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The main purpose of this Act is to replace the scheme in the Retail Tenancies Reform Act 1998 with a new scheme to enhance—
the certainty and fairness of retail leasing arrangements between landlords and tenants; and
the mechanisms available to resolve disputes concerning leases of retail premises.
Section 1 and this section (other than subsection (4)) come into operation on the day after the day on which this Act receives the Royal Assent.
Part 12 comes into operation immediately before the commencement of section 118.
Sections 49 and 50 come into operation on 1 July 2003.
Part 13 is deemed to have come into operation at the last moment of 30 June 1998.
The remaining provisions of this Act (including subsection (4) of this section) come into operation on 1 May 2003.
In this Act—
S. 3 def. of accountant amended by No. 36/2011 s. 39.
accountant means a member of—
the Institute of Chartered Accountants in Australia; or
CPA Australia (ACN 008 392 452); or
the Institute of Public Accountants;
S. 3 def. of accounting period inserted by No. 82/2005 s. 4.
accounting period, in relation to a retail premises lease, means the period of 12 months specified in the lease as the accounting period for the purposes of the lease;
S. 3 def. of applicable industry code amended by No. 21/2012 s. 239(Sch. 6 item 37.1).
applicable industry code has the meaning given by section 51ACA of the Competition and Consumer Act 2010 of the Commonwealth;
assignment of a retail premises lease has a meaning affected by section 8;
building includes any structure;
common areas of a retail shopping centre has the meaning given by section 6;
dispute arising under or in relation to a retail premises lease includes a dispute arising under or in relation to the lease under a provision of this Act;
S. 3 def. of essential safety measure inserted by No. 26/2020 s. 4(1).
essential safety measure has the same meaning as in the Building Regulations 2018 or any subsequent corresponding regulations;
Note
See section 30 of the Interpretation of Legislation Act 1984.
fit out of retail premises includes the provision or installation of finishes, fixtures, fittings, equipment and services;
GST has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth;
S. 3 def. of industry code amended by No. 21/2012 s. 239(Sch. 6 item 37.2).
industry code has the meaning given by section 51ACA of the Competition and Consumer Act 2010 of the Commonwealth;
key-money means money that a tenant is to pay, or a benefit that a tenant is to give, that is—
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 (for example, it is so disproportionate to the benefit that it cannot be true consideration); and
in consideration of—
a lease being granted or an agreement being made to grant a lease; or
the variation of a lease; or
the renewal of a lease or the granting of an option for the renewal of a lease; or
consent being given to the assignment of a lease or to the sub-leasing of the premises to which a lease relates;
landlord under a retail premises lease—
means the person who under the lease is entitled to the rent payable for the premises; and
in Part 10, includes a former landlord (because of section 83);
lease—
means a lease, sub-lease, or an agreement for a lease or sub‑lease, whether or not in writing; and
in Part 10, includes a former lease (because of section 83);
S. 3 def. of legal practitioner substituted by No. 18/2005 s. 18(Sch. 1 item 92), amended by No. 17/2014 s. 160(Sch. 2 item 85).
legal practitioner means an Australian lawyer;
S. 3 def. of outgoings amended by No. 26/2020 s. 4(2).
outgoings means a landlord's outgoings on account of any of the following—
the expenses (including the cost, or part of the cost, of repairs or maintenance work in respect of an essential safety measure or an installation referred to in section 41(2)(b)(ii)) directly attributable to the operation, maintenance or repair of—
the building in which the retail premises are located or any other building or area owned by the landlord and used in association with the building in which the retail premises are located; or
in the case of retail premises in a retail shopping centre, any building in the centre or any areas used in association with a building in the centre;
rates, taxes, levies, premiums or charges payable by the landlord because the landlord is—
the owner or occupier of a building referred to in paragraph (a) or of the land on which such a building is erected; or
the supplier of a taxable supply, within the meaning of the A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth, in respect of any such building or land;
renewal of a retail premises lease has the meaning given by section 9;
retail premises has the meaning given by section 4;
retail shopping centre means a cluster of premises that has all of these attributes—
at least 5 of the premises are retail premises;
the premises are all owned by the same person or have (or would have if leased) the same landlord or the same head landlord;
the premises are located—
in a single building; or
in 2 or more buildings that are—
adjoining; or
separated only by common areas or other areas owned by the owner of the retail premises; or
separated only by a road;
the cluster of premises is promoted as, or generally regarded as constituting, a shopping centre, shopping mall, shopping court or shopping arcade;
retail tenancy dispute in Part 10 has the meaning given by section 81;
