17 Payment of rent when lessor’s fitout not completed
(1) This section applies to a retail shop lease if:(a) the liability of the lessee to pay rent under the lease commences on the lessee entering into possession of the retail shop (whether or not the lessee is required to enter into possession by a specified date), and(b) the lessor has fitout obligations under the lease (that is, the lessor is required to provide any finishes, fixtures, fittings, equipment or services before the lessee enters into possession of the shop).(2) A retail shop lease to which this section applies is taken to provide that:(a) the lessee is not liable to pay rent, or any other amount payable under the lease by the lessee (such as an amount payable in respect of outgoings), in respect of any period before the lessor has substantially complied with the lessor’s fitout obligations, and(b) the lessor is not entitled to deny the lessee possession of the retail shop merely because the lessor has not complied with the lessor’s fitout obligations under the lease.
18 Restrictions on adjustment of base rent
(1) In this section:base rent means rent, or that component of rent, which comprises a specified amount of money (whether or not there is provision for the amount to change).
Note. Turnover rent (rent determined by reference to the lessee’s turnover) is not base rent because turnover rent is not a specified amount of money (it varies according to the lessee’s turnover).(2) A retail shop lease must not provide for a change to base rent less than 12 months after the lease is entered into and must not provide for a change to that rent less than 12 months after any previous change to that rent. This subsection does not apply to a change to base rent by a specified amount or specified percentage.Note. For example, subsection (2) prevents a lease providing for an increase to current market rent more than once in 12 months. It does not prevent a lease providing for the rent to increase by $100 every 6 months. Nor does it prevent a lease providing for the rent to be increased to current market rent after 12 months and then to be increased by 2% every 6 months after that.(3) A provision of a retail shop lease is void to the extent that it:(a) reserves or has the effect of reserving to one party a discretion as to which of 2 or more methods of calculating a change to base rent is to apply on a particular occasion of a change to that rent, or(b) provides for a method of calculating a change to the base rent but reserves or has the effect of reserving to one party a discretion as to whether or not the base rent is to be changed in accordance with that method on a particular occasion, or(c) provides for base rent to change on a particular occasion in accordance with whichever of 2 or more methods of calculating the change would result in the higher or highest rent.(4) If a retail shop lease provides for a change to base rent in a way that has the potential to cause that rent to decrease (such as a provision for the rent to change to current market rent), a provision of the lease is void to the extent that it:(a) prevents or enables the lessor or any other person to prevent base rent decreasing pursuant to the change, or(b) limits or specifies, or allows the limitation or specification of, the amount by which the base rent is to decrease.
19 Reviews of current market rent
(1) A retail shop lease that provides for rent to be changed to current market rent is taken to include provision to the following effect:(a) The current market rent is the rent that would reasonably be expected to be paid for the shop, as between a willing lessor and a willing lessee in an arm’s length transaction (where the parties are each acting knowledgeably, prudently and without compulsion), determined on an effective rent basis, having regard to the following matters:(i) the provisions of the lease,(ii) the rent that would reasonably be expected to be paid for the shop if it were unoccupied and offered for renting for the same or a substantially similar use to which the shop may be put under the lease,(iii) the gross rent, less the lessor’s outgoings payable by the lessee,(iv) rent concessions and other benefits that are frequently or generally offered to prospective lessees of unoccupied retail shops.The current market rent is not to take into account the value of goodwill created by the lessee’s occupation or the value of the lessee’s fixtures and fittings on the retail shop premises.
