Untitled document
Retail Leases (Amendment) Act 2005
Act No. 82/2005
table of provisions
Section Page
Part 1—Preliminary
1.Purposes
2.Commencement
3.Principal Act
Part 2—Amendment of Retail Leases Act 2003
4.Definitions
5.Meaning of "retail premises"
6.Minister may make determinations
7.New section 7 substituted
7.When retail premises lease is entered into or assigned
8.Meaning of "renewal" of a lease
9.Application if lease term of less than a year
10.Copy of lease to be provided at negotiation stage
11.Landlord's disclosure statement
12.Minimum 5 year term
13.Tenant to be given copy of lease
14.Key-money and goodwill payments prohibited
15.Security deposits
16.Small Business Commissioner to be notified of lease
17.Landlord's disclosure on renewal of lease
18.Obligation to notify tenant of option to renew
19.Rent reviews generally
20.Rent reviews based on current market rent
21.Confidentiality of information supplied to valuer
22.Capital costs not recoverable
23.Limitation on recovery of management fees
24.Recovery of land tax
25.Landlord's liability for repairs
26.Relocation of the tenant's business
27.Demolition
28.When the landlord can withhold consent to an assignment
29.Procedure for obtaining consent to assignment
30.Protection of assignors and guarantors
31.Notice of the landlord's intentions concerning renewal
32.Unconscionable conduct of a landlord
33.Unconscionable conduct of a tenant
34.Meaning of "retail tenancy dispute"
35.Functions of Small Business Commissioner
36.Referral of retail tenancy disputes for alternative dispute resolution
37.New section 94A inserted
94A.Section 146 of the Property Law Act 1958 applies to retail premises leases
38.New section 97A inserted
97A.Validation of certain instruments
39.Definitions
40.Rent
41.Notice of the landlord's intention concerning renewal
42.Options to renew
43.Landlord's liability for repairs
44.Notification of amount of land tax
Part 3—Amendment of Retail Tenancies Reform Act 1998
45.Definitions
46.Retail premises lease
47.Disclosure on renewal of lease
48.Disclosure to assignees
Part 4—Amendment of Retail Tenancies Act 1986
49.Definitions
50.New section 14AA inserted into the Retail Tenancies
Act 198614AA.Notice of the landlord's intentions concerning renewal
Part 5—Amendment of Property Law Act 1958
51.Amendment to section 146 of the Property Law Act 1958
Part 6—Repeal of Small Business Victoria
(Repeal) Act 1996
52.Repeal of Small Business Victoria (Repeal) Act 1996
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Endnotes
Retail Leases (Amendment) Act 2005
[Assented to 22 November 2005]
The Parliament of Victoria enacts as follows:
Part 1—Preliminary
1.Purposes
The main purposes of this Act are—
(a)to make miscellaneous amendments to the Retail Leases Act 2003, the Retail Tenancies Reform Act 1998 and the Retail Tenancies Act 1986;
(b)to amend section 146 of the Property Law Act 1958 in relation to a breach of a lease amounting to repudiation;
(c)to repeal the Small Business Victoria (Repeal) Act 1996.
2.Commencement
(1)Sections 1, 3, 12(7), 16, 17, 23, 37, 51 and 52 and this section come into operation on the day after the day on which this Act receives the Royal Assent.
(2)Part 4 is deemed to have come into operation at the last moment of 30 June 1998.
(3)Section 45(2) is deemed to have come into operation on 1 July 1998.
(4)Sections 39, 40, 41, 42 and 43 are deemed to have come into operation on 15 April 2003.
(5)Part 3 (other than section 45(2)) is deemed to have come into operation at the last moment of 30 April 2003.
(6)The remaining provisions of this Act are deemed to have come into operation on 1 May 2003.
3.Principal Act
In this Act, the Retail Leases Act 2003 is called the Principal Act.
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Part 2—Amendment of Retail Leases Act 2003
4.Definitions
In section 3 of the Principal Act insert the following definition—
' "accounting period", in relation to a retail premises lease, means the period of 12 months specified in the lease as the accounting period for the purposes of the lease;'.
5.Meaning of "retail premises"
(1)In section 4(1) of the Principal Act, for "or a part of premises" substitute "not including any area intended for use as a residence".
(2)In section 4(1) of the Principal Act omit "or part".
(3)For section 4(2)(d)(i) of the Principal Act substitute—
"(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".
(4)In section 4(2)(f) of the Principal Act, for "applies." substitute "applies;".