S. 3 def. of Small Business Commission inserted by No. 16/2017 s. 32(b).
Small Business Commission means the Small Business Commission established under section 4 of the Small Business Commission Act 2017;
S. 3 def. of Small Business Commis-sioner repealed by No. 16/2017 s. 32(a).
* * * * *
specialist retail valuer means—
for the purposes of a valuation relating to retail premises in a retail shopping centre, a valuer having not less than 5 years' experience in valuing retail premises located in regional or sub‑regional shopping centres; or
for the purposes of a valuation relating to any other retail premises, a valuer having not less than 5 years' experience in valuing retail premises;
tenant under a retail premises lease—
means the person who under the lease is entitled to occupy the premises; and
in Part 10, includes a former tenant (because of section 83);
Tribunal means the Victorian Civil and Administrative Tribunal established by the Victorian Civil and Administrative Tribunal Act 1998.
S. 4(1) amended by No. 82/2005 s. 5(1)(2).
In this Act, retail premises means premises, not including any area intended for use as a residence, that under the terms of the lease relating to the premises are used, or are to be used, wholly or predominantly for—
the sale or hire of goods by retail or the retail provision of services; or
the carrying on of a specified business or a specified kind of business that the Minister determines under section 5 is a business to which this paragraph applies.
However, retail premises does not include the following premises—
premises in respect of which the occupancy costs (as defined in subsection (3)) under the lease concerned is more than the amount prescribed by the regulations for the purposes of this paragraph;
premises that are used wholly or predominantly for the carrying on of a business by a tenant on behalf of the landlord as the landlord's employee or agent;
premises the tenant of which is—
a listed corporation (as defined in section 9 of the Corporations Act); or
a subsidiary (as defined in section 9 of the Corporations Act) of such a corporation;
premises the tenant of which is—
S. 4(2)(d)(i) substituted by No. 82/2005 s. 5(3).
a body corporate whose securities are listed on a stock exchange, outside Australia and the external territories, that is a member of the World Federation of Exchanges; or
a subsidiary (as defined in section 9 of the Corporations Act) of such a body corporate;
premises used wholly or predominantly for the carrying on of a specified business or a specified kind of business that the Minister determines under section 5 is a business to which this paragraph applies;
S. 4(2)(f) amended by No. 82/2005 s. 5(4).
premises of a kind that the Minister determines under section 5 are premises to which this paragraph applies;
S. 4(2)(g) inserted by No. 82/2005 s. 5(5).
premises the tenant of which is a kind of tenant that the Minister determines under section 5 is a tenant to which this paragraph applies;
S. 4(2)(h) inserted by No. 82/2005 s. 5(5).
premises the lease relating to which is a kind of lease that the Minister determines under section 5 is a lease to which this paragraph applies.
In subsection (2)(a), occupancy costs means—
the rent payable under the lease, not being rent (or any part of rent) that is to be determined by reference to the turnover of a business; and
S. 4(3)(b) substituted by No. 82/2005 s. 5(6).
the outgoings, as estimated by the landlord, to which the tenant is liable to contribute under the lease; and
Note
Section 46 requires the landlord to give the tenant a written estimate of the outgoings to which the tenant is liable to contribute.
any other costs of a prescribed kind that the tenant is liable to pay under the lease.
Regulations made for the purposes of subsection (2)(a) may—
prescribe an amount; or
prescribe a method by which an amount may be calculated.
Note
This Act may not apply to certain premises because of Part 3 (Application of the Act).
The Minister may, by notice published in the Government Gazette—
determine that a business is a business or a kind of business to which section 4(1)(b) applies; or
determine that a business is a business or a kind of business to which section 4(2)(e) applies; or
S. 5(1)(c) amended by No. 82/2005 s. 6(1).
determine that a kind of premises are premises to which section 4(2)(f) applies; or
S. 5(1)(d) inserted by No. 82/2005 s. 6(2).
determine that a kind of tenant is a tenant to which section 4(2)(g) applies; or
S. 5(1)(e) inserted by No. 82/2005 s. 6(2).
determine that a kind of lease is a lease to which section 4(2)(h) applies.
