{"id":"business-tenancies-fair-dealings-act-2003","name":"Business Tenancies (Fair Dealings) Act 2003","slug":"business-tenancies-fair-dealings-act-2003","collection":"act","jurisdiction":"nt","status":"in_force","isInForce":true,"actNumber":null,"makingDate":null,"administeringDepartment":null,"currentVersion":{"id":29886,"registerId":"nt-business-tenancies-fair-dealings-act-2003-current","compilationNumber":null,"startDate":"2026-04-01","status":"InForce","reasons":null,"registeredAt":null},"sections":[{"sectionNumber":"1","sectionType":"section","heading":"Short title","content":"1 Short title\nThis Act may be cited as the Business Tenancies (Fair Dealings)\nAct 2003.\n","sortOrder":0},{"sectionNumber":"2","sectionType":"section","heading":"Commencement","content":"2 Commencement\nThis Act comes into operation on the date, or respective dates,\nfixed by the Administrator by notice in the Gazette.\n","sortOrder":1},{"sectionNumber":"3","sectionType":"section","heading":"Objects","content":"3 Objects\nThe main objects of this Act are to enhance:\n(a) the certainty and fairness of retail shop leasing arrangements\nbetween landlords and tenants; and\n(b) the mechanisms available to resolve disputes concerning\nretail shop leases; and\n(c) the certainty and fairness of certain other aspects of business\ntenancies.\n","sortOrder":2},{"sectionNumber":"4","sectionType":"section","heading":"Act binds Crown","content":"4 Act binds Crown\nThis Act binds the Crown in right of the Northern Territory and, to\nthe extent the power of the Legislative Assembly permits, the\nCrown in all its other capacities.\n\nBusiness Tenancies (Fair Dealings) Act 2003 2\n","sortOrder":3},{"sectionNumber":"5","sectionType":"section","heading":"Interpretation","content":"5 Interpretation\n(1) In this Act:\naccountant means:\n(a) a member of the Institute of Chartered Accountants in\nAustralia who holds a current Certificate of Public Practice\nissued by the Institute; or\n(b) a member of CPA Australia Ltd ACN 008 392 452 who holds a\ncurrent Public Practice Certificate in accordance with the\nby-laws of CPA Australia Ltd; or\n(c) a person registered as an auditor under the Corporations\nAct 2001.\nassignor's disclosure statement means a statement mentioned in\nsection 56.\nbusiness lease means:\n(a) a retail shop lease; or\n(b) any other agreement or contract (including a tenancy and\nsublease) under which business premises are let or hired to a\nperson:\n(i) whether or not the right is a right of exclusive\noccupation; and\n(ii) whether the agreement is express or implied; and\n(iii) whether the agreement is oral or in writing, or partly oral\nand partly in writing.\nbusiness premises means:\n(a) a retail shop; or\n(b) premises leased primarily for business purposes, whether or\nnot the premises may be used as a residence under the\nbusiness lease.\nCommissioner means the Commissioner of Business Tenancies\nunder section 12.\nconveyancing agent means a person who is authorised under the\nAgents Licensing Act 1979 to carry out the functions of a\nconveyancing agent as defined in section 5(2)(c) of that Act.\n\nBusiness Tenancies (Fair Dealings) Act 2003 3\nCOVID-19, for Part 1A, see section 11A.\nCOVID-19 public health emergency, for Part 1A, see section 11A.\nEMA declaration, for Part 1A, see section 11A.\nemergency period, for Part 1A, see section 11B(1).\nfitout obligations, in relation to a retail shop, means finishes,\nfixtures, fittings, equipment or services that the landlord is required\nto provide before the tenant enters into possession of the shop.\nkey-money means money to be paid or a benefit to be given:\n(a) by way of a premium, or something similar in nature to a\npremium, where there is no real consideration given for the\npayment or benefit; and\n(b) in consideration of a benefit in connection with the granting,\nrenewal, extension or assignment of a retail shop lease.\nlandlord, in relation to a retail shop lease, means the person who\ngrants or proposes to grant the right to occupy a retail shop under a\nretail shop lease and includes a sublandlord and a landlord's or\nsublandlord's heirs, executors, administrators and assigns.\nlandlord's disclosure statement, see section 19.\nmodification notice, for Part 1A, see section 11B(2).\noccupation arrangement, for Part 1A, see section 11B(2)(b)(ii).\noutgoings, in relation to a retail shop lease, means a landlord's\noutgoings on account of any of the following:\n(a) the expenses directly attributable to the operation,\nmaintenance or repair:\n(i) of the building in which the retail shop is located; or\n(ii) if the retail shop is in a retail shopping centre – of any\nbuilding in the retail shopping centre and of any areas\nused in association with any building in the retail\nshopping centre;\n(b) rates, taxes, levies, premiums or charges payable by the\nlandlord because the landlord is the owner or occupier:\n(i) of the building in which the retail shop is located; and\n\nBusiness Tenancies (Fair Dealings) Act 2003 4\n(ii) if the retail shop is in a retail shopping centre – of any\nbuilding in the retail shopping centre or the land on\nwhich the building is erected.\nparty, in relation to a retail shop lease, means the landlord or the\ntenant under that lease.\nrenewal, in relation to a retail shop lease, see section 11.\nretail shop means premises that are used wholly or predominantly\nfor:\n(a) the sale or hire of goods by retail or the retail provision of\nservices (whether or not in a retail shopping centre); or\n(b) the carrying on of a business in a retail shopping centre; or\n(c) the carrying on of a business of a class or description that is\nprescribed by the Regulations.\nretail shop lease means an agreement under which a person\ngrants or agrees to grant to another person, for valuable\nconsideration, a right of occupation of premises for the use of the\npremises as a retail shop:\n(a) whether or not the right is a right of exclusive occupation; and\n(b) whether the agreement is express or implied; and\n(c) whether the agreement is oral or in writing, or partly oral and\npartly in writing.