant in writing of the proposed alteration or refurbishment at least 60 days before it is commenced; or (b) the alteration or refurbishment is necessary because of an emergency and the landlord has given the tenant the maximum period of notice that is reasonably practicable in the circumstances. (2) A landlord must not commence an alteration or refurbishment of a building or a retail shopping centre, as referred to in subsection (1) , unless the landlord has provided notice to the tenant in accordance with that subsection. Penalty: In the case of – (a) a body corporate, a fine not exceeding 50 penalty units; and (b) an individual, a fine not exceeding 25 penalty units. (3) This section does not apply to routine maintenance or routine repairs. 50. Compensation (1) A landlord is to compensate a tenant if the landlord – (a) inhibits access of the tenant to the retail premises rented by the tenant in any substantial manner; or (b) takes any action, other than action required under any legislation, that would substantially alter or inhibit the flow of customers to the retail premises; or (c) causes, or fails to make reasonable efforts to prevent or remove, anything which adversely affects the tenant's trading; or (d) fails to have rectified as soon as practicable any breakdown of plant or equipment – (i) which is under the landlord's care and maintenance; and (ii) the breakdown of which causes a loss of profits to the tenant; or (e) acts in a manner which, in all the circumstances, is unconsci