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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Retail and Commercial Leases (Miscellaneous) Amendment
Bill 2019
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
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 23—Reviews to
current market rent
21Amendment of section 24—Turnover
rent
22Amendment of section 32—Lessor to
provide auditor's report on outgoings
23Amendment of section 35—Determination of
current market rent under options to renew
24Amendment of section 44—Premium on
assignment prohibited
25Amendment of section 51—Confidentiality
of turnover information
27Amendment of section 75—Vexatious
acts
28Amendment of section
77—Exemptions
Part 3—Amendment of Landlord and
Tenant Act 1936
13AJurisdiction of
the Magistrates Court
31Amendment 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 2019.
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(1)—after the definition of statutory rights of
security of tenure insert:
subsidiary includes a subsidiary within the meaning of
section 9 of the
Corporations
Act 2001
of the Commonwealth.
(4) 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.
Section 4—delete the section and substitute:
4—Application of Act
(1) This Act applies to a retail shop lease if the premises to which the
lease applies consist of a retail shop or a retail shop together with an
adjacent dwelling.
(2) However, this
Act does not apply to a retail shop lease—
(a) on or after the
relevant day (whether the lease was entered into before or after that day),
subject to
subsection (3)
, 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
(b) if the lease is for a term of 1 month or less; or
(c) if the right of occupation arises under—
(i) an agreement for the sale and purchase of premises; or
(ii) a mortgage; or
(iii) a scheme under which a group of adjacent premises is owned by a
company and the premises comprising the group are let by the company to persons
who jointly have a controlling interest in the company; or
(i) an ADI; or
(ii) a body corporate authorised by law to carry on the business of
insurance; or
(iii) the Crown or an agency or instrumentality of the Crown in right of
the State, another State or Territory, or the Commonwealth; or
(iv) a municipal or district council or other authority with powers and
functions of local government; or
(i) in the case of a
lease entered into on or after the relevant day—a public company, or a
subsidiary of a public company, other than a public charitable company or a
subsidiary of a public charitable company; or
(ii) in the case of a lease entered into before the relevant day or a
lease renewed after the relevant day (whether on the same or different terms)
pursuant to a right or option conferred by a lease entered into before the
relevant day—a public company, or a subsidiary of a public company
(including a public charitable company or a subsidiary of a public charitable
company); or
(f) if, in the case of
a lease entered into on or after the relevant day—the lessee is a body
corporate whose securities are listed on a stock exchange outside Australia and
the external territories or a subsidiary of such a body corporate; or
(g) if, in the case of
a lease entered into on or after the relevant day—
(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
function of local government; and
(ii) the lessee is of a class specified by the regulations for the
purposes of this paragraph.
(3) Despite
subsection (2)(a)
, this Act does not apply to—
(i) that is lodged for registration by the lessor within 3 months
after both parties have executed the lease; and
(ii) that remains registered for the term of the lease; and
(iii) under which, at the time the lease is lodged for registration, the
rent payable exceeds the prescribed threshold; or
(b) any renewal of a retail shop lease referred to in
paragraph (a)
that is lodged for registration by the lessor within 3 months after
both parties have executed the renewal and that remains registered for the term
of the renewed lease,
despite the fact that—
(c) the prescribed threshold is subsequently increased such that the rent
payable under the lease or renewed lease (as the case requires) no longer
exceeds the prescribed threshold (and the Act would otherwise apply in relation
to the lease or renewed lease by virtue of the operation of
subsection (2)(a)
); or
(d) the amount of rent payable under the lease or renewed lease (as the
case requires) is decreased (for example, as a result of a review of rent under
the lease), such that the rent payable under the lease or renewed lease no
longer exceeds the prescribed threshold (and the Act would otherwise apply in
relation to the lease by virtue of the operation of
subsection (2)(a)
).