\nretail shopping centre means a cluster of premises that has all of\nthe following attributes:\n(a) at least 5 of the premises are used wholly or predominantly for\nthe sale or hire of goods by retail or the retail provision of\nservices;\n(b) the premises:\n(i) are all owned by the same person; or\n(ii) all have (or, if leased, would have) the same landlord or\nthe same head landlord; or\n(iii) all comprise lots within a single units plan under the Unit\nTitles Act 1975 or within a single unit title scheme under\nthe Unit Title Schemes Act 2009;\n\nBusiness Tenancies (Fair Dealings) Act 2003 5\n(c) the premises are located:\n(i) in one building; or\n(ii) in 2 or more buildings that are either adjoining or\nseparated only by common areas or other areas owned\nby the owner of the retail shops;\n(d) the cluster of premises is promoted as, or generally regarded\nas constituting, a shopping centre, shopping mall, shopping\ncourt or shopping arcade.\nspecialist retail valuer means a valuer having not less than\n5 years experience in valuing retail shops.\ntenant, in relation to a retail shop, means the person who has the\nright to occupy the retail shop under a retail shop lease and\nincludes a subtenant and a tenant's or subtenant's heirs, executors,\nadministrators and assigns.\ntenant's disclosure statement, see section 21.\n(2) In the interpretation of this Act, a court is to have regard to\naccepted practices and interpretations within the industry\nconcerning the leasing of retail shops or other business premises to\nwhich this Act applies.\n","sortOrder":4},{"sectionNumber":"6","sectionType":"section","heading":"Certain retail shops excluded from operation of Act","content":"6 Certain retail shops excluded from operation of Act\nThis Act (other than Part 13) does not apply to any of the following\nretail shops:\n(a) a shop that has a lettable area of 1 000 square metres or\nmore;\n(b) a shop that is used wholly or predominantly for the carrying on\nof a business by the tenant on behalf of the landlord;\n(c) a shop within premises where the principal business carried\non at the premises is the operation of a cinema or bowling\nalley and the shop is operated by the person who operates the\ncinema or bowling alley;\n(d) a shop that is leased to:\n(i) a listed corporation (as defined in section 9 of the\nCorporations Act 2001); or\n(ii) a subsidiary (as defined in section 9 of the Corporations\nAct 2001) of a listed corporation; or\n\nBusiness Tenancies (Fair Dealings) Act 2003 6\n(iii) a body corporate whose securities are listed on a\nfinancial market outside Australia and the external\nterritories that is a member of the World Federation of\nExchanges; or\n(iv) a subsidiary (as defined in section 9 of the Corporations\nAct 2001) of a body corporate mentioned in\nsubparagraph (iii);\n(e) premises of a class or description prescribed by the\nRegulations to be exempt from this Act.\n","sortOrder":5},{"sectionNumber":"7","sectionType":"section","heading":"Leases to which Act does not apply","content":"7 Leases to which Act does not apply\n(1) This Act (other than Part 13) does not apply to any of the following\nretail shop leases:\n(a) leases for a term of less than 6 months, where there is no right\nfor the tenant to extend the lease (whether by means of an\noption to extend or renew the lease or otherwise);\n(b) leases for a term of 25 years or more (with the term of a lease\ntaken to include any term for which the lease may be\nextended or renewed at the option of the tenant);\n(c) leases entered into before the commencement of this section;\n(d) leases entered into under an option that was granted, or an\nagreement that was made, before the commencement of this\nsection;\n(e) a lease of a class or description prescribed by the Regulations\nto be exempt from this Act or a provision of this Act.\n(2) This Act (other than Part 13) does not apply to:\n(a) a lease mentioned in this section that is assigned to another\nperson after the commencement of this section; or\n(b) a holding over by the tenant after the end of the term of a\nlease mentioned in subsection (1)(c).\n(3) For subsection (1)(a), a provision of a lease that provides for\nholding over by the tenant at the end of the term of the lease is not\ntaken to confer a right on the tenant to extend the lease if it\noperates, in effect, at the discretion of the landlord.\n(4) Despite this section:\n(a) if the term of a retail shop lease is less than 6 months; and\n\nBusiness Tenancies (Fair Dealings) Act 2003 7\n(b) the tenant is continuously in possession of the retail shop for\n6 months or more under the lease because of the lease being\nrenewed one or more times or being continued (or both);\nthis Act applies to the lease on and from the day on which the\ntenant has continuously been in possession of the retail shop for\n","sortOrder":6},{"sectionNumber":"8","sectionType":"section","heading":"Exemptions from Act","content":"8 Exemptions from Act\nThe Regulations may exempt from the operation of this Act or a\nprovision of this Act:\n(a) a specified person, retail shop lease or retail shop; or\n(b) a specified class of persons, retail shop leases or retail shops;\neither unconditionally or subject to conditions.\n","sortOrder":7},{"sectionNumber":"9","sectionType":"section","heading":"Act overrides retail shop leases","content":"9 Act overrides retail shop leases\n(1) This Act operates despite the provisions of a retail shop lease.\n(2) A provision of a retail shop lease is void to the extent that the\nprovision is inconsistent with a provision of this Act.\n(3) A provision of an agreement or arrangement between the parties to\na retail shop lease is void to the extent that the provision would be\nvoid if it were in the lease.\n","sortOrder":8},{"sectionNumber":"10","sectionType":"section","heading":"When lease is entered into","content":"10 When lease is entered into\n(1) For this Act, a retail shop lease is taken to have been entered into\nwhen a person:\n(a) enters into possession of the retail shop as tenant under the\nlease; or\n(b) begins to pay rent as tenant under the lease;\nwhichever happens first.