(b) If the lessor and the lessee do not agree as to what the actual amount of that rent is to be, the amount of the rent is to be determined by valuation carried out by a specialist retail valuer appointed by agreement of the parties to the lease, or failing agreement, by the Tribunal.(c) The matters set out in paragraph (a) are to be taken into account by a specialist retail valuer appointed under paragraph (b) in determining the amount of the rent.(d) The lessor must, not later than 14 days after being requested to do so by a specialist retail valuer appointed under paragraph (b), supply the valuer with information (where reasonably available to the lessor) requested in a list provided by the valuer to assist the valuer to determine the current market value, including the following information about leases for comparable retail shops in the same building or retail shopping centre:(i) current rental for each lease,(ii) rent free periods or any other form of incentive,(iii) recent or proposed variations of any lease,(iv) outgoings for each lease,and including any other information prescribed by the regulations.(e) A valuation for the purposes of paragraph (b) is to be in writing, to contain detailed reasons for the specialist retail valuer’s determination and to specify the matters to which the valuer had regard for the purposes of making his or her determination.(f) The parties to the lease are to pay the costs of a valuation by a specialist retail valuer appointed under paragraph (b) in equal shares.Note. The procedure provided by this section can be avoided if the parties can come to an agreement as to what the rent is to be.(1A) A party to a lease may apply to the Tribunal for the appointment of a specialist retail valuer for the purposes of subsection (1) (b).(1B) A party to a lease may make written submissions to a specialist retail valuer to assist in the valuer’s consideration of the valuation, and the valuer must consider any such written submissions.(2) A specialist retail valuer must make a valuation of a current market rent for the purposes referred to in this section not later than 1 month after receiving the information referred to in subsection (1) (d).(3) A specialist retail valuer may apply to the Tribunal under Part 8 for an order that a lessor comply with a request referred to in subsection (1) (d) to supply relevant information about leases for retail shops situated in the same building or retail shopping centre to assist the valuer to determine the rent.(4) The reasons and matters included in a valuation as referred to in subsection (1) (e) must not be set out in a way that discloses information identifying other leases or parties to other leases or relating to the business of parties to other leases. This subsection does not apply to leases between the parties to the lease for which the valuation is made or to leases whose parties consent to the disclosure of the information.
19A Information supplied to valuer
(1) A specialist retail valuer who is supplied with information by a lessor or a lessee for the purpose of determining under section 19 the amount of rent under a retail shop lease must not:(a) use or permit the use of the information for any purpose other than to determine the current market rent for the lease concerned, or(b) communicate or divulge that information to any other person or permit that information to be communicated or divulged to any other person.Maximum penalty: 50 penalty units.
(2) This section does not prevent the specialist retail valuer using or communicating or divulging that information, or permitting any other person to do so, in the following circumstances:(a) in accordance with a consent of both the lessor and the lessee,(b) to a court or tribunal,(c) in a way that does not disclose information identifying a particular lease or lessee, or relating to a lessee’s business, for the purpose of specifying the matters taken into consideration in making the determination concerned.(3) A specialist retail valuer who contravenes this section is liable to pay to the lessor or lessee concerned compensation for any loss or damage suffered by the lessor or lessee as a result of the information being so used or communicated or divulged. The amount of the compensation is to be the amount agreed between the valuer and the person seeking compensation or, in the event of a failure to agree, as determined by the Tribunal under Part 8.
(1) For the purposes of any provision of a retail shop lease that relates to the determination of rent or a component of rent by reference to turnover, turnover does not include any of the following:(a) the amount of losses incurred in the resale or disposal of merchandise reasonably and properly purchased from customers as trade-ins in the usual course of business,(b) the amount of deposits and instalments received on account of lay-bys, hire purchase or credit sales, and which are refunded to customers,(c) the amount of a refund on a transaction when the proceeds of the transaction have been included as part of turnover,(d) the amount of any service, finance or interest charges payable to any financier in connection with provision of credit to customers (other than commissions on credit or store cards),(e) the price of merchandise exchanged between shops of the lessee if the exchange is made solely for the convenient operation of the business of the lessee and not for the purpose of concluding a sale made at or from the shop to which the lease relates,(f) the price of merchandise returns to shippers, wholesalers or manufacturers,(g) the proceeds of sale of the lessee’s fixtures and fittings after their use in the conduct of business at or from the retail shop to which the lease relates,(h) the amount of discounts allowed to customers in the normal course of business,(i) the amount of uncollected credit accounts that are written off,(j) the amount paid or payable by the lessee as GST,(k) the amount of delivery charges,(l) the amount received from the sale of lottery tickets and similar tickets (other than commission on those sales).(2) The lease is taken to provide for any underpayment or overpayment of rent (resulting from actual turnover differing from projected or presumed turnover) to be adjusted within 1 month after the lessee requests the lessor in writing for such an adjustment and provides the lessor with such information as the lessor may reasonably require to make the adjustment.(3) The lessee may make a request for such an adjustment only once in the first 12 months of the lease term and thereafter only at intervals of not less than 12 months following the first request for an adjustment under the lease. This subsection does not prevent the lease providing for, or the parties otherwise agreeing to, more frequent adjustments than are provided for by this section.(4) For the purposes of this section, the concept of “turnover” includes gross takings, gross receipts, gross income and similar concepts.