(4)
Subsection (3)
—
(a) does not apply to, or in respect of—
(i) a retail shop lease entered into before the relevant day (regardless
of any registration of the lease on or after the relevant day); or
(ii) despite any other Act or law, the renewal of a retail shop lease on
or after the relevant day, pursuant to a right or option conferred by a retail
shop lease entered into before the relevant day (regardless of any registration
of the renewal of the lease on or after the relevant day); but
(b) may apply to, or in respect of, a new retail shop lease (whether on
the same or different terms) entered into by an existing lessee and lessor after
the relevant day.
(5) The regulations may exclude from the application of this Act (either
conditionally or unconditionally) a specified class of retail shop
leases.
(6) To avoid doubt,
this Act may, on or after the relevant day, apply, or cease to apply to a retail
shop lease of a kind referred to in
subsection (2)(d)
,
(e)
,
(f)
or
(g)
depending on whether the lessee or lessor becomes, or ceases to be, a
lessee or lessor of a kind referred to in the relevant paragraph during the term
of the lease.
(7) In this section—
public charitable company means a public company limited by
guarantee and registered under the Australian Charities and Not-for-profits
Commission Act 2012 of the Commonwealth;
relevant day means the day on which this section comes into
operation.
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 shop 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 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 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 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 a signed acknowledgement of receipt of the
disclosure statement to the lessor or the lessor'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—
(i) an executed copy of the lease; and
(ii) confirmation that the lease has been registered,
within 1 month of the date of its registration.
13—Amendment
of section 19—Security bond
(1) Section 19(1)—delete subsection (1) and
substitute:
(a) require more than one security bond for the same retail shop lease;
or
(b) require the payment
of an amount by way of security under a security bond if the total amount paid
by way of security exceeds 3 months' rent (exclusive of GST) under the
lease.
Maximum penalty: $1 500.
(1a) In connection with
subsection (1)(b)
, the maximum amount of the security bond is to be calculated by reference
to the rent payable during the first year of the lease (expressed as a monthly
rent) but if a lease provides rent concessions, such as a rent-free period or a
period of rent at concessional rates, the concession will be
disregarded.
(2) Section 19(2)—delete "four weeks' rent" and
substitute:
3 months' rent (exclusive of GST)
(3) 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 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 23—Reviews to current market rent
Section 23(1)(c)—delete "President of the Australian Institute of
Valuers and Land Economists (SA Division) Inc." and substitute:
Chair of the South Australian State Committee of the Australian Property
Institute Limited (or the holder of such other office representing property
interests in the State prescribed by the regulations)
21—Amendment
of section 24—Turnover rent
Section 24(5), penalty provision—delete "$1 000" and
substitute:
$1 500
22—Amendment
of section 32—Lessor to provide auditor's report on
outgoings
(1) Section 32(b)—delete "Corporations Law" first and second
occurring and substitute in each case:
Corporations Act 2001 of the Commonwealth
(2) Section 32(e)—after "other than" insert:
the emergency services levy,
23—Amendment
of section 35—Determination of current market rent under options to
renew
Section 35(1)(c)—delete "President of the Australian Institute
of Valuers and Land Economists (SA Division) Inc." and substitute:
Chair of the South Australian State Committee of the Australian Property
Institute Limited (or the holder of such other office representing property
interests in the State prescribed by the regulations)
24—Amendment
of section 44—Premium on assignment prohibited
Section 44(2)(a)—delete "$10 000" and substitute:
$15 000
25—Amendment
of section 51—Confidentiality of turnover information
Section 51, penalty provision—delete "$10 000" and
substitute:
$15 000
26—Amendment
of section 55—Lessor to provide auditor's report on advertising and
promotion expenditure
Section 55(c)—delete "Corporations Law" first and second
occurring and substitute in each case:
Corporations Act 2001 of the Commonwealth
27—Amendment
of section 75—Vexatious acts
Section 75, penalty provision—delete "$5 000" and
substitute:
$8 000
28—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) prescribe 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.
31—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.