s 3

Terms used

In force

(1)

In this Act, unless the contrary intention appears —

accountant means a member of —

(a)

The Institute of Chartered Accountants in Australia; or

(b)

CPA Australia Ltd; or

(c)

the Institute of Public Accountants;

accounting year in relation to a lease, means the accounting year specified in the lease or, if not so specified, a financial year;

building includes any structure;

business, in relation to a retail shop lease, means the business carried on or to be carried on at or from the retail shop the subject of the lease;

common area, in relation to a retail shopping centre, means an area within or adjacent to the centre that is intended for use by the public or for use in common by tenants of premises in the centre in connection with the conduct of business at premises in the centre and includes all stairways, escalators, elevators, malls, walkways, trafficways, parking areas, toilets, restrooms, gardens and fountains intended for any such use;

goodwill, in relation to a business, means an intangible saleable asset, separate and distinct from the stock, fixtures, fittings, and other tangible assets of the business, arising from the reputation of the business, the relations formed with customers of the business, and the nature of the location of the business;

group of premises means —

(a)

a retail shopping centre; or

(b)

2 or more premises, at least one of which is a retail shop, that are adjacent, or form a cluster —

(i)

which have, or on being leased would have, a common head lessor; and

(ii)

are grouped together for the purpose of allocating to each of those premises a portion of an item of operating expenses;

key‑money means —

(a)

money that is to be paid by, or at the request or direction of, a tenant; or

(b)

any benefit that is to be conferred by, or at the request or direction of, a tenant,

by way of a premium or something of a like nature in consideration of the granting of, or agreeing to grant, a lease or the renewal of a lease or the consenting to an assignment of a lease or the sub‑leasing of the premises the subject of a lease;

landlord, in relation to a lease, means —

(a)

the person who, under the lease, grants or is to grant to the tenant the entitlement to occupy the premises the subject of the lease; or

(b)

a person who obtains a reversionary interest in those premises,

but does not include a person who assigns his interest as tenant under the lease;

lease means any lease, licence, or agreement, whether in writing or not, that provides for the occupation of premises situated within the State whether for a term or by way of a periodic tenancy or a tenancy at will, and whether or not the lease, licence, or agreement is entered into outside the State or purports to be governed by any law other than the law of the State but does not include a licence or agreement relating to the common area of a retail shopping centre by reason only that it provides for a person to use a portion of the common area the continued use of which as a portion of the common area is not intended to be otherwise precluded;

lettable area, of a retail shop, means an area of the shop defined or calculated —

(a)

in such manner as is prescribed by the regulations; and

(b)

if the shop is part of a group of premises, in the same, or a substantially similar, manner as the area for each other retail shop in the group of premises is defined or calculated;

management fees means fees in respect of costs for or incidental to the collection of rent or other moneys or the management of premises including, but not limited to, such of those costs —

(a)

in respect of —

(i)

management offices;

(ii)

plant and equipment;

(iii)

staff;

and

(b)

as are of a kind prescribed;

misleading or deceptive conduct application means an application under section 16D(1);

retail business means —

(a)

a business that wholly or predominantly involves the sale of goods by retail; or

(b)

a specified business;

retail shop means —

(a)

any premises situated in a retail shopping centre that are used wholly or predominantly for the carrying on of a business; or

(b)

any premises not situated in a retail shopping centre that are used wholly or predominantly for the carrying on of a retail business,

but does not include any premises excluded by regulation;

retail shop lease means a lease that provides for the occupation of a retail shop, unless —

(a)

the retail shop —

(i)

has a lettable area that exceeds 1 000 square metres; and

(ii)

is not of a kind prescribed by the regulations for the purposes of this definition;

(b)

the lease is held by —

(i)

a listed corporation (within the meaning of the Corporations Act 2001 (Commonwealth) section 9) that would not be eligible to be incorporated as a proprietary company; or

(ii)

a subsidiary (within the meaning of the Corporations Act 2001 (Commonwealth) section 9) of such a corporation;

(c)

the lease is held by —

(i)

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

(ii)

a subsidiary (within the meaning of the Corporations Act 2001 (Commonwealth) section 9) of such a body corporate;

(d)

the lease is of a kind that is prescribed by the regulations as exempt from the operation of this Act;

retail shopping centre means a cluster of premises —

(a)

5 or more of which are used for the carrying on of a retail business; and

(b)

all of which —

(i)

have, or upon being leased would have, a common head lessor; or

(ia)

comprise lots in a community titles scheme under the Community Titles Act 2018; or

(ii)

comprise lots on a single strata plan under the Strata Titles Act 1985,

but, if the premises are in a building with 2 or more floor levels, includes only those levels of the building where a retail business is situated;

Small Business Commissioner means the Commissioner as defined in the Small Business Development Corporation Act 1983 section 3(1);

specified business means a business of a kind prescribed by the regulations to be a specified business;

tenant, in relation to a lease, means the person who, under the lease, is or would be entitled to occupy the premises the subject of the lease;

Tribunal means the State Administrative Tribunal;

unconscionable conduct application means an application under section 15F(1).

(2)

Where the parties to a retail shop lease enter into, either before or after entering into the retail shop lease, a written or oral agreement or arrangement that contains a provision which if contained in the retail shop lease would be void, that provision is for the purposes of this Act deemed to be contained in the retail shop lease and this Act applies to and in relation to that provision as if it were so contained.

(3)

A reference in this Act to a question arising under a retail shop lease includes a reference to —

(a)

a question whether or not a lease exists or has existed, including a question as to forfeiture; or

(b)

a question whether or not a lease is or was a retail shop lease; or

(c)

a question arising —

(i)

in relation to any communication, including a disclosure statement under section 6, between the parties to the retail shop lease, prior to their entry into the retail shop lease, which communication was material to the terms and conditions of the retail shop lease; or

(ii)

in relation to the retail shop lease under a provision of this Act;

(d)

a matter that is in dispute between the landlord and the tenant under section 12 in relation to —

(i)

operating expenses of the landlord under the retail shop lease generally; or

(ii)

an allocation made under section 12(1)(b) of the proportion of those operating expenses; or

(iii)

a determination of the relevant proportion for the purposes of section 12;

(e)

any other matter that is in dispute between the landlord and the tenant in connection with the retail shop lease, whether or not that matter is dealt with by the provisions of the retail shop lease.

(4)

For the purposes of this Act a retail shop lease is entered into when —

(a)

under the retail shop lease, the tenant enters into possession of, or commences to pay rent in respect of, the premises the subject thereof; or

(b)

where the retail shop lease is in writing, all of the parties thereto have signed the retail shop lease,

whichever first occurs.

[Section 3 amended: No. 49 of 1985 s. 3; No. 48 of 1990 s. 4; No. 56 of 1997 s. 24; No. 66 of 1998 s. 4; No. 10 of 2001 s. 38; No. 55 of 2004 s. 117; No. 47 of 2006 s. 21; No. 20 of 2011 s. 30; No. 59 of 2011 s. 5; No. 17 of 2014 s. 14; No. 32 of 2018 s. 194.]

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