S. 5(1A) inserted by No. 82/2005 s. 6(3).
An instrument made under subsection (1) may leave any matter to be certified by a Minister.
S. 5(1B) inserted by No. 82/2005 s. 6(3).
An instrument made under subsection (1) may provide that it has effect on and from 1 May 2003 or such later date (whether before, on or after the date on which the instrument is made) as is specified in the instrument as the date on which it comes into effect.
The powers conferred by subsection (1) to make an instrument are subject to the instrument being disallowed by the Parliament.
Section 15 and Part 5 of the Subordinate Legislation Act 1994 apply to an instrument made under subsection (1) as though—
the instrument were a statutory rule (within the meaning of that Act); and
notice of the making of the statutory rule had been published in the Government Gazette when the instrument was published in the Government Gazette.
In this Act, the common areas of a retail shopping centre means the areas in or adjacent to the centre that are under the control of the landlord and are used or intended for use—
by the public; or
in common by the tenants of premises in the centre relating to the carrying on of businesses on those premises—
other than any areas in respect of which there is a retail premises lease to which this Act applies.
The common areas of a retail shopping centre include—
stairways, escalators and elevators; and
malls and walkways; and
parking areas; and
toilets and rest rooms; and
gardens and fountains; and
information, entertainment, community and leisure facilities.
S. 7 substituted by No. 82/2005 s. 7.
For the purposes of this Act, a retail premises lease is entered into or assigned when—
under the lease or assignment, the tenant enters into possession of the premises with the consent of the landlord; or
under the lease or assignment, the tenant begins to pay rent for the premises; or
the lease or assignment has been signed by all of the parties to it—
whichever first occurs.
For the purposes of this Act, an assignment of a retail premises lease is taken to be a continuation of that lease (and not the entering into of a new lease).
In this Act, the renewal of a retail premises lease means the renewal of the lease—
under an option granted under the lease for a further term; or
S. 9(1)(b) amended by No. 82/2005 s. 8.
under an agreement to renew the lease on substantially the same terms and conditions, except as to rent, for a further term entered into by all of the parties to the lease.
However, if—
after a retail premises lease expires, there is a break in the tenant's possession of the premises; and
the tenant resumes possession of the premises for a further term (whether or not on the same terms and conditions as under the expired lease)—
the resumption of possession of the premises is taken not to be a renewal of the expired lease and is instead taken to be the entering into of a new lease for the purposes of this Act.
The renewal of a retail premises lease is not to be taken to be the entering into of a retail premises lease for the purposes of section 17 (landlord's disclosure statement).
If, in accordance with a retail premises lease, the tenant continues to be in possession of the retail premises for a period after the lease has expired, the lease is taken to continue for the purposes of this Act while the tenant is in possession of the premises.
This Act applies to a retail premises lease that is—
entered into after the commencement of this section; or
renewed after the commencement of this section, whether the lease was entered into before or after that commencement.
Except as provided by Part 10 (Dispute Resolution), this Act only applies to a lease of premises if the premises are retail premises (as defined in section 4) at the time the lease is entered into or renewed.
Note
Sections 36 and 76(1) extend the application of certain provisions of this Act to certain leases entered into or renewed before the commencement of this section.
This Act does not apply to a retail premises lease for a term of less than one year.
S. 12(2) amended by No. 82/2005 s. 9(a)(b).
However, if the term of a retail premises lease is less than one year and as a result of either or both of the following—
the lease being renewed (one or more times);
the lease being continued—
the tenant is continuously in possession of the retail premises for one year or more under the lease after the commencement of this section, this Act applies to the lease on and from the day on which the tenant has continuously been in possession of the retail premises for one year after that commencement.
If this Act applies to a lease because of subsection (2)—
section 17 (landlord's disclosure statement) does not apply to the lease; and
section 26 (landlord's disclosure on renewal of lease) applies to the lease with these changes—
section 26(1) is taken to provide that the landlord must give the tenant the disclosure statement referred to in that section within 60 days after this Act begins to apply to the lease;
section 26(3) is taken to provide that if the tenant has not been given the disclosure statement within that time, the tenant may give the landlord the notice referred to in that section no earlier than 7 days and no later than 90 days after this Act begins to apply to the lease;
section 26(5)(b) is taken to refer to when this Act begins to apply to the lease.