21 Special rent—cost of fitout
Nothing in this Act prevents a retail shop lease from providing for the payment of a special rent (in addition to any other rent) to cover the cost of fitout, fixtures, fittings and equipment installed or provided by the lessor at the lessor’s expense.
21A Rent variations for short-term leases
(1) This section applies to a lease where the term of the lease is extended by the operation of section 16 (2) and the lease does not contain provisions for the variation of the rent during the additional period. The lease is taken to contain provisions of that kind if the provisions are expressed generally so as to be capable in their terms of applying throughout the whole term of the lease.Note. This section would not apply to a lease for 3 years extended to 5 years by the operation of section 16 (2) if the lease contained provisions for “annual” increases of rent without expressly limiting the increases to the 3-year term.(2) The lease is taken to provide that the lessor may increase the rent as from the date of commencement of the additional period and thereafter annually from that date.(3) The amount of rent periodically payable resulting from an increase under subsection (2) must not exceed the base amount, adjusted in line with movements in the Consumer Price Index (All Groups Index) for Sydney and rounded up to the nearest dollar. The base amount is the corresponding amount of rent payable immediately before the date of commencement of the additional period.
22 Recovery of outgoings from lessee
(1) The lessee under a retail shop lease is not liable to pay any amount to the lessor in respect of any outgoings except in accordance with provisions of the lease that specify:(a) the outgoings that are to be regarded as recoverable, and(b) how the amount of those outgoings will be determined and how they will be apportioned to the lessee, and(c) how those outgoings or any part of them may be recovered by the lessor from the lessee.(2) In this Part, the expression outgoings to which the lessee contributes refers to any outgoings in respect of which the lessee is liable under the lease to make any payment to the lessor.(3) Costs associated with the advertising or promotion of a retail shop or retail shopping centre, or of any business carried on there, are not outgoings for the purposes of this section.
(1) An agreement that was made between a lessor and a lessee before the date of commencement of this section (whether or not the agreement is contained in a lease), to the extent to which it provides for the payment by or recovery from the lessee of the amount of any GST payable in respect of the lease, is valid and is taken at all relevant times to have been validly made.(2) This section has effect despite any other provision of this Act.
23 Capital costs not recoverable from lessee
A provision in a retail shop lease is void to the extent that it requires the lessee to pay any amount in respect of the capital costs of the building in which the retail shop is located or (in the case of a retail shop in a retail shopping centre) of any building in the retail shopping centre or any areas used in association with any such building.
24 Depreciation not recoverable from lessee
A provision in a retail shop lease is void to the extent that it requires the lessee to pay any amount in respect of depreciation.
24A Interest and charges incurred by lessor on borrowings not recoverable from lessee
A provision in a retail shop lease is void to the extent that it requires the lessee to pay an amount in respect of interest or other charges incurred by the lessor in respect of amounts borrowed by the lessor.
