Retail and Commercial Leases Regulations 1995 (SA)
South Australia
Retail and Commercial Leases Regulations 1995
under the Retail and Commercial Leases Act 1995
Contents
1 Short title
3 Preliminary
4 Exclusions from application of Act
5 Disclosure statement
6 Minimum 5 year term
7 Warranty of fitness for purpose
7A Certified exclusionary clause
7B Exclusions from Part 4A Division 3 of Act
8 Land tax—Exclusion
9 Notice of request—Current market rent
9A Assignor's disclosure statement
10 Trading hours—Prescribed procedure
11 Advisory Committee
12 Abandoned goods
13Issues associated with Landlord and Tenant Act
Schedule 1—Disclosure statement
Schedule 2—Model certificate for exclusionary clause
Schedule 3—Exclusion of warranty of fitness for purpose
Schedule 4—Model form for notice of request
Schedule 4A—Assignor's disclosure statement
Schedule 5—Notice by lessor of storage of goods
Legislative history
1—Short title
These regulations may be cited as the Retail and Commercial Leases Regulations 1995.
3—Preliminary
In these regulations—
the Act means the Retail and Commercial Leases Act 1995;
domestic partner means a person who is a domestic partner within the meaning of the Family Relationships Act 1975, whether declared as such under that Act or not;
spouse—a person is the spouse of another if they are legally married.
A model form prescribed by these regulations is provided in order to assist in the operation of the Act and is not binding in a particular case.
4—Exclusions from application of Act
Pursuant to section 4(3) of the Act, the following are excluded from the application of the Act:
(a)the agreement dated 29 November 1988 between the Treasurer of South Australia and the Port Dock Railway Museum (South Australia) Incorporated appointing Port Dock Railway Museum (South Australia) Incorporated as the operator of Port Dock Railway Museum;
(b)any retail shop lease to which the Aboriginal Lands Trust is a party as lessor;
(c)any retail shop lease to which Distribution Lessor Corporation, Generation Lessor Corporation or ETSA Transmission Corporation is a party as lessor.
Pursuant to section 4(3) of the Act, any retail shop lease between—
(a)the occupier of a hotel owned or partially owned by—
(i)The South Australian Brewing Company Limited; or
(ii)S.A. Brewing Holdings Limited; or
(iii)S.A.B. Properties Limited; or
(iv)a wholly owned subsidiary company of any of those companies,
as lessee; and
(b)the owners of the hotel, as lessor,
is excluded from the application of sections 12, 13, 19, 20, 31, 32 and 33 of the Act.
Pursuant to section 4(3) of the Act, any retail shop lease where the premises to which the lease relates comprise licensed premises within the meaning of the Liquor Licensing Act 1997 is excluded from the application of sections 18, 43, 44, 45, 45A and 46 of the Act.
Pursuant to section 4(3) of the Act, any retail shop lease where the hours during which the premises to which the lease relates are open for business are fixed by or under the Liquor Licensing Act 1997 is excluded from the application of section 61 of the Act.
Pursuant to section 4(3) of the Act, any retail shop lease—
(a)to which Adelaide Airport Limited (ACN 075 176 653) is a party as lessor; and
(b)that is a lease of premises that comprise the whole or any part of the terminal area of Adelaide Airport,
is excluded from the application of sections 41 and 61 of the Act.
In this regulation—
terminal area has the same meaning as in the Airports (Control of On-Airport Activities) Regulations 1997 of the Commonwealth.
5—Disclosure statement
For the purposes of section 12(3a) of the Act, a disclosure statement must be presented in the form set out in Schedule 1.
6—Minimum 5 year term
Pursuant to section 20B(3)(f) of the Act, that section does not apply in the following additional cases:
(a)if the lessor is a body corporate and the lessee (or lessees) have a controlling interest in the body corporate; or
(b)if the lessor and the lessee are both bodies corporate and the same person (or persons) have a controlling interest in both bodies corporate; or
(c)if the lessee is the lessor's spouse, domestic partner, parent, grandparent, step-parent, child, grandchild, step-child, brother or sister, or the spouse or domestic partner of the lessor's child, grandchild, step-child, brother or sister; or
(d)if—
(a)the lessor is—
(i)an incorporated association within the meaning of the Associations Incorporation Act 1985; or
(ii)a body established on a non-profit basis for a purpose of a kind referred to in section 18(1) of that Act; and
(b)the right of occupation granted under the lease is for less than an average of 15 hours in each week over the term of the lease.