(5)After section 4(2)(f) of the Principal Act insert—
"(g)premises the tenant of which is a kind of tenant that the Minister determines under section 5 is a tenant to which this paragraph applies;
(h)premises the lease relating to which is a kind of lease that the Minister determines under section 5 is a lease to which this paragraph applies.".
(6)For section 4(3)(b) of the Principal Act substitute—
"(b)the outgoings, as estimated by the landlord, to which the tenant is liable to contribute under the lease; and
Note:Section 46 requires the landlord to give the tenant a written estimate of the outgoings to which the tenant is liable to contribute.".
6.Minister may make determinations
(1)In section 5(1)(c) of the Principal Act, for "applies." substitute "applies; or".
(2)After section 5(1)(c) of the Principal Act insert—
"(d)determine that a kind of tenant is a tenant to which section 4(2)(g) applies; or
(e)determine that a kind of lease is a lease to which section 4(2)(h) applies.".
(3)After section 5(1) of the Principal Act insert—
"(1A)An instrument made under sub-section (1) may leave any matter to be certified by a Minister.
(1B)An instrument made under sub-section (1) may provide that it has effect on and from 1 May 2003 or such later date (whether before, on or after the date on which the instrument is made) as is specified in the instrument as the date on which it comes into effect.".
7.New section 7 substituted
For section 7 of the Principal Act substitute—
"7.When retail premises lease is entered into or assigned
For the purposes of this Act, a retail premises lease is entered into or assigned when—
(a)under the lease or assignment, the tenant enters into possession of the premises with the consent of the landlord; or
(b)under the lease or assignment, the tenant begins to pay rent for the premises; or
(c)the lease or assignment has been signed by all of the parties to it—
whichever first occurs.".
8.Meaning of "renewal" of a lease
In section 9(1)(b) of the Principal Act, after "lease" (where first occurring) insert "on substantially the same terms and conditions, except as to rent,".
9.Application if lease term of less than a year
In section 12(2) of the Principal Act—
(a)after "under the lease" insert "after the commencement of this section";
(b)after "one year" (where thirdly occurring) insert "after that commencement".
10.Copy of lease to be provided at negotiation stage
At the end of section 15 of the Principal Act insert—
"(2)Sub-section (1) does not apply to a renewal of a lease.".
11.Landlord's disclosure statement
(1)After section 17(1) of the Principal Act insert—
"(1A)In the application of sub-section (1) to a sub-lease, a tenant who has been given a disclosure statement concerning a head-lease is only required to give a sub-tenant—
(a)a copy of that disclosure statement; and
(b)details of any changes of which the tenant is aware, or could reasonably be expected to be aware, that have affected the information in the disclosure statement since it was given to the tenant.".
(2)In section 17(4) of the Principal Act, for "that date" substitute "the date on which the premises are available for handover".
(3)In section 17(6)(b) of the Principal Act, after "copy of the" insert "proposed".
(4)After section 17(6) of the Principal Act insert—
"(7)If a tenant has been given the disclosure statement before entering into an agreement for a retail premises lease, the landlord is not required to give a further disclosure statement before subsequently entering into a retail premises lease if that lease is substantially in accordance with the earlier agreement for the lease.".
12.Minimum 5 year term
(1)In the note at the foot of section 21(1) of the Principal Act, after "term" insert "if, for example, there has been default, relocation, demolition or damage to the retail premises".
(2)After section 21(2) of the Principal Act insert—
"(2A)In applying sub-section (1) to a retail premises lease to which this Act applies because of section 12(2), account must be taken of any period during which the tenant was continuously entitled to possession of the retail premises before the day on which this Act first applied to the lease.
Note:Section 8 provides that an assignment of a retail premises lease is taken to be a continuation of that lease.".
(3)In section 21(5)(a) of the Principal Act, for "tenant's request" substitute "request of the tenant or prospective tenant".
(4)In section 21(5)(a)(ii) of the Principal Act for "of a notice" substitute "to the landlord of a copy of the certificate".
(5)In section 21(5)(b) of the Principal Act for "written notice waiving the application of this section to the lease" substitute "copy of the certificate".
(6)In section 21(5) and (6) of the Principal Act, after "tenant" (wherever occurring) insert
"or prospective tenant".