24B Rent and other costs associated with other land not recoverable from lessee
(1) A provision in a retail shop lease is void to the extent that it requires the lessee to pay an amount in respect of rent and other costs associated with unrelated land.(2) In this section:unrelated land means land other than:
(a) land on which the building or retail shopping centre of which the retail shop forms part is situated, or(b) land of the lessor used by or for the benefit of the lessees conducting business in that building or retail shopping centre or in connection with trading in that building or retail shopping centre.
25 Sinking fund for major repairs and maintenance
If a retail shop lease provides for the establishment of a sinking fund to fund provision for major items of repair or maintenance, the lease is taken to include provision to the following effect:(a) Any amount paid by the lessee in respect of the lessor’s outgoings on account of those major items of repair or maintenance is to be paid into the sinking fund.(b) So much of the balance standing to the credit of the sinking fund as remains unexpended from time to time for any purpose for which the sinking fund was established is to be held by the lessor in an account bearing interest.(c) Amounts paid by the lessee for credit of the sinking fund, and the net interest earned by the lessor on the sinking fund, must not be applied by the lessor for any purpose other than payment of any outgoings for which the sinking fund was established.(d) The lessor is liable to contribute to the sinking fund any deficiency attributable to a failure by the lessor or any predecessor in title of the lessor to comply with paragraph (c).Note. The effect of paragraph (d) will be that a purchaser of the shop from the lessor will have to ensure that the sinking fund has been properly administered and maintained by the previous lessor because the incoming lessor will be liable for any shortfall.(e) The major items of repair or maintenance for which contribution to the sinking fund may be required by the lessee are limited to repair or maintenance of a building, or plant and equipment of a building, in which the retail shop is situated or, in the case of a retail shopping centre, to the buildings, plant and equipment and areas used in association with the retail shopping centre in which the retail shop is situated.(f) The lessee is not liable to contribute an amount to the sinking fund that is greater than the maximum amount permitted under the Act.(g) The lessor must keep full and accurate accounts of all money received or held by the lessor in respect of the sinking fund.(h) The lessor must give the lessee, not later than 3 months after the end of each accounting period of the lessor during the term of the lease, a sinking fund statement containing details of expenditure during the period from the fund on items for which the lessee is required to contribute. The lessor must also provide with the statement a report on the statement prepared by a registered company auditor (within the meaning of the Corporations Act 2001 of the Commonwealth).(i) A sinking fund statement provided by a lessor to a lessee is to be prepared in accordance with the relevant principles and disclosure requirements of applicable accounting standards made by the Australian Accounting Standards Board, as in force from time to time.
(1) This section applies to the lessor under a retail shop lease that provides for the establishment of a sinking fund to fund provision for major items of repair or maintenance.(2) The lessor must not establish more than one sinking fund at any one time in respect of retail shop leases for retail shops situated in the same building or retail shopping centre.(3) The lessor must not require or accept contributions to the sinking fund in respect of any retail shop situated in a retail shopping centre that total an amount that exceeds 5% of the total of the lessor’s estimated outgoings for the year concerned in respect of the retail shopping centre.(4) The lessor must not require or accept contributions by a lessee to the sinking fund if the amount outstanding to the credit of the sinking fund is more than $250,000.Maximum penalty: 50 penalty units.
(1) This section applies to the lessor under a retail shop lease of a retail shop that provides for the establishment of a sinking fund to fund provision for major items of repair or maintenance.(2) If the building or retail shopping centre in which the retail shop is located is destroyed or demolished or, in the case of a retail shopping centre, the retail shopping centre ceases to operate, the lessor must repay to each lessee liable to contribute to the sinking fund the amount payable to the lessee.(3) The amount payable to the lessee is that proportion of the total amount outstanding to the credit of the sinking fund that is equal to the proportion that the lettable area of the lessee’s retail shop bears to the total lettable area of all the shops in respect of which contributions are required to be made to the fund.(4) In this section:lessor and lessee mean the persons who were the lessor and lessee, respectively, under a retail shop lease immediately before the destruction or demolition of the building, or immediately before the retail shopping centre ceased to operate.
