South Australian Bills South Australian Bills[Index] [Search] [Download] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Retail and Commercial Leases (Miscellaneous) Amendment
Bill 2017
A BILL FOR
An Act to amend the
Retail
and Commercial Leases Act 1995
and to make related amendments to the
Landlord
and Tenant Act 1936
.
Contents
Part 2—Amendment of Retail and
Commercial Leases Act 1995
4Amendment of section
3—Interpretation
5Amendment of section 4—Application of
Act
6AValuer-General to
review prescribed threshold
7Amendment of section 9—Commissioner's
functions
11Copy of lease to
be provided to prospective lessee
9Amendment of section 12—Lessee to be
given disclosure statement
10Amendment of section 14—Lease
preparation costs
11Amendment of section 15—Premium
prohibited
13Amendment of section 19—Security
bond
14Amendment of section 20—Repayment of
security
16Amendment of section 20B—Minimum 5 year
term
17Amendment of section 20K—Certified
exclusionary clause
18Amendment of section 20L—Premium for
renewal or extension prohibited
19Amendment of section 20M—Unlawful
threats
20Amendment of section 24—Turnover
rent
21Amendment of section 44—Premium on
assignment prohibited
22Amendment of section 51—Confidentiality
of turnover information
23Amendment of section 75—Vexatious
acts
24Amendment of section
77—Exemptions
Part 3—Amendment of Landlord and
Tenant Act 1936
13AJurisdiction of
the Magistrates Court
27Amendment of section 24—Adverse
claims
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Retail and Commercial Leases
(Miscellaneous) Amendment Act 2017.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Retail and Commercial Leases
Act 1995
4—Amendment
of section 3—Interpretation
(1) Section 3(1)—after the definition of Fund
insert:
GST means the tax payable under the GST law;
GST law means—
(a)
A
New Tax System (Goods and Services Tax) Act 1999
of the Commonwealth; and
(b) the related legislation of the Commonwealth dealing with the
imposition of a tax on the supply of goods and services;
(2) Section 3(1)—after the definition of premium
insert:
public company has the same meaning as in section 9 of the
Corporations
Act 2001
of the Commonwealth;
(3) Section 3—after subsection (1) insert:
(1a) For the purposes of this Act—
prescribed threshold, in relation to rent payable under a
retail shop lease, means—
(a) the amount of $400 000 per annum exclusive of GST; or
(b) if a greater amount is prescribed by the regulations for the purposes
of this definition and the Act—the amount so prescribed.
5—Amendment
of section 4—Application of Act
(1) Section 4(2)—delete "if"
(2) Section 4(2)(a)—delete paragraph (a) and substitute:
(a) after the commencement of this paragraph—during any period in
respect of which the amount of rent payable under the lease exceeds the
prescribed threshold (regardless of whether the Act applies, or does not apply,
to the lease at the time the lease is entered into, or renewed because of the
amount of rent payable under the lease); or
(3) Section 4(2)(ab)—before "the lease" insert:
if
(4) Section 4(2)(b)—before "the right" insert:
if
(5) Section 4(2)(c)—before "the lessee" insert:
if
(6) Section 4(2)—after paragraph (c) insert:
or
(d) if—
(i) the lessor is—
(A) the Crown or an agency or instrumentality of the Crown in right of the
State; or
(B) a municipal or district council or other authority with powers and
functions of local government; and
(ii) the lessee is of a class specified by the regulations for the
purposes of this paragraph.
(7) Section 4—after subsection (3)—insert:
(4) For the avoidance
of doubt, after the commencement of this subsection, this Act may apply, or
cease to apply, to a particular retail shop lease (whether entered into before
or after the commencement of this subsection) from time to time depending on
whether—
(a) the prescribed threshold under the Act is increased; or
(b) the amount of rent payable under the lease is decreased or increased
(including, for example, as a result of a review of rent under the
lease).
Examples—
(1) The Act may, after an increase in the prescribed threshold, apply to a
retail shop lease to which the Act did not apply at the time the lease was
entered into, or renewed, because the rent payable under the lease no longer
exceeds the prescribed threshold.
