Retail Shop Leases Regulation 2006

1Short title

This regulation may be cited as the Retail Shop Leases Regulation 2006 .

2Commencement

This regulation commences on 3 April 2006.

3Prescribed particulars for lessor’s disclosure statement

The prescribed particulars for a disclosure statement given by a lessor of a retail shop under section 22 or 22C (1) of the Act are the following—

(a)the names of the lessor and lessee;

(b)the address of the leased shop;

(c)the term of the lease;

(d)the date or estimated date the lease starts;

(e)the date the lessee is entitled to occupy the leased shop, if different to the date or estimated date the lease starts;

(f)details of any option to renew the lease, including—

(i)the date by which the lessee must exercise the option; and

(ii)the option period;

(g)the following details about the rent—

(i)the starting annual base rent;

(ii)the method of payment;

(iii)any rent free period;

(iv)for any rent adjustment, the method for calculation and when it is calculated;

(h)if turnover rent is payable, the method for calculating the turnover rent;

(i)if turnover rent is not payable, whether or not the lessee is required to give information to the lessor about turnover of the lessee’s business;

(j)details of any payments to be made by the lessee under the lease for the lessor’s outgoings, including the date the payments commence;

(k)details of the lessee’s liability to pay costs arising under the lease, including—

(i)promotion amounts; and

(ii)amounts under section 48 (2) of the Act;

(l)the core trading hours for the leased shop;

(m)identification of any provision in the lease about—

(i)demolishing the leased shop, leased building or the retail shopping centre in which the leased shop is or is to be situated; or

(ii)relocating the lessee’s business to different premises;

(n)the lessee’s permitted use of the leased shop and whether or not the use is exclusive to the lessee;

(o)if the leased shop is, or is to be, situated in a retail shopping centre, each of the following details—

(i)the name and address of the centre;

(ii)the number of retail shops in the centre when the disclosure statement is given;

(iii)the centre’s lettable area or estimated lettable area;

(iv)whether or not the lessor gives any assurance to the lessee about the nature of other businesses operating in the retail shopping centre;

(p)the leased shop’s area or estimated area;

(q)whether or not a survey of the leased shop’s area will be undertaken;

(r)details of any available parking bays, including the number of bays reserved for the lessee’s use;

(s)details of any services or facilities to be provided by the lessor for the benefit of the leased shop;

(t)details of any structures, fixtures, plant or equipment to be provided by the lessor;

(u)details of any works to be carried out by the lessor before the lease starts;

(v)an estimate of any contribution to be made by the lessee to the cost of the lessor’s works;

(w)details of any fit out works to be carried out by the lessee;

(x)any contribution to be made by the lessor to the cost of the lessee’s fit out;

(y)any requirements the lessee must comply with relating to the quality or standard of the shopfront or fit out;

(z)any alteration works the lessor knows are to be carried out by or for the lessor to any of the following—

(i)the leased shop;

(ii)the leased building;

(iii)the retail shopping centre in which the leased shop is or is to be situated;

(iv)the roads surrounding the leased shop, leased building or the retail shopping centre;

(za)the lessee’s entitlement, if any, to access the leased shop outside core trading hours, including any cost payable by the lessee;

(zb)details of any current legal proceeding in relation to the lawful use of the leased shop, leased building or the retail shopping centre in which the leased shop is or is to be situated.

s 3 sub 2010 SL No. 230 s 4

4Prescribed particulars for prospective lessee’s disclosure statement

The prescribed particulars for a disclosure statement given by a prospective lessee of a retail shop under section 22A of the Act are the following—

(a)the names of the lessor and prospective lessee;

(b)the prospective lessee’s address;

(c)if the prospective lessee is a corporation—sufficient information to identify the corporation;

(d)the number of retail business premises leased by the prospective lessee when the disclosure statement is given;

(e)sufficient details of the prospective lessee’s experience in retail business to demonstrate the lessee’s ability to meet the financial and other obligations of the lease;

(f)details of anything known to the prospective lessee that may affect the prospective lessee’s ability to meet the financial and other obligations of the lease;

(g)details of statements or representations made by or for the lessor during the lease negotiations and being relied on by the prospective lessee;

(h)a declaration that no other promises, representations, warranties or undertakings have been made by or for the lessor to the prospective lessee about the premises or the business to be carried on in the premises;

(i)confirmation that, under section 22 of the Act, the lessor has given the prospective lessee a draft of the lease and a disclosure statement.