26 Limit on recovery of land tax
(1) A provision of a retail shop lease which requires the lessee to pay money to the lessor in respect of outgoings attributable to land tax payable by the lessor is taken to include provision that the liability of the lessee is not to exceed the amount of that liability had the amount of land tax payable by the lessor been assessed on the basis that:(a) the land concerned was the only land owned by the lessor, and(b) the land concerned was not subject to a special trust (within the meaning of the Land Tax Management Act 1956), and(c) the lessor was not a company classified under section 29 of that Act as a non-concessional company.(2) The land concerned is the land on which the building or retail shopping centre of which the retail shop forms part is situated, together with all the other land of the lessor used or available for use by or for the benefit of the lessees conducting business in that building or retail shopping centre or in connection with trading in that building or retail shopping centre. In the case of a shop comprising a strata lot under the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986, the land concerned is the strata lot.
A retail shop lease is taken to include provision to the following effect:(a) the lessor must give the lessee a written estimate of the outgoings to which the lessee contributes under the lease, itemising those outgoings under the item descriptions used in the list of outgoings in the form of lessor’s disclosure statement prescribed for the purposes of section 11,(b) the estimate of outgoings must be given to the lessee in respect of each accounting period of the lessor during the term of the lease and must be given before the lease is entered into and thereafter during the term of the lease at least 1 month before the commencement of the accounting period concerned,(c) if the shop is in a retail shopping centre, the estimate of outgoings is to include:(i) a statement of management fees, broken down into the fees to be paid by the lessee towards the administration costs of running the centre and other fees paid to the management company, and(ii) a statement of cleaning costs to be paid by the lessee, broken down into the costs of consumables and other costs, and(iii) any other particulars prescribed by the regulations.
(1) A retail shop lease is taken to include provision to the following effect:(a) The lessor must give the lessee a written statement (an outgoings statement) that details all expenditure by the lessor in each accounting period of the lessor during the term of the lease on account of outgoings to which the lessee is required to contribute.(b) If the shop is in a retail shopping centre, the outgoings statement must include a statement of the current gross lettable area of the shopping centre and details of any material change in that gross lettable area during the period to which the outgoings statement relates.(b1) If the shop is in a retail shopping centre, the outgoings statement is to include:(i) a statement of total management fees paid in respect of the centre, broken down into the fees paid towards the administration costs of running the centre and other fees paid to the management company, and(ii) a statement of total cleaning costs paid by the lessor, broken down into the costs of consumables and other costs, and(iii) any other particulars prescribed by the regulations.(c) The outgoings statement is to be prepared in accordance with relevant principles and disclosure requirements of applicable accounting standards made by the Australian Accounting Standards Board, as in force from time to time.(d) The outgoings statement is to be given to the lessee within 3 months after the end of the accounting period to which it relates.(e) The outgoings statement is to be accompanied by a report (an auditor’s report) on the statement prepared by a registered company auditor (within the meaning of the Corporations Act 2001 of the Commonwealth).(f) The auditor’s report is to include a statement by the auditor as to whether or not the outgoings statement correctly states the expenditure by the lessor during the accounting period concerned in respect of outgoings to which the lessee is required to contribute, and as to whether or not the total amount of estimated outgoings for that period (as shown in the estimate of outgoings given to the lessee) exceeded the total actual expenditure by the lessor in respect of those outgoings during that period.(g) The outgoings statement may be a composite statement (that is, it may relate to more than one lessee) so long as each lessee to which it relates is able to ascertain from the statement the information required by paragraph (a) that is relevant to that lessee.(h) The outgoings statement need not be accompanied by an auditor’s report if the statement does not relate to any outgoings other than land tax, water, sewerage and drainage rates and charges, local council rates and charges, insurance and strata levies, and it is accompanied by copies of assessments, invoices, receipts or other proof of payment in respect of all expenditure by the lessor as referred to in paragraph (a).(2) An auditor preparing a report under subsection (1) (e) or the lessor must ensure that the lessee is given a reasonable opportunity to make a written submission to the auditor on the accuracy of the lessor’s proposed outgoings statement. The auditor need not contact the lessee for the purposes of this subsection if the lessor advises the auditor that the lessor has informed the lessee of the lessee’s opportunity under this subsection.(3) The auditor must consider any written submissions made pursuant to subsection (2).