7—Warranty of fitness for purpose
For the purposes of section 18(2) of the Act, the warranty referred to in section 18(1) of the Act is excluded if the lessor specifically draws to the attention of the lessee, at the time that a disclosure statement is given to the lessee under section 12 of the Act, a notice in the form of Schedule 3.
The notice referred to in subregulation (1)—
(a)must be inserted in the disclosure statement immediately after that part of the statement that relates to other agreements or representations that may have been made in relation to the retail shop lease (ie., if the form in the Schedule of the Act is used for the disclosure statement, at the end of that form); and
(b)must be printed in bold type.
7A—Certified exclusionary clause
For the purposes of section 20K(3) of the Act, the form set out in Schedule 2 is prescribed as a model form that a lawyer may use when providing a certificate for a certified exclusionary clause.
7B—Exclusions from Part 4A Division 3 of Act
Pursuant to section 20C(2)(d) of the Act, a lease is excluded from the ambit of Part 4A Division 3 of the Act if it is a lease of the whole or any part of premises known at the commencement of these regulations by the following descriptions:
(a)heritage levels 1, 3, 4, 5, 7, 8 and 9 of Shell House, 170 North Terrace, Adelaide;
(b)heritage levels 1, 3, 4, 5 and 7 of Goldsbrough House, 172 North Terrace, Adelaide;
(c)levels 7 to 12 (inclusive) of Terrace Towers, 178 North Terrace, Adelaide;
(d)Elizabeth House, Elizabeth City Centre, Elizabeth;
(e)Sidney Chambers, Elizabeth City Centre, Elizabeth;
(f)Raleigh Chambers, Elizabeth City Centre, Elizabeth;
(g)Windsor Building, Elizabeth City Centre, Elizabeth;
(h)levels 2 to 10 (inclusive) of Citi Centre Building, 145 Rundle Mall, Adelaide;
(i)first floor of North Adelaide Village, corner Archer and O'Connell Streets, North Adelaide;
(j)first floor of Southern Cross Arcade, 52–62 King William Street, Adelaide;
(k)levels 1 to 10 (inclusive) of AON House, 63 Pirie Street, Adelaide;
(l)levels 1 to 14 (inclusive) of Wyatt House, 115 Grenfell Street, Adelaide.
8—Land tax—Exclusion
For the purposes of subsection (3) of section 30 of the Act, 15 November 1990 is fixed for the purposes of that section.
9—Notice of request—Current market rent
For the purposes of subsection (1)(b) of section 36 of the Act, the form set out in Schedule 4 is prescribed as a model form that a lessee may use when making a request under that section.
9A—Assignor's disclosure statement
For the purposes of section 45A of the Act, an assignor's disclosure statement must be presented in the form set out in Schedule 4A.
10—Trading hours—Prescribed procedure
For the purposes of subsection (1)(c) of section 61 of the Act, a ballot under that subsection must be conducted as follows:
(a)the proposed core trading hours must be incorporated into a resolution to be put at a meeting of the persons who are entitled to vote on the matter (see section 61(2) of the Act);
(b)the lessor and each lessee of a retail shop affected by the proposal must receive at least seven days notice of the meeting;
(c)the notice must be in writing and must—
(i)state the time and place at which the meeting will be held; and
(ii)set out the text of the resolution that is to be put to the meeting;
(d)a person who is entitled to vote at the meeting may, by written instrument, appoint another person to act as his or her proxy at the meeting;
(e)the person or persons who are proposing the resolution must make up, and provide at the meeting, ballot papers for the purposes of the ballot;
(f)the ballot papers must set out the text of the resolution and clearly indicate a place where a person who is voting may vote for, or against, the resolution;
(g)the persons present at the relevant meeting must appoint one of their number to preside at the meeting and to conduct the ballot;
(h)the person presiding at the meeting—
(i)may require that the ballot papers be altered or replaced before the ballot is conducted if he or she is dissatisfied with the form or content of the ballot papers, or otherwise considers that it is appropriate to take action under this provision; and
(ii)may decide any other question relevant to the conduct of the ballot;
(i)each person who casts a vote in the ballot is entitled to scrutinise the counting of votes.
