Western Australian Current Acts Western Australian Current Acts (1) Without limiting
subsection (2)(a), where a retail shop lease contains a provision to the
effect that the rent is to be determined either in whole or in part by
reference to the turnover of the business and —
(a) the
tenant did not, by notice in writing in the prescribed form given to the
landlord before the provision was included in the lease, elect that the rent
should be so determined; and
(b) the
tenant, by notice in writing given to the landlord, objects to the rent being
so determined,
the provision is void
as from the day on which the notice referred to in paragraph (b) is given.
(2) Where a retail
shop lease contains a provision to the effect that the rent is to be
determined either in whole or in part by reference to the turnover of the
business —
(a) that
provision is void if the lease does not specify the formula by which the
amount of the rent is to be determined; and
(b)
unless by reason of this section that provision is void, the lease shall be
taken to provide that the tenant shall furnish to the landlord —
(i)
not later than 14 days after the end of each month in
respect of which the rent or any of the rent is to be so determined or at such
other times as are agreed between the parties, a statement in writing
specifying the turnover of the business during that month; and
(ii)
not later than 42 days after the end of each calendar
year, or each financial year of the business, during which the rent or any of
the rent is to be so determined or at such other times as are agreed between
the parties, and at the termination of the lease, a statement of the turnover
of the business certified by an accountant to truly and accurately represent
the turnover of the business during the last preceding year or, where the
lease has terminated other than at the end of a year, during the part of that
year before which the lease terminated.
(3) Where the tenant
under a retail shop lease furnishes to the landlord statements in accordance
with subsection (2)(b)(i) and (ii) in respect of a period he shall be taken to
have satisfied any obligation under the lease to provide turnover figures or
statements in relation to the business in respect of that period but shall, at
the request of the landlord, permit an accountant engaged by the landlord to
carry out an audit of those turnover figures at the cost of the landlord and
shall reimburse the landlord for the cost of the audit if the audit discloses
that the statement furnished under subsection (2)(b)(ii) understated the
turnover of the business during the relevant period by more than 5%.
(4) For the purposes
of subsection (2)(b) and (3) and the construction of any provision of a retail
shop lease that relates to the determination of rent by reference to turnover
(but without limiting the generality of that expression in subsection (1)),
turnover does not include —
(a) the
nett amount of discounts reasonably and properly allowed to any customer in
the usual course of business; and
(b) the
amount of losses incurred in the resale or disposal of goods reasonably and
properly purchased from customers as trade-ins in the usual course of
business; and
(c) the
amount of uncollected credit accounts written off by the tenant; and
(d) the
amount of any cash or credit refund allowed on a transaction the proceeds of
which have previously been included as gross receipts where the merchandise is
returned and the sale is cancelled or fees for the services are refunded
wholly or partly; and
(e) the
amount of any instalment of purchase moneys refunded to customers where a
lay-by transaction is cancelled; and
(f) the
amount of any purchase, receipt or other similar tax imposed upon the purchase
price or cost of hire of merchandise or services at the point of sale or hire;
and
(g) the
amount of delivery charges; and
(h) the
price of merchandise exchanged between stores of the tenant made solely for
the convenient operation of business and not for the purpose of concluding a
sale made at or from the retail shop the subject of the lease; and
(i)
the price of merchandise returned to shippers,
wholesalers or manufacturers; and
(j) the
amount received from the sale of the fixtures and fittings of the tenant from
the retail shop the subject of the lease; and
(k)
receipts from sales of tickets in any lottery within the meaning of that term
in the Lotteries Commission Act 1990 , other than amounts derived as
commission or fees from those sales.
(5) Where by reason of
this section, a provision of a retail shop lease to the effect that rent is to
be determined either in whole or in part by reference to the turnover of the
business is void, the rent shall be as is agreed in writing between the
parties or determined by the Tribunal.
[Section 7 amended: No. 26 of 1998 s. 23; No. 5 of
2008 s. 17.]