\n(2) Despite subsection (1), if both parties execute the retail shop lease\nbefore the tenant enters into possession under the lease or begins\nto pay rent under the lease, the lease is taken to have been entered\ninto as soon as both parties have executed the lease.\n\nBusiness Tenancies (Fair Dealings) Act 2003 8\n","sortOrder":9},{"sectionNumber":"11","sectionType":"section","heading":"Meaning of renewal of lease","content":"11 Meaning of renewal of lease\n(1) A reference in this Act to the renewal of a retail shop lease is a\nreference to the renewal of the lease:\n(a) under an option granted under the lease for a further term; or\n(b) under an agreement to renew the lease for a further term\nentered into by all the parties to the lease.\n(2) If:\n(a) after a retail shop lease expires, there is a break in the\ntenant's possession of the retail shop; and\n(b) the tenant resumes possession of the retail shop for a further\nterm (whether or not on the same terms and conditions as\nunder the expired lease);\nthe resumption of possession of the retail shop is, for this Act, taken\nnot to be a renewal of the expired lease and is instead taken to be\nentering into a new lease.\n","sortOrder":10},{"sectionNumber":"11A","sectionType":"section","heading":"Definitions","content":"11A Definitions\nCOVID-19 means the Coronavirus disease named \"COVID-19\" by\nthe World Health Organization.\nCOVID-19 public health emergency means:\n(a) the public health emergency initially declared by notice entitled\n\"Declaration of Public Health Emergency\" dated\n","sortOrder":11},{"sectionNumber":"18","sectionType":"section","heading":"March 2020 and published in Gazette S10 of","content":"18 March 2020 and published in Gazette S10 of\n18 March 2020; and\n(b) if an extension of that declaration, or a subsequent\ndeclaration, is made – that public health emergency as\nextended or re-declared.\nEMA declaration means any of the following:\n(a) a declaration under section 18 of the Emergency Management\nAct 2013 that an emergency situation exists in relation to\nCOVID-19;\n\nBusiness Tenancies (Fair Dealings) Act 2003 9\n(b) a declaration of a state of emergency under section 19 of the\nEmergency Management Act 2013 in relation to COVID-19;\n(c) a declaration of a state of disaster under section 21 of the\nEmergency Management Act 2013 in relation to COVID-19.\nemergency period, see section 11B(1).\nmodification notice, see section 11B(2).\noccupation arrangement, see section 11B(2)(b)(ii).\n","sortOrder":12},{"sectionNumber":"11B","sectionType":"section","heading":"Minister's power in emergency period","content":"11B Minister's power in emergency period\n(1) Subsection (2) has effect during the following periods (the\nemergency period):\n(a) while the COVID-19 public health emergency is declared\nunder section 48 of the Public and Environmental Health\nAct 2011;\n(b) while an EMA declaration is in force.\n(2) The Minister may, by Gazette notice (a modification notice), do\nany or all of the following:\n(a) suspend or modify all or part of this Act and regulations made\nunder it;\n(b) make provisions to regulate the following:\n(i) a business premises or a business lease to which this\nAct applies;\n(ii) an arrangement (an occupation arrangement) for the\noccupation of premises for business purposes that is an\narrangement to which this Act, but for this section, does\nnot apply.\n(3) To avoid doubt:\n(a) without limiting subsection (2)(a), that subsection extends to\nsetting aside all or part of sections 6 to 8, and any regulations\nmade under those sections, as the Minister considers\nappropriate; and\n\nBusiness Tenancies (Fair Dealings) Act 2003 10\n(b) without limiting subsection (2)(b), that subsection empowers\nthe Minister to make provisions:\n(i) in relation to aspects of business leases or occupation\narrangements to which this Act does not otherwise\napply; and\n(ii) in relation to matters ancillary to business premises,\nbusiness leases or occupation arrangements, such as\nlimitations or other modifications regarding the awarding\nof costs in court or tribunal proceedings hearing and\ndetermining disputes.\n(4) A modification notice may apply to any of the following:\n(a) a specified person, business lease or business premises;\n(b) a specified occupation arrangement;\n(c) a specified class of person, business lease or business\npremises;\n(d) a specified class of occupation arrangement;\n(e) all business leases.\n(5) Without limiting subsection (2), a modification notice may require\nthat a landlord must engage in a minimum period, not longer than\n30 business days, of good faith negotiation with a tenant before the\nlandlord issues a notice to quit premises.\n(6) A modification notice may, by reference, incorporate in whole or in\npart, an Act, subordinate instrument or other document as in force\nat a particular time or from time to time.\n(7) A modification notice has effect for the period specified in the\nnotice, which may be any period during the emergency period.\nNote for subsection 7\nSection 11G provides for ongoing effect of certain aspects of a modification\nnotice.\n(8) The Minister must table a modification notice in the Legislative\nAssembly on the next sitting day after it is published in the Gazette.\n","sortOrder":13},{"sectionNumber":"11C","sectionType":"section","heading":"Notice overrides business leases and other arrangements","content":"11C Notice overrides business leases and other arrangements\n(1) A modification notice operates despite the provisions of a business\nlease or an occupation arrangement.\n\nBusiness Tenancies (Fair Dealings) Act 2003 11\n(2) A provision of a business lease or occupation arrangement is, for\nthe period during which a modification notice is in force, set aside to\nthe extent that the provision is inconsistent with a provision of the\nnotice.\n(3) A provision of an agreement or arrangement between the parties to\na business lease or occupation arrangement is set aside to the\nextent that the provision would be set aside if it were in the lease or\narrangement.