Notes—
1The core trading hours must not exceed 65 hours a week.
2Core trading hours must be approved by a majority of at least 75% of the votes cast at the ballot.
3Voting must be by secret ballot.
4In the ballot, the lessor is entitled to one vote and the lessee of each retail shop affected by the proposal is entitled to one vote in respect of that shop.
11—Advisory Committee
For the purposes of section 73(2) of the Act, the Retail Shop Leases Advisory Committee will be constituted by the Minister after consultation with—
(a)the Building Owners and Managers Association of Australia Ltd (South Australia); and
(b)the Retail Traders Association of SA Inc; and
(c)the Small Retailers Association of South Australia; and
(d)the Newsagents Association of South Australia Ltd; and
(e)Australian Small Business Association Ltd; and
(f)Westfield Shopping Centre Management Co. (SA) Pty Ltd; and
(g)the Commissioner.
The Committee must meet at least twice a year.
12—Abandoned goods
For the purposes of section 76(3) of the Act, the notice set out in Schedule 5 is prescribed.
13—Issues associated with Landlord and Tenant Act
For the purposes of section 81(2)(a) of the Act, the following modifications to the Landlord and Tenant Act 1936 (the former legislation) are prescribed:
(a)a reference to the Commercial Tribunal (including through the use of the definition the Tribunal) is to be construed as a reference to the Civil (Consumer and Business) Division of the Magistrates Court;
(b)section 56 of the former legislation will be taken to have been replaced by the following provision:
56—Substantial monetary claims
(1)An action involving a claim arising under or in respect of a commercial tenancy agreement to which this Part applies or a related guarantee should be commenced before the Magistrates Court.
(2)An action before the Magistrates Court that involves a monetary claim for $10 000 or less will be taken to be a minor statutory proceeding under the Magistrates Court Act 1991.
(3)If an action before the Magistrates Court involves a monetary claim for an amount exceeding $30 000, the Magistrates Court must on the application of a party to the proceeding refer the proceeding to the District Court.
(4)If a proceeding is referred to the District Court, the Court has, in addition to the powers that it has apart from this section, the powers that the Magistrates Court has under this Part.
(5)In this section—
Magistrates Court means the Civil (Consumer and Business) Division of the Magistrates Court.;
(c)sections 59, 60, 61 and 65 of the former legislation will be taken to have been repealed;
(d)the following sections will be taken to be inserted after section 72 of the former legislation:
72A—Unlawful threats
A landlord or an agent of a landlord must not make threats to the effect that the landlord will not renew or extend the term of tenancy if the tenant exercises a right under this Act.
Penalty: Division 5 fine.
72B—Vexatious acts
A party to a commercial tenancy agreement must not, in connection with the exercise of a right or power under this Act or the agreement, engage in conduct that is, in all the circumstances, vexatious.
Penalty: Division 6 fine.
Pursuant to section 81(3) of the Act, the following provisions of the Act apply to a retail shop lease entered into before the commencement of the Act:
(a)section 12 (Lessee to be given disclosure statement);
(b)section 13 (Lessee not required to pay undisclosed contributions);
(c)section 19 (Security bond);
(d)section 20 (Repayment of security);
(da)section 31(2) (Estimates and explanations of outgoings to be provided by lessor);
(e)section 52 (Statistical information to be made available to lessee);
(f)section 61 (Trading hours);
(g)Division 1 Part 9 (Mediation).
(3)Subregulations (1) and (2) do not affect any determination of core trading hours under the former legislation before the commencement of the Act and such a determination will have effect for the purposes of section 61 of the Act.