28A Non-provision of outgoings estimate or statement
(1) A lessee is entitled to withhold payment of contributions for outgoings if:(a) the lessor has failed to give the lessee a written estimate of outgoings required under section 27 or an outgoings statement required under section 28, and(b) the lessee has, at or after the expiry of the time when the estimate or statement was required to be given to the lessee, requested the lessor in writing to furnish the estimate or statement to the lessee, and(c) the lessor’s failure has continued for 10 business days after the request was made.(2) The lessee must pay the withheld contributions within 28 days after the lessor furnishes the estimate or statement.(3) The lessor is not entitled to recover interest or late payment charges in respect of contributions withheld in accordance with this section.(4) The lessee is not in breach of the retail shop lease for acting in accordance with this section.(5) This section does not affect any other rights that the lessee has in connection with the lessor’s failure to provide the estimate or statement.
29 Adjustment of contributions to outgoings based on actual expenditure properly and reasonably incurred
A retail shop lease is taken to include provision to the following effect:(a) There is to be an adjustment between the lessor and the lessee for each accounting period of the lessor to take account of any under-payment or over-payment by the lessee in respect of outgoings during the period. The adjustment is to take place within 1 month after the lessor gives the lessee the outgoings statement referred to in section 28 for the period concerned and must in any event take place within 4 months after the end of that period.(b) The adjustment is to be calculated on the basis of the difference between the total amount of outgoings in respect of which the lessee contributed (that is, the estimated total expenditure by the lessor on outgoings during the period concerned) and the total amount actually expended by the lessor in respect of those outgoings during that period, but taking into account only expenditure properly and reasonably incurred by the lessor in payment of those outgoings.(c) Contribution by the lessee towards, and expenditure by the lessor in respect of, repairs and maintenance is not to be taken into account for the purposes of the adjustment to the extent that the contribution is, and the expenditure is in respect of, contributions required to be paid into a sinking fund as referred to in section 25.
30 Non-specific outgoings contribution limited by ratio of lettable area
(1) A lessee under a retail shop lease in a retail shopping centre is not liable to contribute towards a non-specific outgoing of the lessor (that is, an outgoing not specifically referable to any particular shop in the retail shopping centre) unless the shop is one of the shops to which the outgoing is referable, and is not liable to contribute an amount in excess of an amount calculated by multiplying the total amount of that outgoing by the ratio of the lettable area of the shop to the total of the lettable areas of all the retail shops to which the outgoing is referable.(2) An outgoing is referable to a retail shop if the shop is one of the shops that enjoys or shares the benefit resulting from the outgoing.(3) An outgoing on account of GST payable by the lessor in respect of rent payable under a lease is not a non-specific outgoing of the lessor for the purposes of this section.Note. This section prevents a lessee being required to make up for any shortfall in outgoings recouped by the lessor that is attributable to vacant shops or concessions allowed to other lessees.
31 Reviews of current market rent
(1) A retail shop lease that provides an option to renew or extend the lease at current market rent is taken to include provision to the following effect:(a) The current market rent is the rent that would reasonably be expected to be paid for the shop, as between a willing lessor and a willing lessee in an arm’s length transaction (where the parties are each acting knowledgeably, prudently and without compulsion), determined on an effective rent basis, having regard to the following matters:(i) the provisions of the lease,(ii) the rent that would reasonably be expected to be paid for the shop if it were unoccupied and offered for renting for the same or a substantially similar use to which the shop may be put under the lease,(iii) the gross rent, less the lessor’s outgoings payable by the lessee,(iv) rent concessions and other benefits that are frequently or generally offered to prospective lessees of unoccupied retail shops.The current market rent is not to take into account the value of goodwill created by the lessee’s occupation or the value of the lessee’s fixtures and fittings on the retail shop premises.