\n","sortOrder":14},{"sectionNumber":"11D","sectionType":"section","heading":"Effect of modification notice","content":"11D Effect of modification notice\nThis Act must be applied with any modifications made by a\nmodification notice as if the Act had been altered in that way.\n","sortOrder":15},{"sectionNumber":"11E","sectionType":"section","heading":"Interaction with Law of Property Act 2000","content":"11E Interaction with Law of Property Act 2000\n(1) Subsection (2) has effect if:\n(a) a modification notice sets aside all or part of section 6, 7 or 8\nor a regulation made under any of those sections; and\n(b) as a result, an occupation arrangement that was excluded\nfrom the operation of this Act immediately before the notice\ncame into effect became subject to this Act.\n(2) Section 114 of the Law of Property Act 2000 applies in relation to\nthe occupation arrangement while the arrangement is subject to this\nAct.\n(3) Subsection (4) applies in relation to a breach of a term or condition\nof an occupation arrangement that is subject to this Act if the\nbreach occurs after the commencement of this section.\n(4) Costs and expenses recoverable by a lessor in accordance with\nsection 140 of the Law of Property Act 2000 do not include legal\ncosts in proceedings commenced during the emergency period.\n(5) Subsection (6) applies if:\n(a) a business lease is for a period of 3 months or more; and\n(b) a modification notice requires that the landlord engage in\nnegotiations with a tenant for a minimum period, as mentioned\nin section 11B(5), before a notice to quit premises can be\nissued.\n\nBusiness Tenancies (Fair Dealings) Act 2003 12\n(6) A time for giving notice under Part 8, Division 5 of the Law of\nProperty Act 2000 is extended by the same period as that required\nfor the negotiations.\n(7) Section 152 of the Law of Property Act 2000 does not apply in\nrelation to a lease that ends during the emergency period unless, at\nthe date of commencement of this section:\n(a) a demand has been made and notice has been given in\nwriting to a person for delivery of possession of premises as\nmentioned in section 152(1)(a) of that Act; or\n(b) a person has given a notice of intention to quit premises as\nmentioned in section 152(1)(b) of that Act.\n","sortOrder":16},{"sectionNumber":"11F","sectionType":"section","heading":"Acquisition on just terms","content":"11F Acquisition on just terms\nIf the operation of a modification notice would, apart from this\nsection, result in an acquisition of property from a person otherwise\nthan on just terms:\n(a) the person is entitled to receive from the Territory the\ncompensation necessary to ensure the acquisition is on just\nterms; and\n(b) a court of competent jurisdiction may decide the amount of\ncompensation or make the orders it considers necessary to\nensure the acquisition is on just terms.\n","sortOrder":17},{"sectionNumber":"11G","sectionType":"section","heading":"Continuing effect of notice","content":"11G Continuing effect of notice\n(1) Despite the expiry or revocation of a modification notice, any time\nperiod set by the notice that has not expired continues in effect until\nthe time period expires.\nExample for subsection (1)\nThis Act sets a time period of 30 days for a thing to be done. A modification\nnotice modifies that time period to 120 days. After 60 days the modification\nnotice expires. The time for doing the thing still has 60 days to run, despite the\nexpiry of the notice.\n(2) If a modification notice expires or is revoked, on the expiry of the\ntime period as set by the notice and continued in effect by\nsubsection (1), the original time period applicable under this Act is\nrestored in effect.\nExample for subsection (2)\nIn the example for subsection (1), after the 120 day period as modified by the\nmodification notice has expired, the time period reverts to the 30 day period set\nby this Act.\n\nBusiness Tenancies (Fair Dealings) Act 2003 13\n(3) If a modification notice makes provision in relation to costs of\nproceedings in a court or tribunal, the provision continues to apply\nto proceedings that had commenced during the emergency period\nbut were not completed before the end of the emergency period.\n","sortOrder":18},{"sectionNumber":"11H","sectionType":"section","heading":"Disallowance by Legislative Assembly","content":"11H Disallowance by Legislative Assembly\n(1) A modification notice is subject to disallowance by a resolution of\nthe Legislative Assembly passed within 3 sitting days after the\nnotice has been tabled in the Assembly under section 11B(8).\n(2) If a resolution disallows the modification notice or provisions of it,\nthe disallowance has, subject to subsection (3), the same effect as\na revocation of the notice or provisions.\n(3) If a provision of a disallowed notice (the disallowed provision)\namended or set aside a provision of this Act or the Regulations in\nforce immediately before the making of the disallowed provision,\nthe disallowance revives the other provision from the date of the\ndisallowance as if the disallowed provision had not been made.\n","sortOrder":19},{"sectionNumber":"12","sectionType":"section","heading":"Commissioner of Business Tenancies","content":"12 Commissioner of Business Tenancies\n(1) The Commissioner of Consumer Affairs as defined in section 4(1)\nof the Consumer Affairs and Fair Trading Act 1990 is the\nCommissioner of Business Tenancies, except during the period of\nan appointment under subsection (2).\n(2) The Minister may, by Gazette notice, appoint a person to be the\nCommissioner of Business Tenancies for a period of not more than\n3 years specified in the notice.