Schedule 1—Disclosure statement
(Regulation 5)
Schedule 2—Model certificate for exclusionary clause
(Regulation 7A)
Schedule 3—Exclusion of warranty of fitness for purpose
Schedule 4—Model form for notice of request
(Regulation 9)
Schedule 4A—Assignor's disclosure statement
(Regulation 9A)
Schedule 5—Notice by lessor of storage of goods
Legislative history
Notes
•Please note—References in the legislation to other legislation or instruments or to titles of bodies or offices are not automatically updated as part of the program for the revision and publication of legislation and therefore may be obsolete.
•Earlier versions of these regulations (historical versions) are listed at the end of the legislative history.
•For further information relating to the Act and subordinate legislation made under the Act see the Index of South Australian Statutes or Shop Leases Regulations 1995
Revocation of regulations
The Retail and Commercial Leases Regulations 1995 were revoked by Sch 2 cl 1 of the Retail and Commercial Leases Regulations 2010 on 1.9.2010.
Principal regulations and variations
Year No Reference Commencement 1995 134 Gazette 29.6.1995 p3101 30.6.1995: r 2 1996 213 Gazette 12.9.1996 p1147 16.9.1996: r 2 1997 198 Gazette 4.9.1997 p630 6.10.1997: r 2 1997 245 Gazette 18.12.1997 p1711 18.12.1997: r 2 1999 250 Gazette 2.12.1999 p3085 2.12.1999: r 2 2002 5 Gazette 15.1.2002 p205 4.2.2002: r 2 2003 147 Gazette 12.6.2003 p2500 12.6.2003: r 2 2004 3 Gazette 15.1.2004 p211 15.5.2004: r 2 2005 226 Gazette 20.10.2005 p3789 20.10.2005: r 2 2007 51 Gazette 26.4.2007 p1410 1.6.2007: r 2 Provisions varied
Entries that relate to provisions that have been deleted appear in italics.
Provision How varied Commencement r 1 substituted by 245/1997 r 3 18.12.1997 r 2 omitted under the Legislation Revision and Publication Act 2002 15.5.2004 r 3 r 3(1) varied by 5/2002 r 3 4.2.2002 domestic partner inserted by 51/2007 r 29 1.6.2007 spouse inserted by 51/2007 r 29 1.6.2007 r 4 r 4(1) varied by 250/1999 r 3 2.12.1999 r 4(3) varied by 5/2002 r 4(a), (b) 4.2.2002 r 4(4) varied by 5/2002 r 4(c) 4.2.2002 r 4(5) and (6) inserted by 226/2005 r 4 20.10.2005 r 5 substituted by 198/1997 r 3 6.10.1997 r 6 r 6(1) deleted by 198/1997 r 4(a) 6.10.1997 r 6(2) varied by 198/1997 r 4(b) 6.10.1997 varied by 3/2004 r 4 15.5.2004 varied by 51/2007 r 30(1), (2) 1.6.2007 r 7A inserted by 198/1997 r 5 6.10.1997 r 7B inserted by 245/1997 r 4 18.12.1997 r 9A inserted by 5/2002 r 5 4.2.2002 r 13 r 13(2) varied by 213/1996 r 3 16.9.1996 varied by 198/1997 r 6 6.10.1997 Sch 1 substituted by 198/1997 r 7 6.10.1997 varied by 5/2002 r 6 4.2.2002 Sch 2 substituted by 198/1997 r 7 6.10.1997 varied by 5/2002 r 7 4.2.2002 Sch 3 heading substituted by 147/2003 Sch 1 12.6.2003 varied by 5/2002 r 8 4.2.2002 Sch 4 heading substituted by 147/2003 Sch 1 12.6.2003 varied by 5/2002 r 9 4.2.2002 Sch 4A inserted by 5/2002 r 10 (Sch) 4.2.2002 Sch 5 heading substituted by 147/2003 Sch 1 12.6.2003 varied by 5/2002 r 11 4.2.2002 Historical versions
15.5.2004 20.10.2005
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