Retail Shop Leases Act Amendment Act 1988 (Qld)

451 F"U" ET` MuN* ANNO TRICESIMO SEPTIMO ELIZABETHAE SECUNDAE REGINAE O® 3 Og 9 CC Z An Act to amend the RetailShopLeases Act1984-1985 in certain particulars [ASSENTED TO 3RD M AY, 1988]

452 Retail Shop Leases Act Amendment Act 1988, No. 43 BE IT ENACTED by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Assembly of Queensland in Parliament assembled, and by the authority of the same, as follows:- 1. Short title and citation . (1) This Act may be cited as the Retail Shop Leases Act Amendment Act 1988. (2) In this Act the Retail Shop Leases Act 1984-1985 is referred to as the Principal Act. (3) The Principal Act as amended by this Act may be cited as the Retail Shop Leases Act 1984-1988. 2. Amendment of s. 4 . Interpretation . Section 4 of the Principal Act is amended by- (a) inserting immediately before the definition "building" the following definition:- "adequate particulars" means particulars that may be said to be reasonably required by a landlord or tenant as the case may be in relation to any matter to enable him to make a commercial decision thereon;"; (b) inserting immediately after the definition "common areas" the following definition:- "determination of market rent" means determination of market rent payable under a retail shop lease, pursuant to section 10•"• (c) adding after the definition "retail shopping centre" the following definitions:- " "specialist retail valuer" means a specialist retail valuer designated pursuant to section 10B; "The Valuers Registration Board " means The Valuers Registration Board of Queensland constituted under the Valuers Registration Act 1965-1985.". 3. Amendment of heading to Part II. The Principal Act is amended by adding to the heading immediately preceding section 6 after the words "PROHIBITED CONDITIONS" the words "AND PROVISIONS". 4. New s. 6A. The Principal Act is amended by inserting after section 6 the following section:- "6A. Tenant' s right to join or form commercial associations. A landlord shall not include or cause to be included in a retail shop lease a provision whereby the tenant is prevented or restricted from- (a) joining any Chamber of Commerce or retail trade association or any other prescribed commercial association;

Retail Shop Leases Act Amendment Act 1988, No. 43 453 or (b) forming or joining a tenants' association for the purpose of promoting a retail shopping centre.". 5. Amendment of s. 8 . Certain payments to landlord prohibited. Section 8 of the Principal Act is amended by- (a) omitting from subsection (1) the words "claiming through him" and substituting the words "acting under his authority"; (b) inserting after subsection (2) the following subsection:- "(2A) The landlord under a retail shop lease of a retail shop that forms part of a retail shopping centre or any person acting under his authority shall not be entitled to any payment by the tenant, whether by way of payment into a sinking fund or otherwise, for or in respect of the amortisation of all or any of the costs and expenses of and incidental to construction of the retail shopping centre, any extension to the centre or any major improvement of a structural nature to the centre."; (c) adding at the end of subsection (3) the words "or 2A". 6. Amendment of s. 10 . Rent review. Section 10 of the Principal Act is amended by omitting subsection (2) and substituting the following subsection:- "(2) If provision is made in a retail shop lease for review of the amount of rent payable thereunder during the currency of the lease having regard to the market rent of the premises then the market rent shall be determinable- (a) by reference to the rent that would be paid for the retail shop if it was unoccupied and offered for rental for the use for which the premises are presently permitted or will be permitted under the lease; and (b) having regard to the terms of the lease, on a free and open market, and the lease shall be deemed to provide that the question of what rent should be payable thereunder must be determined by a specialist retail valuer if there be no agreement between the landlord and tenant upon that question.". 7. New ss. 10A, lOB and 10c. The Principal Act is amended by inserting immediately after section 10 the following provisions:- "10A. Provisions concerning determination by specialist retail valuer . (1) If a determination of market rent is to be made by a specialist retail valuer pursuant to section 10 and there is no agreement between the landlord and the tenant on the nomination of a specialist retail valuer for that purpose such nomination shall be made by the registrar whose nominee shall thereupon be taken to be the specialist retail valuer appointed by the