(2) The Act may, after an increase in the rent payable under the lease,
cease to apply to a retail shop lease to which it applied immediately before the
increase in rent because the rent payable under the lease now exceeds the
prescribed threshold.
(3) The Act may, after a decrease in the rent payable under the lease,
apply to a retail shop lease to which the Act did not apply immediately before
the decrease in rent because the rent payable under the lease no longer exceeds
the prescribed threshold.
After section 6—insert:
6A—Valuer-General to review prescribed
threshold
(1) The Valuer-General must, within the last year of each prescribed
period and in accordance with the regulations, conduct a review of the
prescribed threshold for the purposes of this Act.
(2) On completing a review, the Valuer-General must forward to the
Minister, a report on the review and the conclusions reached by the
Valuer-General as to whether or not, as a result of the review, the
Valuer-General recommends that, for the purposes of this Act, the prescribed
threshold, in relation to rent payable under a retail shop lease, should be
increased.
(3) The regulations may make provision with respect to the conduct of a
review by the Valuer-General including (without limitation), by specifying
requirements (if any) in relation to—
(a) matters to be taken into account by the Valuer-General; and
(b) consultation to be undertaken by the Valuer-General.
(4) In this section—
prescribed period means—
(a) the period ending on 30 October next following the second anniversary
of the commencement of this section; and
(b) each successive period of 5 years thereafter.
7—Amendment
of section 9—Commissioner's functions
Section 9—after paragraph (f) insert:
and
(g) any other functions assigned to the Commissioner by or under this
Act.
Section 11—delete the section and substitute:
11—Copy of lease to be provided to prospective
lessee
(1) A person who, as a
lessor, or acting on behalf of a lessor—
(a) offers to enter into a retail shop lease; or
(b) invites an offer to enter into a retail shop lease; or
(c) indicates by advertisement by any means that a retail shop is for
lease,
must, as soon as the person enters into negotiations with a prospective
lessee (and before a retail shop lease is entered into), provide the prospective
lessee with a written copy of the proposed retail shop lease (but not
necessarily including the particulars of the lessee, the rent or the term of the
lease).
Maximum penalty: $8 000.
(2) At the time a copy
of the proposed retail shop lease is provided to the prospective lessee under
subsection (1)
, the lessor, or a person acting on behalf of a lessor, must also provide
the prospective lessee with a copy of the information brochure (if any) about
retail leases published by the Commissioner.
Maximum penalty: $800.
Expiation fee: $120.
(3) This section does not apply to or in respect of the renewal of a
retail shop lease.
9—Amendment
of section 12—Lessee to be given disclosure statement
(1) Section 12(1)—delete subsection (1) and substitute:
(1) A lessor, or the
lessor's agent, must, before a retail shop lease is entered into, give the
lessee a disclosure statement for the lease in duplicate signed by or on behalf
of the lessor in accordance with the requirements set out in
subsection (4).
Maximum penalty: $8 000.
(1a) A disclosure statement for a retail shop lease is not required to be
given in respect of a renewal of a retail shop lease.
(2) Section 12(4)—delete subsection (4) and substitute:
(4) A disclosure statement provided under subsection (1) must be served in
duplicate on the lessee—
(a) by personal service on the lessee or the lessee's agent; or
(b) by leaving it for the lessee at—
(i) the lessee's usual or last known place of residence or business;
or
(ii) in the case of a lessee that is a company, the company's registered
office,
with someone apparently over the age of 16 years; or
(c) by serving it by registered post on the lessee or the lessee's agent
at the lessee's or agent's address provided by the lessee or agent for the
purpose; or
(d) by transmitting it by fax or email to a fax number or email address
provided by the lessee or lessee's agent for the purpose (in which case the
disclosure statement will be taken to have been served at the time of
transmission); or
(e) in any other manner prescribed by the regulations.
