Part 7 Additional requirements for retail shopping centres
49 Part applies only to retail shopping centres
This Part applies only to retail shop leases of shops in retail shopping centres and (in respect of those leases) applies in addition to the other provisions of this Act.
50 Confidentiality of turnover information
If a retail shop lease requires the lessee to provide information to the lessor concerning the turnover of the business of the lessee, the lessor must not divulge or communicate to any person any information so provided by the lessee, but this does not prevent the lessor communicating or divulging any such information:(a) with the consent of the lessee, or(b) in a document giving aggregate turnover information about a retail shopping centre in a manner that does not disclose information relating to the turnover of an individual lessee’s business, or(c) to a court or arbitrator or for the purposes of any mediation or valuation for the purposes of this Act or the lease, or(d) in compliance with a requirement made by or under an Act, or(e) to the lessor’s professional advisers (such as legal or financial advisers), or to the proper officer of any financial institution for the purpose in good faith of enabling the lessor to obtain financial accommodation, or(f) in good faith to a prospective purchaser of the retail shop or the building of which it forms part.Maximum penalty: 20 penalty units.
51 Statistical information to be made available to lessee
If a retail shop lease requires the lessee to pay any amount in respect of outgoings on account of expenditure incurred in obtaining statistical information (such as “traffic counts”), the lease is taken to include provision that the lessor must make any information so obtained by the lessor available to the lessee.
52 Advertising and promotion requirements
A provision in a retail shop lease is void to the extent that it requires the lessee to undertake any advertising or promotion of the lessee’s business. This section does not apply to a provision in a lease that requires any payment to the lessor for advertising and promotion costs incurred or to be incurred by the lessor.Note. This does not prevent a lessee deciding to make an additional contribution towards advertising and promotion. It is good leasing practice for a lessor to require all lessees in the shopping centre to contribute towards advertising and promotion costs for the centre.
53 Marketing plan for advertising and promotion
If a retail shop lease requires the lessee to pay any amount to the lessor in respect of advertising and promotion costs, the lease is taken to include provision to the following effect:(a) The lessor must, at least 1 month before the start of each accounting period of the lessor, make available to the lessee a marketing plan that gives details of the lessor’s proposed expenditure on advertising and promotion during that accounting period.(b) If such a payment relates to an opening promotion, the lessor must, at least 1 month before that opening promotion, make available to the lessee details of the proposed expenditure on that promotion.
54 Six-monthly advertising and promotion expenditure statement to be made available to lessees
(1) A retail shop lease is taken to include provision to the following effect:(a) The lessor must make a written statement available for examination by a lessee detailing all expenditure relating exclusively to the building or centre in which the retail shop is located by the lessor on account of advertising and promotion costs to which the lessee is required to contribute under the lease.(b) The lessor must make the statement available at least twice in each of the lessor’s accounting periods during the term of the lease (once in relation to expenditure during the first 6 months of each such accounting period and once in relation to expenditure during the second 6 months of each such accounting period).(c) The statement must be made available within 1 month after the end of the 6 month period to which it relates.(2) The details to be provided in a statement made available under this section in relation to an accounting period must also include:(a) in respect of expenditure by the lessor on account of advertising and promotion costs of the lessor:(i) a statement of the amount contributed by the lessor in respect of expenditure relating exclusively to the building or centre, and(ii) a statement of the total of the amounts contributed by the lessees, and(b) in respect of contributions by the lessor on account of advertising and promotion costs of the lessor relating exclusively to the building or centre and in respect of contributions by the lessees on account of advertising and promotion costs of the lessor:(i) a statement of the total unspent amount carried forward to that period, and(ii) a statement of the total unspent amount to be carried forward to the next period, and(c) any other statements prescribed by the regulations.
55 Annual advertising and promotion expenditure statement to be given to lessees
(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 advertising statement) that details all expenditure relating exclusively to the building or centre in which the retail shop is located by the lessor in each accounting period of the lessor during the term of the lease on account of advertising or promotion costs to which the lessee is required to contribute under the lease.(b) The advertising 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.(c) The advertising statement is to be given to the lessee within 3 months after the end of the accounting period to which it relates.(d) The advertising 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).(e) The auditor’s report is to include a statement by the auditor as to whether or not the advertising statement correctly states the expenditure by the lessor during the accounting period concerned in respect of advertising or promotion costs to which the lessee is required to contribute.(2) The details to be provided in an advertising statement given to a lessee under this section in relation to an accounting period must also include:(a) in respect of expenditure by the lessor on account of advertising and promotion costs of the lessor:(i) a statement of the amount contributed by the lessor in respect of expenditure relating exclusively to the building or centre, and(ii) a statement of the total amount contributed by the lessee, and(b) in respect of contributions by the lessor on account of advertising and promotion costs of the lessor relating exclusively to the building or centre and in respect of contributions by the lessee on account of advertising and promotion costs of the lessor:(i) a statement of the total unspent amount carried forward to that accounting period, and(ii) a statement of the total unspent amount to be carried forward to the next accounting period, and(c) any other statements prescribed by the regulations.(3) An auditor preparing a report under subsection (1) (d) 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 advertising 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.(4) The auditor must consider any written submissions made pursuant to subsection (3).
