Commercial Tenancy (Retail Shops) Agreements Amendment Regulations 1992 (WA)

16 February 1993] GOVERNMENT GAZETTE, WA 1269

Agreements Amendment Regulations 1992.

•

SMALL BUSINESS

SB30i

COMMERCIAL TENANCY (RETAIL SHOPS) AGREEMENTS ACT 1985

COMMERCIAL TENANCY (RETAIT, SHOPS) AGREEMENTS AllF,DMENT REGULATIONS 1992

Made by His Excellency the COVEMIGIC in Executive Council.

Citation

1. These regulations may be cited as the Commercial Tenancy (Retail Shops)

1270 GOVERNMENT GAZETTE, WA [16 February 1993

Principal regulations

Regulations 1985* are referred to as the principal regulations. 2. In these regulations the Commercial Tenancy (Retail Shops) Agreements

[* Published in the Gazette of 30 August 1985 at pp.3121-27.

For amendments to 2 December 1992 see 1991 Index to Legislation of Western Australia p.278.]

Regulation 3A inserted

3. After regulation 3 of the principal regulations the following regulation is

inserted —

it

Specified businesses prescribed under section 3 (1)

3A. Each of the following businesses is prescribed to be a "specified business" for the purpose of the definition , of that expression in section 3 (1) of the Act —

(a)	drycleaning;
(b)	hairdressing;
(c)	beauty therapy;
(d)	shoe repair;

If

(e) sale or rental of video tapes.

Schedule amended

4. (1) Form 1 of the Schedule to the principal regulations is deleted and the

following form is substituted —

FORM 1

COMMERCIAL TENANCY (RETAIL SHOPS)

AGREEMENTS ACT 1985

Section 6 (4)

[Reg 4]

DISCLOSURE STATEMENT

This Disclosure Statement is not complete unless it is accompanied by a copy of the form of the lease and a copy of the current year's itemized variable outgoings budget.

Tenant should ensure that he or she fully understands this Disclosure Statement, the form of lease, and the outgoings budget and that the Tenant has negotiated any change he or she wishes to make.

WARNING TO TENANT document the

Signing any of those documents will legally bind the tenant.

The Tenant should take independent legal and accounting advice before signing any document.

NOTE:  If there is insufficient space for full disclosure on any part of this form
please attach additional sheets.

16 February 19931 GOVERNMENT GAZETTE, WA 1271

PART A

LANDLORD'S DISCLOSURE TO PROSPECTIVE TENANT

CENTRE/BUILDING DETAILS:
Name of Centre/Building

Address of Centre/Building

Current Number of Shops
(a) Leased

(i)        occupied

(ii)      unoccupied

(b) Unleased

(i)        occupied

(ii)      unoccupied

Current Total Gross Leasable Area of Centre/Building

Current Parking Facilities

(a)	Approximate customer bays
(b)	Approximate tenant bays
(c)	Number of bays allocated

exclusively to tenant

Centre/Building Facilities

and Services provided by

the Landlord available

for the Tenant's use.	(Delete if not applicable)
Bin Rooms Common Area cleaning Common Area lighting Security Child minding centre Staff toilets Other:
NOTE:

services are suitable to his or her requirements. The Tenant should ensure that the nature of those facilities and

Outstanding. orders of Statutory or

Local Authorities affecting

the premises	YES NO
Changes physically affecting the
Centre/Building of which Statutory
or Local Authorities have notified.
the Landlord, or of which the Landlord
is aware	YES NO
Alterations to the Centre/Building
submitted to or approved by
Statutory and Local Authorities and
proposed to be commenced within
the term of the Lease or any
statutory or contractual option	YES NO
Redevelopment clause in Lease	YES NO
Total or Partial Destruction clause
in Lease	YES NO

1272 GOVERNMENT GAZETTE, WA [16 February 1993

The premises meet all current

health, safety, building and

fire regulations for the	YES NO NOT
proposed use	KNOWN
NOTE:	The Tenant should make his or her own enquiries with Statutory and Local Authorities relating to all regulations and proposed or approved alterations to the Centre/Building or the neighbourhood including changes of zonings, roads, other centres etc.