(7)After section 21(5) of the Principal Act insert—
"(5A)The Small Business Commissioner—
(a)must consider a request under sub-section (5) made by a tenant or a prospective tenant before a lease is entered into and within 90 days after a lease is entered into; and
(b)may consider a request made at any other time under sub-section (5).".
(8)After section 21(6) of the Principal Act insert—
"(7)If the term of a lease is extended under this section and no provision is made in the lease for a review of the rent payable in respect of the extended period, then the lease is taken to provide for a rent review to be made on the basis of the current market rent of the premises as at the beginning of that period.
Note:For reviews based on the current market rent of the retail premises, see section 37.".
13.Tenant to be given copy of lease
(1)In section 22(1) of the Principal Act, after "28 days" insert ", or such other period as is agreed in writing between the landlord and the tenant,".
(2)In section 22(2)(a) of the Principal Act, after "lease" insert "signed by the landlord and the tenant".
14.Key-money and goodwill payments prohibited
For section 23(4)(b) of the Principal Act substitute—
"(b)otherwise recovered by the tenant from the landlord as determined under Part 10 (Dispute Resolution).".
15.Security deposits
(1)In section 24(1)(c) of the Principal Act, for "lease." substitute "lease; and".
(2)After section 24(1)(c) of the Principal Act insert—
"(d)if the tenant performs all of the tenant's obligations under the lease the landlord must return the security deposit to the tenant as soon as practicable after the lease ends.".
(3)Section 24(2) of the Principal Act is repealed.
16.Small Business Commissioner to be notified of lease
(1)In section 25 of the Principal Act, after "parties to it," insert "or renewed,".
(2)After section 25(c) of the Principal Act insert—
"(ca)the date when the lease was signed by all of the parties to it, or renewed; and".
17.Landlord's disclosure on renewal of lease
(1)In section 26(1) of the Principal Act, for "at least 14 days" substitute "no later than 14 days".
(2)For section 26(3) of the Principal Act substitute—
"(3)If the tenant has not been given the disclosure statement before the expiration of the relevant period specified in sub-section (1), the tenant may, no later than 90 days after the expiration of the relevant period, give the landlord a written notice that the tenant has not been given the disclosure statement.".
18.Obligation to notify tenant of option to renew
In section 28(2)(c) of the Principal Act, for "at any time before the landlord notifies the tenant as required, the tenant" substitute "the tenant, whether or not the landlord has by then notified the tenant as required,".
19.Rent reviews generally
(1)In the note at the foot of section 35(2) of the Principal Act, for "section 36" substitute "section 37".
(2)In section 35(7) of the Principal Act, after "sub‑section (2)" insert "or is void under sub-section (6)".
20.Rent reviews based on current market rent
For section 37(7) of the Principal Act substitute—
"(7)The specialist retail valuer—
(a)must carry out the valuation within 45 days after accepting the appointment, or within such longer period as may be agreed between the landlord and tenant, or if there is no agreement, as determined in writing by the Small Business Commissioner; and
(b)may seek to enforce under Part 10 (Dispute Resolution) an obligation of the landlord under sub-section (4).".
21.Confidentiality of information supplied to valuer
In section 38(1) of the Principal Act, for "section 36" substitute "section 37".
22.Capital costs not recoverable
(1)In section 41 of the Principal Act, for "A provision" substitute "Subject to sub-section (2), a provision".
(2)At the end of section 41 of the Principal Act insert—
"(2)Sub-section (1) does not operate to render void a provision in a retail premises lease requiring the tenant to undertake capital works at the tenant's own cost.".
23.Limitation on recovery of management fees
(1)For section 49(1)(a) of the Principal Act substitute—
"(a)the management fees relate to the management of the building in which the retail premises are located or, if the retail premises are located in a retail shopping centre, that centre; and".
(2)After section 49(5) of the Principal Act insert—
"(6)For the purposes of sub-sections (2) and (3) only, the amount for management fees does not include salaries and other administrative costs related to the operation of the building in which the retail premises are located or, if the retail premises are located in a retail shopping centre, in that centre.".
24.Recovery of land tax
(1)In section 50 of the Principal Act, after "landlord" insert "or head landlord".
(2)At the end of section 50 of the Principal Act insert—
"(2)Sub-section (1) does not apply, in the case of a lease entered into at any time on or after 1 May 2003 and before 1 July 2003, in respect of any period before 1 July 2003.".
25.Landlord's liability for repairs
(1)In section 52(2) of the Principal Act, for "good repair" substitute "a condition consistent with the condition of the premises when the retail premises lease was entered into".