454 Retail Shop Leases Act Amendment Act 1988, No. 43 landlord and tenant for that purpose and his determination shall be binding on both parties as if he had been appointed by consent. (2) It shall not be competent to a specialist retail valuer to enter into a determination of market rent unless he is independent of the interests of the landlord and tenant concerned. (3) If a specialist retail valuer knowingly fails to comply with the provisions of subsection (2) without reasonable excuse such failure shall be deemed to be misconduct in the performance of his duties as a public valuer for the purposes of section 20 of the Valuers Registration Act 1965-1985 for which he may be dealt with by way of a charge under that section. (4) The determination of market rent by a specialist retail valuer shall be final and binding on the parties to the lease and his fees shall be borne equally by the landlord and the tenant. (5) Every determination of market rent shall be completed and notified by the specialist retail valuer to the landlord and tenant within 30 days of submission of the question to the specialist retail valuer concerned, save where The Valuers Registration Board is satisfied that a reasonable excuse exists for failure to comply with this subsection. (6) Failure by a specialist retail valuer to comply with the provisions of subsection (5) without reasonable excuse in respect of more than two such determinations of market rent shall be deemed to constitute incompetence in the performance of his duties as a public valuer for the purposes of section 20 of the Valuers Registration Act 1965-1985 for which he may be dealt with by way of a charge under that section. 10B. Designation of specialist retail valuers. (1) A specialist retail valuer for the purposes of this Act shall be an individual who is a registered valuer and who is designated as a specialist retail valuer by the The Valuers Registration Board pursuant to this section, which Board shall compile and maintain a list of specialist retail valuers that shall be in addition to and separate from the Register of Valuers of Queensland kept under section 12 of the Valuers Registration Act 1965-1985. (2) The list of specialist retail valuers shall be available for inspection at the office where the same is for the time being held, upon payment of such fee as may be determined by the Valuers Registration Board. (3) An individual who is a registered valuer under the Valuers Registration Act 1965-1985 who desires to be designated as a specialist retail valuer shall make application to The Valuers Registration Board in writing to that effect and pay the prescribed fee. If The Valuers Registration Board is satisfied that such registered valuer has sufficient experience in retail rental valuation it may approve his application and include his name on the list

Retail Shop Leases Act Amendment Act 1988, No. 43 455 of specialist retail valuers and his designation shall take effect from the date of that inclusion or may refuse his application. (4) The Valuers Registration Board may when designating a specialist retail valuer authorise him to perform retail rental valuations for the purposes of this Act for the whole of the State or may limit him to making such valuations for such geographical area or areas of the State as that Board sees fit, and the list of specialist retail valuers shall be noted accordingly. (5) The Valuers Registration Board may remove from the list of specialist retail valuers the name of any person whose name has been duly removed from the register within the meaning of the Valuers Registration Act 1965-1985 and that person shall thereupon cease to be a specialist retail valuer for the purposes of this Act. 10c. Appeal by aggrieved valuer. (1) An individual who is a registered valuer who is aggrieved by a refusal of The Valuers Registration Board of an application for designation as a specialist retail valuer may appeal against such refusal to a Judge of the District Court at Brisbane who shall have jurisdiction to hear and determine the same. (2) Every such appeal shall be by way of rehearing upon the evidence adduced before the Board and the decision of a Judge of the District Court upon such an appeal shall be final and binding on all persons concerned. (3) A person who desires to appeal against a refusal of The Valuers Registration Board referred to in subsection (1) shall- (a) within 28 days after the date of such refusal serve on the secretary to The Valuers Registration Board a notice of appeal in or to the effect of the prescribed form setting out the grounds of appeal; and (b) within 7 days of the service of such notice deposit with the Registrar of the District Court at Brisbane the sum of $200 by way of security for the costs of the appeal. (4) Upon being served with the notice of appeal under subsection (3) the secretary to The Valuers Registration Board shall forthwith send to the Registrar of the District Court at Brisbane a copy of such notice and of the evidence before The Valuers Registration Board and the resolution of the Board relevant to the matter of appeal. (5) Rules of Court may be made under the District CourtsAct 1967-1985 with respect to the institution, conduct and disposal of an appeal. Until such rules are made or in so far as such rules of court do not extend, the Judge hearing any appeal under this section may, in the particular case, give such directions as he may think fit, and the directions shall, according to their tenor, have the force and effect of rules of court made for the purposes thereof.".