Core trading hours of	Mon	g
s.
the Centre/Building	Tues	s-
Wed	s -
Thurs	s-
Fri	s-
Sat	s '
Sun

NOTE:	Core hours may not exceed those permitted by legislation.
After hours access	s -

Mon

to the Centre/Building	Tues
and the premises at	gg

Wed

no cost to the Tenant	Thurs	z
Fri	s
Sat	z
Sun	s
Permitted use of the common areas

for trading	YES NO
If permitted, on the following basis
Current tenant mix with retail classifications (floor plan attached)
Compulsory contributory
membership of Merchants'
Association	YES NO
Date on which contributions to

Association commence

PROPOSED TENANCY DETAILS:

1. Premises

Address of premises/shop number

Gross leasable area for retail shops

(method of measurement as set out in	the lease or, if not provided in the
lease, by the relevant Building Owners and Managers Association Method of Measurement)
New premises Approximately . . . . square metres

(±5%)

Existing premises
Permitted Use of Premises Certified at. . . . square metres

16 February 19931 GOVERNMENT GAZETTE, WA 1273

2.       Term

Term of Lease years/months

From to

Options years/months

From to

years/months

From to

NOTE- Tenant expects to extend his or her lease after the expiry of its Term and options, the Tenant must make enquiries of the Landlord before entering into the Lease.

3.        Occupation

Fixtures and fittings

provided by the Landlord

to the premises at the

cost of the Landlord. (Delete if not applicable)

Air conditioning

Electrical distnbution

board

Lighting
Painted walls
Plastered walls
Shop front
Sink
Sprinklers
Suspended ceiling
Telephone
Water supply and waste
Other:

Date on which the premises will be available for occupation or fit-out.

Landlord's requirements as to

quality and standard of shop front

and fit-out apply.	YES NO
(If yes, details are attached).

Landlord's contribution to shop

front (if any)	YES NO
(If yes, details are attached).

4.       Rent

Date on which rent
payments commence

F)requency

Annual rent at commencement
Frequency of rent reviews

1274 GOVERNMENT GAZETTE, WA [16 February 1993

Formula or basis for reviews (Delete if not applicable)

Consumer Price

Index

Fixed Percentage

increase

Market value

Pre-set rent

amounts

Aggregate of

previous rents

Other:

Reduction of rent possible on review	YES	NO
Rent payable EXISTING	PROPOSED	OTHER
during a review RATE	RATE
dispute
Rent payable by
reference to

YES NO

turn-over

If yes, basis of calculation

NOTE:	If any part of the Tenant's rent is calculated on the turn-over of his or her business, the Tenant must elect in writing on the form entitled "Notice of Election that Rent be Determined by Reference to Turn-over" (Form 2) to make those payments. The Tenant should understand the
full implication of this method of rent calculation which includes a Landlord. requirement for the Tenant to disclose his or her trading figures to the
The Tenant is encouraged to seek independent legal and accounting advice.
Abatement of rent on destruction or damage YES	NO

5. Variable Outgoings (Contributions to Landlord's expenses)

Variable outgoings payable

by the Tenant YES NO

Date on which variable outgoings payments commence	Frequency
Percentage of the total variable outgoings cost apportioned to the premises
Current annual contribution of the premises to the budget attached	Approximately $
Currency of variable outgoings year	From to

NOTE:	For a list of the variable outgoings payable by the Tenant refer to the
current budget attached and to Lease Clauses and
and for the formula for apportionment of the variable outgoings refer to Lease Clauses and
NOTE:	The proportion of the total cost q.  variable outgoings for the
Centre/Building payable by the Tenant might vary periodically.