(4a) Service by post is effected by addressing, prepaying and posting the
disclosure statement, and service will be taken to have occurred when the
disclosure statement would be delivered in the ordinary course of
post.
(4b) A lessee or lessee's agent must, within 14 days of being served with
the disclosure statement, return 1 copy of the disclosure statement signed by or
on behalf of the lessee to the lessor or the lessor's agent (with the remaining
copy to be signed by or on behalf of the lessee and retained by the lessee or
lessee's agent).
10—Amendment
of section 14—Lease preparation costs
(1) Section 14(1)—delete ", stamping"
(2) Section 14(2)(a)—delete "the stamp duty payable on the lease
and"
11—Amendment
of section 15—Premium prohibited
Section 15(2)(a)—delete "$10 000" and substitute:
$15 000
Section 16—delete section 16 and substitute:
16—Lease documentation
A retail shop lease is taken to include provision to the following
effect:
(a) if the lease is not to be registered—the lessor must provide the
lessee with an executed copy of the lease within 1 month after the lease is
returned to the lessor or the lessor's lawyer or agent following its execution
by the lessee;
(b) if the lease is to be registered—the lessor must lodge the lease
for registration within 1 month after the lease is returned to the lessor or the
lessor's lawyer or agent following its execution by the lessee, and the lessor
must provide the lessee with an executed copy of the registered lease within
1 month after the lease is returned to the lessor or the lessor's lawyer or
agent following registration of the lease.
13—Amendment
of section 19—Security bond
(1) Section 19(1)(b)—delete "four weeks' rent" and
substitute:
4 weeks' rent (exclusive of GST)
(2) Section 19(1), penalty provision—delete "$1 000" and
substitute:
$1 500
(3) Section 19(1), paragraph following the penalty provision—after
"weekly rent" insert:
, exclusive of GST
(4) Section 19(2)—delete "four weeks' rent" and
substitute:
4 weeks' rent (exclusive of GST)
(5) Section 19(5), penalty provision—delete "$1 000" and
substitute:
$1 500
14—Amendment
of section 20—Repayment of security
(1) Section 20(4)—delete "seven" and substitute:
14
(2) Section 20(5)—delete "seven" and substitute:
14
After section 20—insert:
20AA—Return of bank guarantees
(1) A lessor who receives a bank guarantee for a lease must return the
original bank guarantee to the lessee within 2 months (the maximum return
period) after the lessee completes performance of the obligations under
the lease for which the bank guarantee is provided as security.
Maximum penalty: $8 000.
(2) A lessor is not required to return a bank guarantee if it has expired
or been cancelled.
(3) The maximum return period does not run for any period during which the
matter of the lessor's entitlement to claim or realise the bank guarantee is the
subject of proceedings pending in a court.
(4) A lessor who is unable to return an original bank guarantee is able to
satisfy the requirement under this section, or an order of a court to return the
bank guarantee, by providing any consent or release necessary to have the bank
guarantee cancelled.
(5) A lessor is liable to pay to the lessee compensation
for—
(a) any loss or damage suffered by the lessee as a result of any failure
by the lessor to return a bank guarantee in compliance with this section, or an
order of a court; and
(b) reasonable costs incurred by the lessee in connection with the
cancellation of a bank guarantee because the lessor was unable to return the
original bank guarantee in compliance with this section, or an order of a
court.
(6) This section applies to a bank guarantee whether given in respect of a
lease entered into or renewed before or after the commencement of this
section.
(7) In this section—
bank guarantee means a guarantee from an ADI in satisfaction
of any requirement to provide a security bond or other bond or third party
guarantee for the performance of the lessee's obligations under the
lease.