(2)In section 52(2) of the Principal Act—
(a)for "structure of, or fixtures" substitute "structure of, and fixtures";
(b)for "plant or equipment" substitute "plant and equipment";
(c)for "fittings or fixtures" substitute "fittings and fixtures".
(3)In section 52(3) of the Principal Act omit "in good repair".
(4)In section 52(4) of the Principal Act, after "responsible" insert "under this section or under the terms and conditions of the lease".
(5)In section 52(5)(b) of the Principal Act, after "repairs" insert "and may not recover that cost or any part of it as an outgoing".
(6)At the foot of section 52(5) of the Principal Act insert—
"Note:Section 39 regulates the ability of the landlord to recover outgoings (including the cost of repairs). Section 41 provides that capital costs are not recoverable from a tenant.".
26.Relocation of the tenant's business
In section 55(3) of the Principal Act, for "alternative comparable" substitute "reasonably comparable alternative".
27.Demolition
In section 56(4) of the Principal Act, after "sub‑section (2)," insert "or by the tenant in accordance with sub-section (3),".
28.When the landlord can withhold consent to an assignment
In section 60(1)(d) of the Principal Act, before "the proposed" (where first occurring) insert
"the assignment is in connection with a lease of retail premises that will continue to be used for the carrying on of an ongoing business and".29.Procedure for obtaining consent to assignment
(1)Section 61(4) of the Principal Act is repealed.
(2)After section 61(5) of the Principal Act insert—
"(5A)If the assignment is in connection with the lease of retail premises that will continue to be used for the carrying on of an ongoing business, the tenant must give the landlord and the proposed assignee a disclosure statement in the form prescribed by the regulations (but the layout of the statement need not be the same as the prescribed disclosure statement).".
30.Protection of assignors and guarantors
In section 62(2) of the Principal Act, after "liable to" insert "perform any obligations under the lease or to".
31.Notice of the landlord's intentions concerning renewal
In section 64(5) of the Principal Act, for "at any time before the landlord gives the tenant a notice" substitute "whether or not the landlord has given the tenant a notice as required".
32.Unconscionable conduct of a landlord
(1)In section 77(1) of the Principal Act—
(a)after "retail premises lease" insert "or a proposed retail premises lease";
(b)after "the lease" insert "or proposed lease".
(2)In section 77(2)(d)(ii) of the Principal Act, for "5 years" substitute "the minimum period provided by section 21".
33.Unconscionable conduct of a tenant
In section 78(1) of the Principal Act—
(a)after "retail premises lease" insert "or a proposed retail premises lease";
(b)after "the lease" insert "or proposed lease".
34.Meaning of "retail tenancy dispute"
In section 81(2) of the Principal Act, for "section 34 or 37" substitute "section 34, 35 or 37 of this Act or under section 12A or 13A of the Retail Tenancies Reform Act 1998 or section 10 or 11A of the Retail Tenancies Act 1986".
35.Functions of Small Business Commissioner
(1)In section 84(1)(g) of the Principal Act omit "for the purposes only of the Commissioner performing his or her functions under this Act,".
(2)After section 84(1) of the Principal Act insert—
"(1A)The Small Business Commissioner may use a register created and maintained under sub-section (1)(g) for the purposes only of the performance by the Commissioner of his or her functions under this or any other Act.".
36.Referral of retail tenancy disputes for alternative dispute resolution
After section 86(2) of the Principal Act insert—
"(2A)The Small Business Commissioner may join any person that he or she considers it appropriate to join as a party to the mediation.".
37.New section 94A inserted
After section 94 of the Principal Act insert—
"94A.Section 146 of the Property Law Act 1958 applies to retail premises leases
To avoid doubt, section 146 of the Property Law Act 1958 applies to a retail premises lease.
Note:Section 146 of the Property Law Act 1958 provides that a lessor must give a lessee notice before exercising a right of re-entry or forfeiture.".
38.New section 97A inserted
After section 97 of the Principal Act insert—
"97A.Validation of certain instruments
An instrument made under section 5(1) before the day on which the Retail Leases (Amendment) Act 2005 received the Royal Assent that would have been validly made had section 6 of that Act been in operation at the time at which the instrument was made or purportedly made has, and is deemed always to have had, the same force and effect as it would have had if section 6 of that Act had been in operation at the time at which the instrument was made or purportedly made.".