\n(3) The Commissioner has the following functions:\n(a) investigating and researching matters affecting the interests of\nparties to retail shop leases;\n(b) publishing reports and information relating to retail shop\nleases;\n(c) providing information to the public about this Act and retail\nshop leases;\n(d) investigating suspected infringements of this Act or the\nRegulations and taking appropriate action to ensure the\nenforcement of this Act and the Regulations;\n\nBusiness Tenancies (Fair Dealings) Act 2003 14\n(e) reporting to the Minister on questions referred to the\nCommissioner by the Minister and other questions of\nimportance affecting the administration of this Act;\n(f) producing model retail shop leases for viewing or sale;\n(g) other functions conferred on the Commissioner under this or\nany other Act.\n(4) The Commissioner has the powers necessary to enable him or her\nto carry out his or her functions or exercise his or her powers under\nthis or any other Act.\n","sortOrder":20},{"sectionNumber":"13","sectionType":"section","heading":"Delegation by Commissioner","content":"13 Delegation by Commissioner\nThe Commissioner may, in writing, delegate to a specified person\nor a person from time to time holding, acting in or performing the\nduties of a specified office, designation or position any of his or her\npowers and functions under this Act, other than this power of\ndelegation.\n","sortOrder":21},{"sectionNumber":"14","sectionType":"section","heading":"Annual report","content":"14 Annual report\n(1) The Commissioner must, on or before 31 October in each year,\nprepare and forward to the Minister a report on the administration of\nthis Act for the year ending on the previous 30 June.\n(2) The Minister must, within 6 sitting days of the Legislative Assembly\nafter receiving a report under subsection (1), lay a copy of the\nreport before the Assembly.\n(3) A report under subsection (1) may be included in a report prepared\nby the Commissioner under the Consumer Affairs and Fair Trading\nAct 1990.\n(4) If a report under subsection (1) is included in a report prepared by\nthe Commissioner under the Consumer Affairs and Fair Trading\nAct 1990, subsection (2) does not apply to the report.\n","sortOrder":22},{"sectionNumber":"15","sectionType":"section","heading":"Protection from liability","content":"15 Protection from liability\n(1) This section applies to a person who is or has been:\n(a) the Commissioner; or\n(b) a delegate of the Commissioner; or\n(c) a person authorised by the Commissioner.\n\nBusiness Tenancies (Fair Dealings) Act 2003 15\n(2) The person is not civilly or criminally liable for an act done or\nomitted to be done by the person in good faith in the exercise or\npurported exercise of a power, or the performance or purported\nperformance of a function, under this Act.\n(3) Subsection (2) does not affect any liability the Territory would, apart\nfrom that subsection, have for the act or omission.\n","sortOrder":23},{"sectionNumber":"16","sectionType":"section","heading":"Commissioner is enforcement agency for Fines and Penalties","content":"16 Commissioner is enforcement agency for Fines and Penalties\n(Recovery) Act 2001\nThe Commissioner is an enforcement agency for the Fines and\nPenalties (Recovery) Act 2001.\n","sortOrder":24},{"sectionNumber":"Part 3","sectionType":"part","heading":"Rights and duties before retail shop lease","content":"Part 3 Rights and duties before retail shop lease\nentered into\n","sortOrder":25},{"sectionNumber":"17","sectionType":"section","heading":"Copy of retail shop lease to be provided at negotiation stage","content":"17 Copy of retail shop lease to be provided at negotiation stage\nA person must not, as landlord or on behalf of the landlord, offer to\nenter into a retail shop lease, invite an offer to enter into a retail\nshop lease or indicate by written or broadcast advertisement that a\nretail shop is for lease, unless:\n(a) the person has in his or her possession a copy of the\nproposed retail shop lease (in written form, but not necessarily\nincluding particulars of the tenant, the rent or the term of the\nlease) available for inspection by a prospective tenant; and\n(b) the person makes a copy of the proposed lease available to a\nprospective tenant as soon as the person enters into\nnegotiations with the prospective tenant concerning the lease.\n18 Right to compensation for pre-lease misrepresentations\n(1) A party to a retail shop lease is liable to pay another party to the\nlease (the injured party) reasonable compensation for damage\nsuffered by the injured party that is attributable to the injured party's\nentering into the lease as a result of:\n(a) a false or misleading statement; or\n(b) a false or misleading representation;\nknowingly made by the party or a person acting under the party's\nauthority.\n\nBusiness Tenancies (Fair Dealings) Act 2003 16\n(2) The giving of a landlord's disclosure statement to a prospective\ntenant under a retail shop lease is taken to be the making of a\nrepresentation by the landlord to the tenant as to the information in\nthe disclosure statement.\n(3) The making of a representation by a prospective tenant in a\ntenant's disclosure statement given to a prospective landlord under\na retail shop lease:\n(a) that the prospective tenant has sought independent advice; or\n(b) as to statements or representations relied on by the\nprospective tenant in entering the lease;\nis taken to be the making of a representation by a tenant to the\n(4) This section extends to apply to a statement or representation\nmade before the commencement of this section.\n","sortOrder":26},{"sectionNumber":"19","sectionType":"section","heading":"Tenant to be given landlord's disclosure statement","content":"19 Tenant to be given landlord's disclosure statement\n(1) Unless subsection (6) applies, the landlord must ensure that the\ntenant is given a landlord's disclosure statement for a retail shop\nlease at least 7 days before the retail shop lease is entered into by\nthe tenant.\n(2) A landlord's disclosure statement is a written statement that\ncontains or has attached the information or material specified in the\nform prescribed by the Regulations (but only to the extent that is\nrelevant to the lease concerned).\n(3) The layout of a landlord's disclosure statement is not required to\ncomply with the layout of the prescribed form.