(b) If the lessor and the lessee do not agree as to what the actual amount of that rent is to be, the amount of the rent is to be determined by valuation carried out by a specialist retail valuer appointed by agreement of the parties to the lease, or failing agreement, by the Tribunal.(c) The matters set out in paragraph (a) are to be taken into account by a specialist retail valuer appointed under paragraph (b) in determining the amount of the rent.(d) The lessor must, not later than 14 days after being requested to do so by a specialist retail valuer appointed under paragraph (b), supply the valuer with information (where reasonably available to the lessor) requested in a list provided by the valuer to assist the valuer to determine the current market value, including the following information about leases for comparable retail shops in the same building or retail shopping centre:(i) current rental for each lease,(ii) rent free periods or any other form of incentive,(iii) recent or proposed variations of any lease,(iv) outgoings for each lease,and including any other information prescribed by the regulations.(e) A valuation for the purposes of paragraph (b) is to be in writing and to contain detailed reasons for the specialist retail valuer’s determination and to specify the matters to which the valuer had regard for the purposes of making his or her determination.(f) The parties to the lease are to pay the costs of a valuation by a specialist retail valuer appointed under paragraph (b) in equal shares.Note. The procedure provided by this section can be avoided if the parties can come to an agreement as to what the rent is to be.(1A) A party to a lease may apply to the Tribunal for the appointment of a specialist retail valuer for the purposes of subsection (1) (b).(1B) A party to a lease may make written submissions to a specialist retail valuer to assist in the valuer’s consideration of the valuation, and the valuer must consider any such written submissions.(2) A specialist retail valuer must make a valuation of a current market rent for the purposes referred to in this section not later than 1 month after receiving the information referred to in subsection (1) (d).(3) A specialist retail valuer may apply to the Tribunal under Part 8 for an order that a lessor comply with a request referred to in subsection (1) (d) to supply relevant information about leases for retail shops situated in the same building or retail shopping centre to assist the valuer to determine the rent.(4) The reasons and matters included in a valuation as referred to in subsection (1) (e) must not be set out in a way that discloses information identifying other leases or parties to other leases or relating to the business of parties to other leases. This subsection does not apply to leases between the parties to the lease for which the valuation is made or to leases whose parties consent to the disclosure of the information.
31A Information supplied to valuer
(1) A specialist retail valuer who is supplied with information by a lessor or a lessee for the purpose of determining under section 31 the amount of rent under a retail shop lease must not:(a) use or permit the use of the information for any purpose other than to determine the current market rent for the lease concerned, or(b) communicate or divulge that information to any other person or permit that information to be communicated or divulged to any other person.Maximum penalty: 50 penalty units.
(2) This section does not prevent the specialist retail valuer using or communicating or divulging that information, or permitting any other person to do so, in the following circumstances:(a) in accordance with a consent of both the lessor and the lessee,(b) to a court or tribunal,(c) in a way that does not disclose information identifying a particular lease or lessee, or relating to a lessee’s business, for the purpose of specifying the matters taken into consideration in making the determination concerned.(3) A specialist retail valuer who contravenes this section is liable to pay to the lessor or lessee concerned compensation for any loss or damage suffered by the lessor or lessee as a result of the information being so used or communicated or divulged. The amount of the compensation is to be the amount agreed between the valuer and the person seeking compensation or, in the event of a failure to agree, as determined by the Tribunal.