16 February 19931 GOVERNMENT _GAZETTE, WA 1275

6.        Additional Charges payable by the Tenant

(Delete if not applicable)

Costs following Tenant's default
Grease trap cleaning
Interest on outstanding money
Legal fees for Landlord and for Tenant
Pre-payment of rent or outgoings
Security and air conditioning (for
after hours operation)
Stamp duty
Wet waste removal
Other:

7.        Landlord's Interest

Landlord's interest in FREEHOLD LEASEHOLD

the Centre/Building

If leasehold, term of years remaining under Landlord's lease

Details of rights and obligations of the Landlord under that lease which affect the premises

If the Tenant is a aubleseee he or she should seek independent

NOTE:  legal advice on the security of his or her tenure.

GENERAL

List of other agreements between -

the Prospective Tenant and the Landlord

or

representations made by the Landlord

PROSPECTIVE TENANTS REQUIREMENTS DISCLOSED TO

LAN DL0R1)

You, the Tenant, have indicated to the Landlord special requirements in respect of the following: (Details are attached).

(Delete if not applicable)

Air conditioning
Air control
Cool rooms/freezers
Dedicated parking bays
Delivery access
Drainage
External equipment
Fire protection
Floor loading
Hot/cold water
Power/lighting
Security
Shop fit-out
Telephone/facsimile/radio
Wall loading

Wet/dry waste

Other:

1276 GOVERNMENT GAZETTE, WA [16 February 1993

You, the Tenant, have made representations to the Landlord which attached). are relied on by the Landlord in respect of the following: (Details are

DECLARATION BY LANDLORD AND PROSPECTIVE TENANT

We acknowledge that this Disclosure Statement contains or refers to all agreements and representations that influence us to contemplate entering into the proposed lease of the premises.

Name of Landlord:

Address of Landlord:

Signed by or on behalf of the Landlord:

Date:

Name of Prospective Tenant:
Address of Prospective Tenant:
Signed by or on behalf of the Prospective Tenant:

Date:

following form is substituted —	(2) Form 4 of the Schedule to the principal regulations is deleted and the
a

FORM 4

COMMERCIAL TENANCY (RETAIL SHOPS) AGREEMENTS ACT 1985

Section 19 (1)

[Reg 7]

REFERENCE OF A QUESTION ARISING UNDER

A RETAIL SHOP LEASE

TO- THE COMMERCIAL REGISTRAR

OF THE COMMERCIAL TRIBUNAL
OF WESTERN AUSTRALIA

The matter set out below is referred to the Commercial Registrar for mediation with a view to the Landlord/Lessor and the Tenant/Lessee

attaining a solution to their dispute that is acceptable to them.

1.	The Applicant is either	(1)* The Landlord/Lessor or (2)* The Tenant/Lessee.
*Delete whichever is not applicable.

2.       State the full name's, residential address/es and occupation/s of the Landlord/Lessor (if a natural person) or full name and address of Principal Office in Western Australia of the Landlord/Lessor (if a body corporate)

Name of contact person
Telephone No. of contact person

NOTE:  The Landlord/Lessor is usually not the managing agent. Do not insert under item 2 the name of the managing agent unless the managing agent is also the Landlord I Lessor. if you do not know who the Landlord/Lessor is, or are not sure, you should do a Title Search (is. ownership search) of the property at the Titles Office in Perth. It is your responsibility to accurately advise the name and address of the Landlord/Lessor.

16 February 19931 GOVERNMENT GAZETTE, WA 1277

3.       State the full name/s, residential address/es and occupation/s of the Tenant/Lessee (if a natural person) or full name and address of Principal Office in Western Australia of the Tenant/Lessee (if a body corporate)

Name of contact person
Telephone No. of contact person

4.       State the name and address of the retail shopping centre. retail shopping centre, otherwise state '7s,Tot Applicable") (Answer this item only if the dispute relates to a tenancy in a

5.       If the dispute relates to a tenancy in a retail shopping centre, state

Shop number (if applicable)

Lettable floor area of Tenant's shop

Lettable floor area of retail
shopping centre (if applicable)

6.       If the retail shop tenancy is not in a retail shopping centre, state:

The address of the retail shop

The area of the retail shop
(ie, the area leased)