\n(4) Despite subsection (3), a landlord's disclosure statement is\ncomplete for the purposes of this section only if it contains or has\nattached the information or material that the prescribed form\nspecifies is to be provided by the tenant.\n(5) If a retail shop lease is entered into by way of the renewal of a\nlease, a written statement (a landlord's disclosure update) that\nupdates the provisions of an earlier landlord's disclosure statement\ngiven to the tenant is, in conjunction with that earlier landlord's\ndisclosure statement, taken to be a landlord's disclosure statement\ngiven at the time the landlord's disclosure update is given.\n\nBusiness Tenancies (Fair Dealings) Act 2003 17\n(6) The time limit imposed by subsection (1) does not apply if a legal\npractitioner, who is not acting for the landlord, certifies in writing\nthat he or she has, at the request of the prospective tenant,\nexplained to the prospective tenant:\n(a) the effect of this section; and\n(b) that the giving of the certificate will result in a waiver of that\ntime limit.\n","sortOrder":27},{"sectionNumber":"20","sectionType":"section","heading":"Tenant may terminate for landlord's failure to disclose","content":"20 Tenant may terminate for landlord's failure to disclose\n(1) A tenant may terminate a retail shop lease by notice in writing to the\nlandlord at any time within 6 months after the lease was entered\ninto if:\n(a) the tenant has not been given a landlord's disclosure\nstatement under section 19(1); or\n(b) subject to subsection (2), the landlord's disclosure statement\ngiven to the tenant is incomplete or contains information that\nat the time it was given was materially false or misleading.\n(2) A tenant cannot terminate the lease under subsection (1)(b) if:\n(a) the landlord has acted honestly and reasonably and ought\nreasonably to be excused for giving an incomplete landlord's\ndisclosure statement or information that is materially false or\nmisleading; and\n(b) the tenant is in substantially as good a position as the tenant\nwould have been if the landlord's disclosure statement had\nbeen complete or the information had not been materially false\nor misleading.\n(3) The termination of a lease under this section does not affect any\nright, privilege, obligation or liability acquired, accrued or incurred\nunder the lease in respect of any period before its termination.\n","sortOrder":28},{"sectionNumber":"21","sectionType":"section","heading":"Tenant's disclosure statement","content":"21 Tenant's disclosure statement\n(1) Not later than 7 days after receiving a landlord's disclosure\nstatement, or within a further period to which the prospective\nlandlord agrees, the tenant under a retail shop lease must give the\nlandlord a tenant's disclosure statement.\n\nBusiness Tenancies (Fair Dealings) Act 2003 18\n(2) A tenant's disclosure statement is a statement in writing that\ncontains or has attached the information or material specified in the\nform prescribed by the Regulations (but only to the extent that it is\nrelevant to the lease concerned).\n(3) The layout of the tenant's disclosure statement is not required to\ncomply with the layout of the prescribed form.\n(4) If a lease is entered into by way of the renewal of a lease, a written\nstatement (a tenant's disclosure update) that updates the\nprovisions of an earlier tenant's disclosure statement given to the\nlandlord is, in conjunction with that earlier tenant's disclosure\nstatement, taken to be the tenant's disclosure statement given at\nthe time the tenant's disclosure update is given.\n","sortOrder":29},{"sectionNumber":"22","sectionType":"section","heading":"Tenant not required to pay undisclosed contributions","content":"22 Tenant not required to pay undisclosed contributions\nA provision of a retail shop lease that requires the tenant to pay or\ncontribute towards the cost of any finishes, fixtures, fittings,\nequipment or services is void unless the liability to make the\npayment or contribution is disclosed in a landlord's disclosure\nstatement given to the tenant in accordance with this Part.\n","sortOrder":30},{"sectionNumber":"23","sectionType":"section","heading":"Lease preparation costs","content":"23 Lease preparation costs\n(1) A tenant is not liable to pay an amount to the landlord for legal or\nother expenses incurred by the landlord in connection with the\npreparation of a retail shop lease unless:\n(a) the landlord provides the tenant with a copy of the account\npresented to the landlord for those expenses; and\n(b) the amount of the charges, or the method of calculation of\nthose charges, is included in the landlord's disclosure\nstatement given to the tenant in accordance with this Part.\n(2) Despite a provision of the retail shop lease or another agreement,\nthe tenant is not liable to pay more than a reasonable sum for legal\nor other expenses incurred in connection with the preparation of the\nretail shop lease by the landlord.\n(3) This section does not preclude any right the landlord may have to\nrecover, from a person who enters into and then withdraws from\nnegotiations with the landlord in respect of the retail shop lease, a\nreasonable sum for legal or other expenses incurred in connection\nwith the preparation of the lease by the landlord.\n\nBusiness Tenancies (Fair Dealings) Act 2003 19\n(4) In this section:\nother expenses includes expenses relating to:\n(a) the negotiation, preparation and execution of the retail shop\nlease; and\n(b) the obtaining of any necessary consents from mortgagees or\ngovernment Agencies; and\n(c) any surveys or compliance with a requirement made by or\nunder an Act.\n","sortOrder":31},{"sectionNumber":"24","sectionType":"section","heading":"Key-money prohibited","content":"24 Key-money prohibited\naccept key-money in connection with the granting of a retail shop\nlease.\ngranting of the lease.\n(3) If a person contravenes this section then, whether or not the person\nis found guilty of an offence against subsection (1), the tenant is\nentitled to recover from the landlord as a debt:\n(a) a payment made by; or\n(b) the value of any benefit conferred by;\nthe tenant and accepted by or on behalf of the landlord in\ncontravention of this section.