39.Definitions
(1)In section 100(1) of the Principal Act, the definition of "prospective tenant" proposed to be inserted in the Retail Tenancies Reform Act 1998 is repealed.
(2)Section 100(2) of the Principal Act is repealed.
40.Rent
(1)In section 103 of the Principal Act, for the proposed new section 12A(7) of the Retail Tenancies Reform Act 1998 substitute—
"(7)The specialist retail valuer—
(a)must carry out the valuation within 45 days after accepting the appointment, or within such longer period as may be agreed between the landlord and tenant, or if there is no agreement, as determined in writing by the Small Business Commissioner; and
(b)may seek to enforce under Part 10 of the Retail Leases Act 2003 (Dispute Resolution) an obligation of the landlord under sub-section (4).".
(2)In section 103 of the Principal Act, in the proposed new section 13(4)(k) of the Retail Tenancies Reform Act 1998, for "Public Lotteries Act 2000" substitute "Gambling Regulation Act 2003".
(3)In section 113 of the Principal Act, in the proposed new section 11(4)(k) of the Retail Tenancies Act 1986, for "Public Lotteries Act 2000" substitute "Gambling Regulation Act 2003".
41.Notice of the landlord's intention concerning renewal
In section 104 of the Principal Act, in the proposed new section 16(5) of the Retail Tenancies Reform Act 1998, for "at any time before the landlord gives the tenant a notice" substitute "whether or not the landlord has given the tenant a notice as required".
42.Options to renew
(1)In section 105 of the Principal Act, after the proposed new section 18(3) of the Retail Tenancies Reform Act 1998 insert—
"(3A)If a retail premises lease contains an option exercisable by the tenant to renew the lease for a further term, the only circumstances in which the option is not exercisable is if—
(a)the tenant has not remedied any default under the lease about which the landlord has given the tenant written notice; or
(b)the tenant has persistently defaulted under the lease throughout its term and the landlord has given the tenant written notice of the defaults.".
(2)In section 105 of the Principal Act, in the proposed new section 18(4)(c) of the Retail Tenancies Reform Act 1998, for "at any time before the landlord notifies the tenant as required, the tenant" substitute "the tenant, whether or not the landlord has by then notified the tenant as required,".
(3)In section 114 of the Principal Act, after the proposed new section 14(3) of the Retail Tenancies Act 1986 insert—
"(3A)If a retail premises lease contains an option exercisable by the tenant to renew the lease for a further term, the only circumstances in which the option is not exercisable is if—
(a)the tenant has not remedied any default under the lease about which the landlord has given the tenant written notice; or
(b)the tenant has persistently defaulted under the lease throughout its term and the landlord has given the tenant written notice of the defaults.".
(4)In section 114 of the Principal Act, in the proposed new section 14(4)(c) of the Retail Tenancies Act 1986, for "at any time before the landlord notifies the tenant as required, the tenant" substitute "the tenant, whether or not the landlord has by then notified the tenant as required,".
43.Landlord's liability for repairs
(1)In section 107 of the Principal Act, in the proposed new section 25(2) of the Retail Tenancies Reform Act 1998—
(a)for "good repair" substitute "a condition consistent with the condition of the premises when the retail premises lease was entered into";
(b)for "structure of, or fixtures" substitute "structure of, and fixtures";
(c)for "plant or equipment" substitute "plant and equipment";
(d)for "fittings or fixtures" substitute "fittings and fixtures".
(2)In section 107 of the Principal Act, in the proposed new section 25(3) of the Retail Tenancies Reform Act 1998 omit "in good repair".
(3)In section 107 of the Principal Act, in the proposed new section 25(4) of the Retail Tenancies Reform Act 1998, after "responsible" insert "under this section or under the terms and conditions of the lease".
(4)In section 107 of the Principal Act, in the proposed new section 25(5)(b) of the Retail Tenancies Reform Act 1998, after "repairs" insert "and may not recover that cost or any part of it as an outgoing".
(5)In section 116 of the Principal Act, in the proposed new section 17B(2) of the Retail Tenancies Act 1986—
(a)for "good repair" substitute "a condition consistent with the condition of the premises when the retail premises lease was entered into";
(b)for "structure of, or fixtures" substitute "structure of, and fixtures";
(c)for "plant or equipment" substitute "plant and equipment";
(d)for "fittings or fixtures" substitute "fittings and fixtures".
(6)In section 116 of the Principal Act, in the proposed new section 17B(3) of the Retail Tenancies Act 1986 omit "in good repair".