456 Retail Shop Leases Act Amendment Act 1988, No. 43 8. Amendment of s. 11. Requests for assignment of lease. Section 11 of the Principal Act is amended by- (a) in subsection (1)- (i) inserting immediately after the words "an assignment of the lease" the words "and has provided the landlord with adequate particulars in relation thereto"; -30(ii) omitting the expression "42" and substituting the expression (b) inserting after subsection (1) the following subsection:- "(IA) Where a landlord, when consenting to the assignment of a retail shop lease, imposes any condition that is not part of the terms and conditions of the relevant retail shop lease and is unreasonable, that imposition shall be deemed to create a dispute under a retail shop lease for the purposes of this Act and may be referred to a mediator in accordance with the provisions of this Act.". 9. Amendment of s. 12. Sharing of operating expenses . Section 12 of the Principal Act is amended by (a) inserting after the words "in question forms a part" the words "including common areas or, where the retail shop concerned is situated in a retail shopping centre, the building or buildings which constitute the centre including common areas"; (b) in paragraph (b), inserting after the words "annual estimates" where first occurring the words "in or to the effect of the prescribed form" ; (c) in paragraph (c), inserting after the words "annual statements" the words "in or to the effect of the prescribed form". 10. Amendment of s. 13. O ption to renew lease. Section 13 of the Principal Act is amended by adding after subsection (2) the following subsection:- "(3) Where a retail shop lease (other than a periodic tenancy or a tenancy at will) is not the first such lease entered into in respect of the retail shop in question and does not provide for an option on the part of the tenant to renew the lease, the following provisions shall apply:- (a) The tenant may, not less than four months prior to the tenancy expiry date by notice in or to the effect of the prescribed form request the landlord to renew the lease for a period specified in the notice; (b) Upon receipt of that notice the landlord shall, not less than three months prior to the tenancy expiry date by notice in or to the effect of the prescribed form inform the tenant whether or not he offers the tenant the option of renewal of the lease and if he

Retail Shop Leases Act Amendment Act 1988, No. 43 457 does so offer for what period the lease is offered and the proposed terms and conditions of the proposed renewed lease; (c) If the tenant receives a notice from the landlord that complies with paragraph (b) in which the tenant is offered such an option of renewal of the lease he shall, if he desires to accept the landlord's offer, give notice in or to the effect of the prescribed form, not less than two months prior to the tenancy expiry date, of his acceptance of that offer; (d) If- (i) the tenant duly gives a notice referred to in paragraph (c); and (ii) at the time of giving the notice there exists no unremedied default on the part of the tenant and no default occurs during the balance of the existing tenancy other than a default that is waived by the landlord or in respect of which the tenant is granted relief by the court pursuant to section 124 of the Property Law Act 1974-1986, the tenant shall, except where the making of a lease for that term would be contrary to the law governing sub-leases, be granted a renewal of the existing lease upon terms and conditions consisting of those specified in the notice referred to in paragraph (b); (e) If the landlord fails to give any notice under paragraph. (b) or gives a notice that does not comply with the provisions of paragraph (b), the tenant shall be entitled at his option to occupy the premises concerned in the existing tenancy for the term of three months from the tenancy expiry date upon the same terms and conditions as those on which he holds the existing term of the lease other than the term thereof and this entitlement to a renewal; (f) For the purposes of this subsection "tenancy expiry date" means the date on which the existing tenancy concerned expires.". 11. New s. 14A. The Principal Act is amended by inserting after section 14 the following section:- . "14A. Provisions concerning trading hours . A tenant of a retail shop under a retail shop lease shall not be required pursuant to that lease to extend the hours during which he is required by the lease, immediately before the commencement of section 1 of the Trading Hours Act 1987, on 29 October 1987 to keep the retail shop open for trading, as a consequence of the enactment of any of the provisions of that Act, unless such an extension is specifically provided for in a retail shop lease entered into or

458 Retail Shop Leases Act Amendment Act 1988, No. 43 renewed on or after the date of commencement of section 1 of the Trading Hours Act 1987, and no provision of such first- mentioned lease shall be taken to be breached by reason of the tenant's refusal or failure to extend those hours by reason of that enactment.". 12. Amendment of s. 15. Implied provisions concerning compensation. Section 15 of the Principal Act is amended by- (a) in paragraph (a)- (i) inserting after the words "If the landlord" the words "or any person lawfully acting under his authority"; (ii) omitting all words from and including the words "(v) fails" to and including the words "in the centre; or" and substituting the following words:- "(v) fails to have rectified as soon as practicable any breakdown of plant or equipment under his care and maintenance or any defect in the building or buildings that constitute the centre including common areas, which breakdown or defect causes loss of profits to a tenant or tenants in the centre;"; (iii) omitting from the end of subparagraph (vi) the expression "," and substituting the expression "; " ; (iv) adding after subparagraph (vi) the following words:- "or (vii) causes a tenant to vacate a retail shop prior to the expiration of the current term of the lease for the purposes of the extension, refurbishing or demolition of the whole or part of the centre,"; (v) inserting after paragraph (a) the following paragraphs:- "(aa) If- (i) a tenant has entered into or renewed the lease as a result of a false or misleading statement or misrepresentation made by the landlord or any person claiming through him or lawfully acting under his authority; or (ii) a tenant has suffered loss of profits as a result of such a statement or misrepresentation, then the landlord may be made liable to pay reasonable compensation to the tenant affected thereby. (ab) A tenant is not entitled to compensation under the provisions of this section by reason only that the landlord has prevented him from extending , in accordance with the Trading HoursAct 1987, the hours during which the tenant keeps the retail shop open for trading.";