5Prescribed particulars for assignor’s disclosure statement

The prescribed particulars for a disclosure statement given by an assignor of a retail shop lease under section 22B (1) of the Act are the following—

(a)the names of the assignor and prospective assignee;

(b)the address and description of the leased shop;

(c)the area of the leased shop;

(d)the date the lease ends;

(e)details of any options to renew the lease and the next date for exercising an option;

(f)details of rent, outgoings, promotion amounts and other charges payable to the lessor under the lease;

(g)the basis for a rent review under the lease and the date for the next review;

(h)if the assignment involves the prospective assignee continuing the business carried on by the assignor—details of the sales figures and trading performance of the business for—

(i)the last 5 years; or

(ii)if the assignor has carried on the business for a period of less than 5 years—the period;

(i)details of any outstanding notices from—

(i)the lessor under the lease; or

(ii)any government entity in relation to the retail shop;

(j)details of any encumbrance on—

(i)the lease; or

(ii)any of the shop’s fixtures or fittings;

(k)details of the ownership of any of the shop’s fixtures or fittings not owned by the assignor;

(l)details of any rent concessions or other benefits applicable to the balance of the term of the lease;

(m)whether the lease contains a provision releasing the assignor from liability under the lease on its assignment;

(n)a declaration that the assignor has given the assignee—

(i)a copy of the disclosure statement given by the lessor to the assignor before the assignor entered into the lease; and

(ii)details of any changes in the information contained in the statement that have happened since the statement was given.

6Prescribed particulars for prospective assignee’s disclosure statement

The prescribed particulars for a disclosure statement given by a prospective assignee under section 22B (2) or 22C (3) of the Act are the following—

(a)the names of the assignor and prospective assignee;

(b)the prospective assignee’s address;

(c)if the prospective assignee is a corporation—sufficient information to identify the corporation;

(d)the number of retail business premises leased by the prospective assignee when the disclosure statement is given;

(e)sufficient details of the prospective assignee’s experience in retail business to demonstrate the assignee’s ability to meet the financial and other obligations of the lease;

(f)details of anything known to the prospective assignee that may affect the prospective assignee’s ability to meet the financial and other obligations of the lease;

(g)details of statements or representations made by the assignor during lease negotiations and being relied on by the prospective assignee;

(h)a declaration that no other promises, representations, warranties or undertakings have been made by the assignor to the prospective assignee about the premises or the business to be carried on in the premises;

(i)confirmation that, under section 22B (1) of the Act, the assignor has given the prospective assignee a disclosure statement;

(j)if, under section 22C (3) of the Act, the prospective assignee is giving the statement to the lessor—

(i)the name of the lessor; and

(ii)details of statements or representations made by or for the lessor during lease negotiations and being relied on by the prospective assignee; and

(iii)a declaration that no other promises, representations, warranties or undertakings have been made by or for the lessor to the prospective assignee about the premises or the business to be carried on in the premises; and

(iv)confirmation that, under section 22C (1) of the Act, the lessor has given the prospective assignee a disclosure statement and a copy of the lease.