7.       State the questions that relate to the matter(s) in dispute and which you are now referring to the Commercial Registrar together with all relevant facts and circumstances, and forward all relevant documents, including the lease any agreement for lease, letters, consents and brocfiures

(photocopies are acceptable provided they are clearly legible),	assignment of lease variations of lease, any relevant
matter material to resolving the matter(s) in dispute and, where relevant, a search of the relevant Certificate of Title	statement(s) by any tiird party who has knowledge of any

and where the tenancy is in a retail shopping centre, a plan of the retail shoppmg centre, with the location of the retail mediation should be set forth in brief, but clear language, shop coloured in. The nature of the matter(s) referred for

together withyour advice as to how you believe the matter satisfaction of both the Landlord/Lessor and the the subject of the mediation may be reasonably resolved to the

Tenant/Lessee - i.e. the results that you think will be reasonable to obtain.

*

1278 GOVERNMENT GAZETTE, WA 116 February 1993

8.       I forw .rd with this application the prescribed fee of $

(Cheques are only to be made payable to the Commercial Tribunal).

Dated	19
Applicant is a body corporate, the	Signature of Applicant (or if the
authorized by the body corporate signature of a person duly to sign this application).
*NOTE:

to the relevant item number(s) stated on this form. If there is insufficient space, continue on A4 paper and cross reference

INFORMATION FOR APPLICANT

The following definitions are extracted from the Commercial Tenancy (Retail Shops)

Agreements Act 1985.	completing your application to the Commercial Registrar — They are for your information and may assist you in
"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,
leas;	but )es not include a person who assigns his interest as tenant under the

"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;

"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;

"retail shop lease" means a lease that provides for the occupation of a retail shop

other than where —

(a)	the retail shop has a floor area that exceeds 1 GOO square metres; or
(b)	the lease is held by a corporation within the meaning of the

is held by a subsidiary of such a corporation; incorporated in Western Australia as a proprietary company, or that Companies (Western Australia) Code' that would not be eligible to be

"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; and

(b)

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

(i)	a business involving the sale of goods by retail; or
(ii)	a specified business,

but does not include premises used wholly or partly for the carrying on of a

47G of the Transport Act 19681 for use in road vehicles as so defined, other	business involving the retail sale of petroleum oroducts as defined in section
than premises used for that purpose by a tenant under a lease from a
that expression in the Petroleum Retail Mar Piing Franchise Act 1980 of the Parliament of the Commonwealth; Landlord who is not a party to a franchise agreement within the meaning of

16 February 19931 GOVERNMENT GAZETTE, WA 1279

"retail shopping centre" means a collection of premises —

(a)

five or more of which are used wholly or predominantly for the
carrying on of —

(i)	a business involving the sale of goods by retail; or
(ii)	a specified business; and

(b)

all of which have, or upon being leased would have, a common head lessor but does not include a multi-level building except in relation to each floor of the building on which is situated a collection of premises in respect of which paragraphs (a) and (b) apply;

"specified business" means a business of a kind prescribed by the regulations to be a specified business. (as at December 1992, these were drycleaning, hairdressing, beauty therapy, shoe repair, and sale or rental of video tapes)

Your attention is also drawn to section 3 (3) of the Act, relating to "a question arising under a retail shop lease". Section 3 (3) of the Act reads as follows —

3. (3) A reference in this Act to a question arising under a retail

shop lease includes a reference to a question arising —

(a)	in relation to any communication, including a disclosure statement under section 6, between the parties to the lease, prior to the lease being entered into, which was material to the terms and conditions of the lease; or
(b)	in relation to the lease under a provision of this Act.

1.         Short title (as changed by section 5 of the Acts Amendment and Repeal Reprints Act 1984. (Transport Co-ordination) Act 1985) substituted under section 7(3) (h) of the

2. In respect of matters arising after 1 January 1991, the operation of the Companies(Western Australia) Code is subject to the provisions in Division 2 of Part 13 of the Corporations (Western Australia) Act 1990.

By His Excellency's Command,

D. G. BLIGHT, Clerk of the Council.