Western Australian Current Acts Western Australian Current Acts (1) This section
applies if provision is made in a retail shop lease in respect of premises in
a retail shopping centre for payments to be made by the tenant into a sinking
fund for repairs or maintenance or any similar purpose.
(2) The purpose of the
sinking fund is to be specified in the retail shop lease.
(3) The lease shall be
taken to provide that —
(a) the
landlord is to, as soon as practicable, pay amounts paid by the tenant for the
credit of the sinking fund into one or more appropriately designated interest
bearing accounts held by the landlord with a bank in the State; and
(b) the
landlord may only apply amounts standing to the credit of the sinking fund and
interest earned on the fund for —
(i)
the purpose mentioned in subsection (2); and
(ii)
taxes and imposts payable on the fund; and
(iii)
the cost of an audit referred to in paragraph (c)(iii);
and
(iv)
accounting, legal and other professional costs reasonably
incurred in the preparation and approval of the scheme of repayment referred
to in paragraph (e);
and
(c) the
landlord is to —
(i)
keep full and accurate accounts of all money received or
held by the landlord in respect of the sinking fund; and
(ii)
keep the accounts in such manner that they can be
conveniently and properly audited; and
(iii)
at the end of each accounting year cause the accounts to
be audited by an auditor who is a registered company auditor within the
meaning of the Corporations Act 2001 of the Commonwealth; and
(iv)
within 3 months after the end of each accounting year
deliver a copy of that report to the tenant;
and
(d)
subject to subsection (5), the landlord is liable to pay into the sinking fund
any deficiency attributable to the failure by the landlord or any predecessor
in title of the landlord to comply with paragraph (a) or (b); and
(e) if
the retail shopping centre is destroyed, demolished or ceases to operate the
landlord is to —
(i)
prepare a scheme of repayment detailing —
(I) the amount standing to the credit of
the sinking fund (including any interest earned on the fund); and
(II) the relevant
proportion of that amount to which each former tenant is entitled; and
(III) the way in which
the landlord proposes to distribute that amount based upon the relevant
proportion;
and
(ii)
submit the scheme of repayment to the Tribunal for
approval under subsection (4).
(4) The Tribunal is to
examine a scheme of repayment submitted under subsection (3)(e)(ii) and may
approve the scheme or require such amendments to be made to the scheme as the
Tribunal thinks fit and the landlord is to repay to each former tenant the
amount set forth in the scheme of repayment or amended scheme of repayment, as
the case requires.
(5) A landlord is only
liable for a deficiency under subsection (3)(d) in respect of a claim for that
deficiency notified to the landlord by the tenant within a period of 3 years
following the receipt by the tenant of the copy of the report of the auditor
referred to in subsection (3)(c)(iv) disclosing the deficiency.
(6) If a landlord does
not comply with the requirement referred to in subsection (3)(c)(iv), the
tenant is not obliged to pay, and the landlord is not entitled to recover,
payments to the sinking fund from the date of that noncompliance until the
landlord complies with that requirement.
(7) In this section
and in section 12B —
bank means —
(a) an
ADI (authorised deposit-taking institution) as defined in section 5 of the
Banking Act 1959 of the Commonwealth; or
(b) a
bank constituted by a law of a State, a Territory or the Commonwealth;
former tenant in relation to premises means the
last tenant to carry on business at those premises.
[Section 12A inserted: No. 66 of 1998 s. 9;
amended: No. 26 of 1999 s. 65(2) and (3); No. 10 of 2001 s. 220; No. 55 of
2004 s. 122.]