(7)In section 116 of the Principal Act, in the proposed new section 17B(4) of the Retail Tenancies Act 1986, after "responsible" insert "under this section or under the terms and conditions of the lease".
(8)In section 116 of the Principal Act, in the proposed new section 17B(5)(b) of the Retail Tenancies Act 1986, after "repairs" insert
"and may not recover that cost or any part of it as an outgoing".
44.Notification of amount of land tax
(1)In section 121 of the Principal Act, for "lease" (wherever occurring) substitute "retail premises lease".
(2)In section 121 of the Principal Act, after "landlord" (wherever occurring) insert "or head landlord".
(3)In section 121(3) of the Principal Act, after "section 46" insert "of this Act, section 20A of the Retail Tenancies Reform Act 1998 or section 14A of the Retail Tenancies Act 1986".
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Part 3—Amendment of Retail Tenancies Reform Act 1998
45.Definitions
(1)In section 3(1) of the Retail Tenancies Reform Act 1998, insert the following definition—
' "accounting period", in relation to a retail premises lease, means the period of 12 months specified in the lease as the accounting period for the purposes of the lease;'.
(2)In section 3(1) of the Retail Tenancies Reform Act 1998, insert the following definition—
' "prospective tenant", in relation to a lease entered into under an option provided under a retail premises lease to which the Retail Tenancies Act 1986 applied (a 1986 lease), includes a tenant under the 1986 lease;'.
46.Retail premises lease
After section 8(13) of the Retail Tenancies Reform Act 1998 insert—
"(14)Sub-section (2) ceases to apply on 1 May 2006.
(15)Unless sub-section (16) applies, a tenant to whom sub-section (2) applied immediately before 1 May 2006 will be liable on and after 1 May 2006 for any rent attributable to the period referred to in sub-section (2)(b).
(16)Nothing in sub-section (14) or (15) affects any right of a tenant under sub-section (2) if the tenant before 1 May 2006—
(a)withheld payment of the rent in accordance with sub-section (2)(a); or
(b)commenced proceedings to recover the rent for which the tenant was not liable under sub-section (2)(b); or
(c)commenced a retail tenancy dispute under Part 10 of the Retail Leases Act 2003 in respect of that right.
(17)The amendments made to this section by section 46 of the Retail Leases (Amendment) Act 2005 only have effect from 1 May 2006.".
47.Disclosure on renewal of lease
After section 17(3) of the Retail Tenancies Reform Act 1998 insert—
"(4)Sub-section (2) ceases to apply on 1 May 2006.
(5)Unless sub-section (6) applies, a tenant to whom sub-section (2) applied immediately before 1 May 2006 will be liable on and after 1 May 2006 for any rent attributable to the period referred to in sub-section (2)(b).
(6)Nothing in sub-section (4) or (5) affects any right of a tenant under sub-section (2) if the tenant before 1 May 2006—
(a)withheld payment of the rent in accordance with sub-section (2)(a); or
(b)commenced proceedings to recover the rent for which the tenant was not liable under sub-section (2)(b); or
(c)commenced a retail tenancy dispute under Part 10 of the Retail Leases Act 2003 in respect of that right.
(7)The amendments made to this section by section 47 of the Retail Leases (Amendment) Act 2005 only have effect from 1 May 2006.
Note:This section only applies to leases renewed before the commencement of the Retail Leases Act 2003: see section 11 of the Retail Leases Act 2003.".
48.Disclosure to assignees
For section 23(4) of the Retail Tenancies Reform Act 1998 substitute—
'(4)If the assignee of the retail premises lease has not been given a disclosure statement before the assignment, the assignee may give the landlord no later than 90 days after the lease is assigned, a written notice that the assignee has not been given the disclosure statement.
(5)If an assignee gives the landlord a notice in accordance with sub-section (4), the assignee may withhold payment of the rent until the landlord gives the tenant referred to in sub-section (1) a copy of the disclosure statement, and the assignee is not liable to pay rent attributable to the period during which the landlord has not given the tenant a copy of the disclosure statement.
(6)Sub-sections (4) and (5) do not to apply in respect of the assignment of a retail premises lease before the effective date.
(7)Unless sub-section (8) applies an assignee of a retail premises lease assigned before the effective date will be liable on and after that date for any rent attributable to the period during which the landlord had not given the tenant referred to in sub-section (1) a copy of the disclosure statement.