32 Opportunity for lessee to have current market rent determined early
(1) A retail shop lease which provides an option to renew or extend the lease at current market rent is taken to include provision to the following effect:(a) The lessee is entitled to request a determination of the current market rent at any time within the period that begins 6 months before and ends 3 months before the last day on which the option may be exercised under the lease, but may not make such a request if the lessor and the lessee have already agreed as to what the actual amount of that rent is to be.(b) The lessee makes such a request by giving notice in writing of the request to the lessor.(c) If the lessee makes such a request, the amount of the current market rent is to be determined (as at the time of the request) in accordance with the provisions of section 31, and the period within which the lessee must exercise the option is varied so that the last day on which the option may be exercised is 21 days after the determination of rent is made and notified to the lessee in writing.If the determination of rent is not notified within 21 days before the end of the term of the lease, the lessee may exercise the option within 21 days after the determination is notified in writing to the lessee (whether before or after the term of the lease), and the term of the lease is extended by the appropriate period to enable the lessee to exercise the option after the lease would otherwise expire.
(d) The parties agree that the amount of rent determined under paragraph (c) is the current market rent for the purposes of the exercise of the option (even though it may be a determination of the current market rent as at some earlier time).(e) The parties to the lease are to pay the costs of the determination of current market rent in equal shares.(2) If the term of the lease is 12 months or less, the periods of 6 months and 3 months in this section are shortened to 3 months and 30 days respectively.
32A Review of current market rent determinations
(1) Application for review
A party to a lease may apply to the Tribunal for the appointment of two specialist retail valuers to conduct a review of a determination of the current market rent made by a specialist retail valuer made under section 19 or 31.(2) The application for a review must be made within 21 days after the party first received a copy of the determination.Note. Subsection (13) provides another opportunity to make an application for a review if the decision on the review is set aside.(3) Review by and decision of valuers
The specialist retail valuers may conduct the review and may jointly:(a) affirm the reviewed determination, or(b) vary the reviewed determination.(4) Subject to this section, the provisions of sections 19 and 19A or sections 31 and 31A, as the case requires, apply (with any necessary adaptations) to and in respect of the specialist retail valuers in the same way as those provisions apply to and in respect of the original specialist retail valuer.(5) Without limiting subsection (4), the specialist retail valuers jointly and severally have the powers and obligations of the original specialist retail valuer in connection with obtaining information under the provisions referred to in that subsection.(6) The specialist retail valuers are to conduct the review and reach their decision not later than one month after they are notified of their appointment.(7) If the specialist retail valuers are unable to agree by the end of the month referred to in subsection (6), the valuers are taken to have decided to affirm the determination.(8) Access to original determination and information
It is the duty of the specialist retail valuer (the original valuer) who made the original determination, and of each party to the lease, to ensure that the specialist retail valuers reviewing the determination are given access to:(a) the original determination, and(b) information relating to the matters, specified in the original determination, to which the original valuer had regard to in making the original determination, to the extent that the information is available to the original valuer or party,unless the specialist retail valuers indicate that they do not require access to the determination or information to be given to them under this subsection.(9) Costs of review
The following provisions apply to the costs of the review by the specialist retail valuers:(a) the parties to the lease are to pay the costs of the review in equal shares, unless paragraph (b) applies,(b) the party who applies for the appointment of the specialist retail valuers is to pay the costs of the review, if the current market value is jointly determined by the specialist retail valuers to be the same as or within 10 per cent of the amount specified in the original determination,(c) section 88 of the Administrative Decisions Tribunal Act 1997 does not apply to the costs of the review.(10) Effect, finality and setting aside of decision
A varied determination has effect as if it were the original determination.(11) Subject to subsection (12), the joint decision of the specialist retail valuers is final and binding on the parties to the lease.(12) The Tribunal:(a) may, on application made by a party to the lease within 21 days after the decision of the specialist retail valuers is given, order that the decision be set aside, if satisfied that the valuers have manifestly made a fundamental error warranting such an order, and(b) may also order that the costs of the review are not payable by the parties or, if paid, are to be refunded.The decision is not otherwise reviewable by or appellable to the Tribunal.
(13) If the decision is set aside, a party to the lease may make a fresh application to the Tribunal under subsection (1) in relation to the original determination within the period of 21 days after the date of the order setting it aside, and this section applies accordingly.