Retail Shop Leases Act Amendment Act 1988, No. 43 459 (vi) in paragraph (b) inserting after the words "paragraph (a)" the words "or (aa)". 13. New s. 15A. The Principal Act is amended by inserting after section 15 the following section:- "15A. Documents and information to be given to tenants. (1) At least 14 days prior to a person entering into a retail shop lease as a tenant the landlord shall provide that person with a draft of the relevant lease that the person will be required to execute in relation thereto. In addition the landlord shall provide the prospective tenant with the following information in respect of the leasing of the retail shop:- Adequate particulars of identification and location of the retail shop, approximate leaseable area, permitted use of the demised premises, lease and option periods, (in the case of a proposed centre or centre under construction) the proposed opening date, rent and rent review provisions, details of works to be performed by the landlord and works to be performed by the tenant and a schedule of construction and finishes. (2) If a landlord fails to comply wholly or partially with the provisions of subsection (1) prior to a person entering into a retail shop lease with him, the tenant may by notice in writing to the landlord terminate the lease within 14 days of- (a) the date when he receives the documents and information or when he receives the first of them; or (b) the date that is 2 months from and after the date he signed the lease, whichever date is the earlier.". 14. Amendment of s. 36 . Extent of jurisdiction . Section 36 of the Principal Act is amended by- (a) in subsection (1), adding at the end of the subsection the following words:- "or concerns- (a) the liability of any person to pay moneys; or (b) the recovery of moneys due and owing or paid by any person, in connexion with a retail shop lease"; (b) omitting subsection (3) and substituting the following subsection:- "(3) Where a retail shop lease provides or is deemed to provide that any question be submitted to arbitration it is competent to a mediator to refer a dispute involving that question

460 Retail Shop Leases Act Amendment Act 1988, No. 43 to a Tribunal so far as it involves that question unless all steps necessary to secure arbitration of the question have been taken. Where the mediator has, within his competence, referred a dispute to the Tribunal, any provision of a retail shop lease that provides for the submission of any question involved in the dispute to arbitration is null and void in relation to that dispute. This subsection applies in relation to every retail shop lease whether entered into before or after the commencement of the Retail Shop Leases Act Amendment Act 1988.". 15. Amendment of s. 60 . Protection of things done under Act. Section 60 of the Principal Act is amended by- (a) numbering the existing provisions (1); (b) adding after subsection (1) as so numbered the following subsection:- "(2) Where the jurisdiction or power of a mediator or his exercise or proposed exercise thereof is in issue in any proceedings, for the purposes of those proceedings the mediator shall be deemed to be a servant in the employment of the Crown.". 16. New s. 63. The Principal Act is amended by inserting after section 62 the following section: "63. Review of Act. (1) The Minister shall carry out a review of the operation of this Act- (a) not later than six years after the date of commencement of section 1 of the Retail Shop LeasesAct Amendment Act 1988; (b) thereafter at intervals of not more than six years following the year in which the preceding review is completed. (2) In carrying out that review the Minister shall consider and have regard to- (a) the effectiveness of the operations of this Act and of the Mediators and Tribunals; (b) the need for continuation, in the then present form of each Tribunal constituted and operating under this Act; and (c) such other matters as appear to him to be relevant to the operation and effectiveness of this Act. (3) The Minister shall prepare a report based on his review of the Act and shall, as soon as practicable after that report is prepared, cause the report to be laid before Parliament.".

Retail Shop Leases Act Amendment Act 1988, No. 43 461 17. Amendment of First Schedule . Specified Business . The First Schedule of the Principal Act is amended by- (a) omitting from the heading to the Schedule the word "BUSINESS" and substituting the word "BUSINESSES"; (b) inserting after the words "Prints°and posters shops" the words "Restaurants, cafeterias, coffee lounges and other eating places". 18. Amendment of Second Schedule. Specified Services . The Second Schedule of the Principal Act is amended by omitting the words "Restaurants, cafeterias, coffee lounges and other eating places". 19. Commencement . (1) Section 1 and this section shall commence on the day this Act is assented to for and on behalf of Her Majesty. (2) Except as provided by subsection (1), the provisions of this Act or such of those provisions as are specified in the Proclamation shall commence on a date, to be appointed by Proclamation, that is not less than 28 days from and after the day on which the Governor gives his assent thereto for and on behalf of Her Majesty.