16—Amendment
of section 20B—Minimum 5 year term
Section 20B(3)(b)—delete "with the consent of the lessor and the
period of holding over does not exceed 6 months"
17—Amendment
of section 20K—Certified exclusionary clause
Section 20K(3)—delete subsection (3) and substitute:
(3) A certified exclusionary clause is a provision of a
retail shop lease in respect of which a certificate signed by the Commissioner,
or a lawyer who is not acting for the lessor, is endorsed on the lease to the
effect that—
(a) the Commissioner or lawyer (as the case may be) has, at the request of
the prospective lessee, explained the effect of the provision and how this Part
would apply in relation to the lease if the lease did not include that
provision; and
(b) the prospective lessee gave the Commissioner or lawyer (as the case
may be) apparently credible assurances that the prospective lessee was not
acting under coercion or undue influence in requesting or consenting to the
inclusion of the provision in the lease.
(4) The Commissioner may require payment of a fee prescribed by the
regulations for the provision of a certificate under this section.
18—Amendment
of section 20L—Premium for renewal or extension
prohibited
Section 20L(2)(a)—delete "$10 000" and substitute:
$15 000
19—Amendment
of section 20M—Unlawful threats
Section 20M, penalty provision—delete "$10 000" and
substitute:
$15 000
20—Amendment
of section 24—Turnover rent
Section 24(5), penalty provision—delete "$1 000" and
substitute:
$1 500
21—Amendment
of section 44—Premium on assignment prohibited
Section 44(2)(a)—delete "$10 000" and substitute:
$15 000
22—Amendment
of section 51—Confidentiality of turnover information
Section 51, penalty provision—delete "$10 000" and
substitute:
$15 000
23—Amendment
of section 75—Vexatious acts
Section 75, penalty provision—delete "$5 000" and
substitute:
$8 000
24—Amendment
of section 77—Exemptions
(1) Section 77(2)—after "Magistrates Court" insert:
or the Commissioner
(2) Section 77(4), penalty provision—delete "$500" and
substitute:
$800
Section 80—delete the section and substitute:
80—Regulations
(1) The Governor
may make such regulations as are contemplated by this Act or as are necessary or
expedient for the purposes of this Act.
(2) Without
limiting the generality of
subsection (1)
, the regulations may—
(a) be of general or limited application; and
(b) confer powers or impose duties in connection with the regulations on
the Minister or the Commissioner; and
(c) prescribe codes of practice to be complied with by lessors and
lessees; and
(d) fix fees in respect of any matter under this Act and provide for their
payment, recovery or waiver; and
(e) exempt a specified person or class of persons, or a specified
transaction or class of transactions, from compliance with this Act or a
specified provision of this Act, either absolutely or on conditions or subject
to limitations; and
(f) make provision of a
saving or transitional nature consequent on the commencement of specified
provisions of this Act or specified regulations under this Act; and
(g) make different provision according to the classes of persons, or the
matters or circumstances, to which they are expressed to apply; and
(h) incorporate, adopt, apply or make prescriptions by reference to, with
or without modifications, any document formulated or published by any body or
authority as in force at a particular time or from time to time; and
(i) impose penalties not exceeding $2 000 for contravention of a
regulation.
(3) If a document formulated or published by any body or authority as in
force at a particular time or from time to time is incorporated, adopted,
applied or referred to in the regulations—
(a) a copy of the document must be kept available for public inspection,
without charge and during ordinary office hours, at an office or offices
specified in the regulations; and
(b) evidence of the contents of the document may be given in any legal
proceedings by production of a document apparently certified by the Minister to
be a true copy of the document.
Part 3—Amendment
of Landlord and Tenant
Act 1936
After section 13 insert:
13A—Jurisdiction of the Magistrates
Court
(1) The Magistrates
Court has jurisdiction to hear and determine any application or other proceeding
under this Part.
(2) If a proceeding before the Magistrates Court involves a monetary
claim, or property with a value, that exceeds the amount by reference to which
the jurisdictional limit of the Magistrates Court is fixed, the Magistrates
Court must on the application of a party to the proceeding refer the proceeding
to the District Court.
(3) 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.
27—Amendment
of section 24—Adverse claims
Section 24(2)—delete subsection (2) and substitute:
(2) The Magistrates Court, on hearing a claim under subsection (1), may
make such orders, including orders as to costs, as the Court thinks
fit.