\n(4) This section does not prevent a landlord:\n(a) requiring payment by the tenant of a reasonable sum for legal\nor other expenses incurred in connection with the preparation\nand entering into of the retail shop lease; or\n(c) securing performance of the tenant's obligations under the\nretail shop lease by requiring the provision of a bond, security\ndeposit or a guarantee from the tenant or another person\n(such as a requirement that the directors of a company that is\nthe tenant guarantee performance of the company's\nobligations under the lease); or\n\nBusiness Tenancies (Fair Dealings) Act 2003 20\n(d) seeking and accepting, from a purchaser of the business,\npayment for goodwill of a business (but only to the extent that\nthe goodwill is attributable to the conduct of the business by\nthe landlord); or\n(e) seeking and accepting payment for plant, equipment, fixtures\nor fittings that are sold by the landlord to the tenant in\nconnection with the granting of the lease; or\n(f) seeking and accepting payment for the grant of a franchise in\nconnection with the granting of the retail shop lease.\n","sortOrder":32},{"sectionNumber":"25","sectionType":"section","heading":"Time limit for registration of leases and provision to tenants","content":"25 Time limit for registration of leases and provision to tenants\n(1) A retail shop lease is taken to include provisions to the following\n(a) if the lease is not to be registered, the landlord must provide\nthe tenant with an executed copy of the stamped lease within\none month after the lease is returned to the landlord or the\nlandlord's legal practitioner or agent following payment of\nstamp duty on the lease;\n(b) if the lease is to be registered, the landlord:\n(i) must lodge the lease for registration within one month\nafter the lease is returned to the landlord or the\nlandlord's legal practitioner or agent following payment\nof stamp duty on the lease; and\n(ii) must provide the tenant with an executed copy of the\nstamped and registered lease within one month after the\nlease is returned to the landlord or the landlord's legal\npractitioner or agent following registration of the lease;\n(c) the periods specified in paragraphs (a) and (b) are to be\nextended for delays attributable to the need to obtain consent\nfrom a head landlord or mortgagee.\n(2) This section does not affect the operation of the Stamp Duty\nAct 1978 or the Land Title Act 2000.\n(3) In this section:\nregistered means registered under the Land Title Act 2000.\n\nBusiness Tenancies (Fair Dealings) Act 2003 21\n","sortOrder":33},{"sectionNumber":"26","sectionType":"section","heading":"Minimum 5 year term","content":"26 Minimum 5 year term\n(1) The term for which a retail shop lease is entered into, together with\na further term or terms provided for by an agreement or option for\nthe acquisition by the tenant of a further term as an extension or\nrenewal of the lease, is not to be less than 5 years.\n(2) For subsection (1), an agreement or option is not taken into account\nif it is entered into or conferred after the retail shop lease is entered\ninto.\n(3) The validity of a retail shop lease is not affected if the lease is\nentered into in contravention of this section, but the term of the\nlease is extended by the period necessary to prevent the lease\ncontravening this section.\n(4) This section does not apply to a retail shop lease if a legal\npractitioner, or accountant, who is not acting for the landlord,\ncertifies in writing that he or she has, at the request of the\nprospective tenant, explained to the prospective tenant:\n(a) the effect of subsections (1), (2) and (3); and\n(b) that the giving of the certificate will result in this section not\napplying to the lease.\n(5) This section does not apply to a lease that results from the renewal\nof an earlier lease in accordance with an option conferred on the\ntenant, only if:\n(a) there was no break in the entitlement of the tenant to\npossession of the retail shop; and\n(b) the option was granted by that earlier lease or by an\nagreement entered into before or at the same time as that\nearlier lease was entered into.\n(6) This section does not apply to a lease to the extent that its\napplication would be inconsistent with the terms of a head lease\nunder which the landlord holds the retail shop.\n\nBusiness Tenancies (Fair Dealings) Act 2003 22\n","sortOrder":34},{"sectionNumber":"27","sectionType":"section","heading":"No payment of rent etc. when landlord's fitout not completed","content":"27 No payment of rent etc. when landlord's fitout not completed\n(1) This section applies to a retail shop lease if:\n(a) the liability of the tenant to pay rent under the lease begins on\nthe tenant entering into possession of the retail shop (whether\nor not the tenant is required to enter into possession by a\nspecified date); and\n(b) the landlord has fitout obligations under the lease.\n(2) A retail shop lease to which this section applies is taken to provide\nthat:\n(a) the tenant is not liable to pay rent, or another amount payable\nunder the lease by the tenant (such as an amount payable in\nrespect of outgoings), in respect of a period before the\nlandlord has substantially complied with the landlord's fitout\nobligations; and\n(b) the landlord is not entitled to deny the tenant possession of\nthe retail shop merely because the landlord has not complied\nwith the landlord's fitout obligations under the lease.\n","sortOrder":35},{"sectionNumber":"28","sectionType":"section","heading":"Rent reviews generally","content":"28 Rent reviews generally\n(1) If a retail shop lease provides for a review of the rent payable under\nthe lease or under a renewal of the lease, the lease is to state:\n(a) when the reviews are to take place; and\n(b) the basis or formula on which the reviews are to be made.