(8)Nothing in sub-section (6) or (7) affects any right of an assignee under sub-section (4) (as in force before the commencement of section 48 of the Retail Leases (Amendment) Act 2005) if the assignee before the effective date—
(a)withheld payment of the rent in accordance with sub-section (4); or
(b)commenced proceedings to recover the rent for which the assignee was not liable under sub-section (4); or
(c)commenced a retail tenancy dispute under Part 10 of the Retail Leases Act 2003 in respect of that right.
(9)In this section "effective date" means the day after the day that the Retail Leases (Amendment) Act 2005 receives Royal Assent.
(10)The amendments made to this section by section 48 of the Retail Leases (Amendment) Act 2005 only have effect from the effective date.'.
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Part 4—Amendment of Retail Tenancies Act 1986
49.Definitions
In section 3(1) of the Retail Tenancies Act 1986 insert the following definition—
' "accounting period", in relation to a retail premises lease, means the period of 12 months specified in the lease as the accounting period for the purposes of the lease;'.
50.New section 14AA inserted into the Retail Tenancies Act 1986
After section 14 of the Retail Tenancies Act 1986 insert—
"14AA.Notice of the landlord's intentions concerning renewal
(1)This section applies if the tenant under a retail premises lease does not have an option under the lease to renew the lease for a further term.
(2)The landlord must, at least 6 months but no more than 12 months before the lease term ends, give written notice to the tenant—
(a)offering the tenant a renewal of the lease on the terms specified in the notice (including a term setting out the rent); or
(b)informing the tenant that the landlord does not propose to offer the tenant a renewal of the lease.
(3)An offer to renew the lease cannot be revoked without the tenant's consent for 60 days after it is made.
(4)If the landlord fails to comply with sub-section (2)—
(a)the landlord must give the tenant a notice containing the same information as the notice the landlord was required to give under sub-section (2); and
(b)the lease continues (on the same terms and conditions as applied immediately before the lease term ends) until—
(i)the day specified in the notice that the landlord is required to give under paragraph (a) (which must be at least 6 months after the notice is given to the tenant); or
(ii)if the tenant gives the landlord a notice under sub-section (5), the day specified in that notice.
(5)If the landlord fails to comply with sub-section (2), the tenant may, whether or not the landlord has given the tenant a notice as required under sub-section (4)(a), give written notice to the landlord terminating the lease from a day that is not earlier than the day on which the term of the lease expires.
(6)This section only has effect from 1 July 2006.".
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Part 5—Amendment of Property Law Act 1958
51.Amendment to section 146 of the Property Law Act 1958
In section 146 of the Property Law Act 1958—
(a)in sub-section (1), after "stipulation in a lease" insert "or otherwise arising by operation of law";
(b)in sub-section (1), after "condition in the lease" insert ", including a breach amounting to repudiation,";
(c)after sub-section (1) insert—
"(1A)A notice served under sub-section (1) in respect of a breach amounting to repudiation—
(a)does not constitute, and must not be taken to constitute, an affirmation of the lease by the lessor; and
(b)does not affect any right that the lessor may have by reason of the repudiation.";
(d)in sub-section (3), after "condition" insert
", including any breach amounting to repudiation,";(e)in sub-section (4), for "or for non-payment of rent," substitute "or otherwise arising by operation of law, or for non-payment of rent, or for any breach amounting to repudiation which the lessor has accepted as such,";
(f)in sub-section (6), after "accrues" insert
"or in respect of which any breach amounting to repudiation occurs";(g)in sub-section (7), after "covenant" insert
", including a breach amounting to repudiation,";(h)in sub-section (12), after "rent" insert "whether or not such a breach amounts to repudiation";
(i)in sub-section (13), after "contrary" insert "but sub-sections (3) and (4) are to be read subject to the provisions of Part 10 of the Retail Leases Act 2003".
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Part 6—Repeal of Small Business Victoria (Repeal) Act 1996
52.Repeal of Small Business Victoria (Repeal) Act 1996
The Small Business Victoria (Repeal) Act 1996 is repealed.
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Endnotes
Minister's second reading speech—
Legislative Assembly: 6 October 2005
Legislative Council: 27 October 2005
The long title for the Bill for this Act was "to amend the Retail Leases Act 2003, the Retail Tenancies Reform Act 1998, the Retail Tenancies Act 1986 and the Property Law Act 1958 and to repeal the Small Business Victoria (Repeal) Act 1996 and for other purposes."
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