55A Non-provision of marketing plan or advertising and promotion statement
(1) A lessee is entitled to withhold payment of contributions in respect of advertising or promotion costs of the lessor if:(a) the lessor has failed:(i) to make available to the lessee a marketing plan required under section 53 (a), or(ii) to make available to the lessee details of proposed expenditure on an opening promotion as required under section 53 (b), or(iii) to make available to the lessee a written statement of expenditure required under section 54, or(iv) to give the lessee an advertising statement required under section 55, and(b) the lessee has, at or after the expiry of the time when the plan, details or statement was required to be made available to or given to the lessee, requested the lessor in writing to furnish the plan, details 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 plan, details 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 plan, details or statement.
56 Unexpended advertising and promotion contributions to be carried forward
A retail shop lease is taken to include provision that any amount contributed by a lessee in the shopping centre under a retail shop lease in respect of advertising or promotion costs of the lessor and which is not spent for the purpose for which it was contributed must be carried forward by the lessor, to be applied towards future expenditure on advertising or promotion of the centre.
58 Termination for inadequate sales prohibited
A retail shop lease must not contain a provision that permits or otherwise provides for the termination of the lease on the ground that the lessee or the business of the lessee has failed to achieve specified sales or turnover performance.
(1) A lease must not contain a provision which has the effect of preventing or restricting the lessee from carrying on business outside the retail shopping centre, either during the term of or after the expiry of the lease.(2) This section does not operate to prevent a lease or other agreement from containing a provision that prevents the use of the name of the retail shopping centre in connection with a business carried on outside the shopping centre.
A lease must not contain a provision which has the effect of preventing or restricting the lessee from joining, forming or taking part in any activities of any tenants association or other similar body.Note. This section does not prevent a lessor from encouraging lessees to become involved in marketing advisory panels.
(1) A lease of a retail shop is taken to include provision to the effect that a lessor is not entitled to change the core trading hours of the retail shopping centre of which the shop forms part except with the approval in writing of the lessees of a majority of the retail shops in the shopping centre (whether or not those retail shops are retail shops to which this Act applies). The initial fixing of trading hours in a new shopping centre is not a change to core trading hours and is not affected by this subsection.(2) Subsection (1) does not operate to permit a lessor to ignore the requirements of any other agreement, arrangement or understanding that prevents or restricts a change to core trading hours by the lessor in a retail shopping centre.Note. An example of how subsection (2) operates is where another agreement requires a 75% majority of lessees to be in favour of a change to core trading hours before the lessor can make the change. Subsection (2) requires that the other agreement be complied with also, so that a 75% majority must be obtained and not merely the 50% majority required by subsection (1).(3) This section does not prevent a lease providing for the action that may be taken by a lessor in the event of a lessee not trading in accordance with core trading hours, including provisions:(a) enabling the lessor, as a condition of granting consent to a lessee trading outside core trading hours, to require the lessee to pay, or pay a contribution towards, the costs of opening the retail shopping centre during those extended trading hours, or(b) requiring a lessee who trades outside core trading hours to make specified payments or additional payments in respect of advertising and promotional costs for the shopping centre.(4) The core trading hours of a retail shopping centre are the times when retail shops in the shopping centre are required to be open for business, whether the requirement is imposed by or under a lease or by or under some other agreement, arrangement or understanding between lessors and the lessees.
62 Special provision for strata shopping centres
If a retail shop lease applies in respect of a shop that comprises the whole or part of a strata lot under the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986, sections 50–56 and 61 apply in respect of the lease as if:(a) references in those sections to a retail shop lease (or a provision of the lease) included a reference to the by-laws (or a provision of the by-laws) for the strata scheme concerned, and(b) references in those sections to the lessor included reference to the body corporate under the strata scheme concerned and any centre manager appointed, employed or engaged by the body corporate to have management functions in respect of the centre.Note. Considering section 54 as an example of the operation of section 62:The provisions of section 54 are taken to form part of the by-laws for the retail shopping centre. The section will then operate to impose requirements on the lessor, the body corporate and the centre manager. If advertising and promotion costs are charged to a lessee under the by-laws and not the lease, the lessor will have no obligations under section 54 because those amounts are not charged under the lease. The body corporate and the centre manager on the other hand will have the obligations that the lessor would otherwise have had.