7Prescribed particulars for financial advice report

The prescribed particulars for a financial advice report given by a prospective lessee or prospective assignee under section 22D of the Act are the following—

(a)the name of the qualified accountant signing the report;

(b)the name of the prospective lessee or prospective assignee;

(c)the name of the lessor;

(d)the address of the retail shop;

(e)a statement that the accountant has given advice about the prospective lessee or prospective assignee’s financial rights and obligations under the lease including—

(i)the rent, outgoings and other payments; and

(ii)the potential financial impact of the rent review; and

(iii)the fact that the operation of the business is restricted by the term of the lease;

(f)a statement that the accountant has advised the prospective lessee or prospective assignee to obtain further professional advice including advice about the following—

(i)the volume of sales required to meet all costs of carrying on the business including capital costs, loan repayments and salary for the business operator;

(ii)appropriate accounting and financial reporting systems;

(iii)cash flow forecasting;

(iv)sales budget forecasting;

(v)taxation requirements;

(g)a declaration by the accountant about any relationship, whether professional or personal, that the accountant has with the lessor;

(h)a statement by the prospective lessee or prospective assignee about receiving and understanding the advice mentioned in the report.

8Prescribed particulars for legal advice report

The prescribed particulars for a legal advice report given by a prospective lessee or prospective assignee under section 22D of the Act are the following—

(a)the name of the lawyer signing the report;

(b)the name of the prospective lessee or prospective assignee;

(c)the name of the lessor;

(d)the address of the retail shop;

(e)a statement that the lawyer has given advice about the following matters in relation to the lease—

(i)the rent, outgoings and other payments and how they are calculated;

(ii)the rent review;

(iii)the liability to contribute to outgoings;

(iv)the term of the lease;

(v)any special or unusual terms or conditions of the lease;

(vi)whether a repayable bond or guarantee is required under the lease;

(vii)whether the lease contains an option to renew;

(viii)if the lease does not contain an option to renew—any rights the lessee or assignee may have to extend the lease;

(ix)the obligations on all parties at the end of the lease;

(x)any terms or conditions of the lease that allow the proposed lessee or proposed assignee’s business to be relocated to other premises;

(xi)the uses permitted for the retail shop premises under the lease;

(xii)the lessee’s right, under section 45 of the Act or the lease, to deal with the lease and assets of the business intended to be carried on in the retail shop;

(xiii)the consequences of a breach of a term or condition of the lease;

(f)a statement that the lawyer has advised the prospective lessee or prospective assignee to obtain further professional advice including advice about the following—

(i)town planning matters, including the licences or permits required to carry on the business intended in the retail shop;

(ii)building laws, including the appropriate classification under the Building Act 1975 to carry on the business intended in the retail shop;

(iii)the statutory approvals required to carry on a retail business of the type intended;

(iv)financial advice about the operation of the retail business intended to be carried on;

(g)a statement that the lawyer is not providing advice about, or making comment on, the following—

(i)the financial viability of the business intended to be carried on;

(ii)the ability of the prospective lessee or prospective assignee to meet the financial commitments under the lease;

(iii)accounting requirements or taxation implications of entering into the lease;

(h)a declaration by the lawyer about any relationship, whether professional or personal, that the lawyer has with the lessor;

(i)a statement by the prospective lessee or prospective assignee about receiving and understanding the advice mentioned in the report.

9Retail business

(1)A business is a retail business if—

(a)it is a business mentioned in the schedule; or

(b)its whole or predominant activity is, or is a combination of, the sale, hire or supply of goods or services mentioned in the schedule.

(2)The wholesale sale of goods is not a retail business.

10Prescribed types of premises

For the Act, definition retail shop lease, paragraph (g), premises with a floor area of more than 10,000m² are prescribed.

11Fee for lodging dispute notice—Act, s 55(2)

The fee for lodging a dispute notice is $315.70.

s 11 amd 2008 SL No. 266 s 3 sch; 2009 SL No. 181 s 3 sch; 2009 SL No. 240 s 8; 2010 SL No. 155 s 3 sch; 2011 SL No. 115 s 3 sch; 2012 SL No. 102 s 3 sch; 2013 SL No. 122 s 3 sch; 2014 SL No. 128 s 3 sch; 2015 SL No. 53 s 100; 2016 SL No. 85 s 98

12Repeal

The Retail Shop Leases Regulation 1994 is repealed.

section 9 (1)