Western Australian Current Acts Western Australian Current Acts (1) Subject to
subsection (3), where —
(a) the
landlord under a retail shop lease holds the premises concerned under a head
lease with which it would be inconsistent for the retail shop lease to
continue until the day provided for by section 13(1); and
(b) the
head lessor and the head lessee under the head lease are related within the
meaning given to that expression by subsection (4); and
(c) the
continuation of the retail shop lease as referred to in paragraph (a) would be
consistent with the interest of the head lessor in the premises concerned,
the head lease shall
be taken to be modified, by operation of this subsection, to the extent
necessary to remove the inconsistency referred to in paragraph (a).
(2) Where agreement
has not been reached upon any question as to the extent to which a head lease
is modified by operation of subsection (1), a person having an interest in the
resolution of the question may refer the question to the Tribunal and Part III
applies in relation to the hearing and the agreement or determination of the
matter as if —
(a) the
question were a question arising under a retail shop lease; and
(b) the
parties to the head lease and, where the person referring the question to the
Tribunal is not a party to the head lease, that person were the parties to the
retail shop lease.
(3) The Tribunal may,
upon application made to it by the head lessor notice of which has been given
to the head lessee and the tenant, determine that there are bona fide
commercial reasons, other than the desire to avoid the operation of any
provision of section 13, for the head lease and the provisions thereof giving
rise to the inconsistency referred to in subsection (1)(a) and, if the
Tribunal so determines, subsection (1) is of no effect in relation to that
head lease.
(4) For the purposes
of this section the head lessor and the head lessee under a head lease are
related if —
(a) one
of them is, or is the spouse or de facto partner of, a lineal descendant of a
grandparent of the other;
(b) one
of them is a related body corporate of the other within the meaning of the
Corporations Act 2001 of the Commonwealth;
(c) one
of them is a corporation within the meaning of the Corporations Act 2001 of
the Commonwealth and the other —
(i)
is an officer, within the meaning of the Corporations
Act 2001 of the Commonwealth, of that corporation; or
(ii)
is a shareholder of, or holds a beneficial or contingent
interest in a share in, that corporation; or
(iii)
is a discretionary or other beneficiary of a trust, the
trustee of which is a shareholder of, or holds a beneficial interest in a
share in, that corporation; or
(iv)
is, or is the spouse or de facto partner of, a lineal
descendant of a grandparent of a person described by subparagraph (i), (ii) or
(iii);
(d) one
of them is accustomed or under an obligation, whether formal or informal, to
act in accordance with the directions, instructions or wishes of the other in
relation to the premises the subject of the head lease;
(e) one
of them is —
(i)
an employee; or
(ii)
an agent, a principal, a partner, a nominee, a solicitor,
an accountant or an auditor,
of the other or of a
person bearing to the other any of the relationships mentioned in subparagraph
(ii);
(f) one
of them is —
(i)
a trustee for the other; or
(ii)
a trustee of a trust of which the other is a
discretionary or other beneficiary.
(5) For the purposes
of this section, where the head lessor or the head lessee, or each of those
parties, comprises more than one person, a relationship of a kind mentioned in
subsection (4) shall be taken to be established with a party if such a
relationship is established with any of the persons of whom or of which that
party is comprised.
[Section 13A inserted: No. 49 of 1985 s. 5;
amended: No. 48 of 1990 s. 11; No. 10 of 2001 s. 39; No. 28 of 2003 s. 17; No.
55 of 2004 s. 125.]