\n(2) The basis or formula on which a rent review is to be made is to be\none of the following:\n(a) a fixed percentage;\n(b) an independently published index of prices or wages;\n(c) a fixed annual amount;\n(d) the current market rent of the retail shop lease;\n(e) a basis or formula prescribed by the Regulations.\n\nBusiness Tenancies (Fair Dealings) Act 2003 23\n(3) A provision of a retail shop lease is void to the extent that it\nprecludes or prevents a reduction of rent or limits the extent to\nwhich rent may be reduced.\n(4) Subsection (3) does not apply to a provision that uses:\n(a) a basis or formula mentioned in subsection (2)(a), (b) or (c); or\n(b) a basis or formula prescribed under subsection (2)(e) that is\nalso prescribed as a basis or formula to which subsection (3)\ndoes not apply.\n(5) A rent review is to be conducted as early as practicable within the\ntime provided by the lease, and if the landlord has not initiated the\nreview within 90 days after the end of that time the tenant may\ninitiate the review.\n(6) A rent review provision in a retail shop lease is void if the lease\ndoes not specify how the review is to be made.\n(7) If a provision in a retail shop lease that provides for a review of the\nrent payable under the lease does not comply with subsection (2),\nthe rent is to be:\n(a) as agreed between the landlord and tenant; or\n(b) if there is no agreement within 30 days after the landlord gives\nthe tenant, or the tenant gives the landlord, a written notice\nspecifying an amount of rent for the purposes of the review –\nthe amount determined as the current market rent of the retail\npremises by a specialist retail valuer appointed by the\nCommissioner.\n(8) The landlord and the tenant are to pay the costs of the valuation\nunder subsection (7) in equal shares.\n","sortOrder":36},{"sectionNumber":"29","sectionType":"section","heading":"Reviews of current market rent","content":"29 Reviews of current market rent\n(1) A retail shop lease that provides for rent to be changed to current\nmarket rent, or that provides an option to renew or extend the lease\nat current market rent, is taken to include provisions to the following\n(a) the current market rent is the rent that would reasonably be\nexpected to be paid for the shop, determined on an effective\nrent basis, having regard to the following matters:\n(i) the provisions of the lease;\n\nBusiness Tenancies (Fair Dealings) Act 2003 24\n(ii) the rent that would reasonably be expected to be paid\nfor the shop, in a free and open market between a willing\nlandlord and a willing tenant in an arm's length\ntransaction, if it were unoccupied and offered for renting\nfor the same or a substantially similar use to which the\nshop may be put under the lease;\n(iii) the gross rent, less the landlord's outgoings payable by\nthe tenant;\n(iv) rent concessions and other benefits that are frequently\nor generally offered to prospective tenants of unoccupied\nretail shops;\n(b) for paragraph (a), the current market rent is not to take into\naccount the value of goodwill created by the tenant's\noccupation or the value of the tenant's fixtures and fittings on\nthe retail shop premises;\n(c) if the landlord and the tenant do not agree as to what the\nactual amount of that rent is to be, the amount of the rent is to\nbe determined by a valuation carried out by:\n(i) a specialist retail valuer appointed by agreement\nbetween the parties to the lease; or\n(ii) if the parties cannot agree as to who is to be appointed\nunder subparagraph (i) – a specialist retail valuer\nappointed by the Commissioner;\n(d) in determining the amount of current market rent, a specialist\nretail valuer must take into account the matters set out in\nparagraph (a);\n(e) the landlord must, not later than 14 days after a request by a\nspecialist retail valuer appointed under paragraph (c), supply\nthe valuer with all relevant information about leases for retail\nshops situated in the same building or retail shopping centre\nto assist the valuer to determine the current market rent;\n(f) a valuation for paragraph (c) is to be in writing, to contain\ndetailed reasons for the specialist retail valuer's determination\nand to specify the matters to which the valuer had regard in\nmaking his or her determination;\n(g) the parties to the lease are to pay in equal shares the costs of\na valuation by a specialist retail valuer.\n\nBusiness Tenancies (Fair Dealings) Act 2003 25\n(2) A specialist retail valuer appointed under subsection (1)(c) must\nmake the valuation of current market rent not later than one month\nafter accepting the appointment.\n(3) A specialist retail valuer may apply under Part 11 for an order that a\nlandlord comply with a request mentioned in subsection (1)(e) to\nsupply relevant information about leases for retail shops situated in\nthe same building or retail shopping centre to assist the valuer to\ndetermine the rent.\n","sortOrder":37},{"sectionNumber":"30","sectionType":"section","heading":"Tenant may have current market rent determined early","content":"30 Tenant may have current market rent determined early\n(1) A retail shop lease that provides an option to renew or extend the\nlease at current market rent is taken to include provisions to the\nfollowing effect:\n(a) the tenant is entitled to request a determination of the current\nmarket rent at any time within the period that begins 6 months\nbefore, and ends 3 months before, the last day on which the\noption may be exercised under the lease, but may not make\nthe request if the landlord and the tenant have already agreed\nas to the actual amount of that rent;\n(b) the tenant makes the request by giving to the landlord notice\nin writing of the request;\n(c) if the tenant makes the request:\n(i) the amount of the current market rent is to be\ndetermined (as at the time of the request) in accordance\nwith the provisions of a lease mentioned in section 29;\nand\n(ii) the period within which the tenant must exercise the\noption is varied so that the last day on which the option\nmay be exercised is 21 days after the determination of\nrent is made and notified to the tenant in writing or the\nlast day of the term of the lease, whichever is the earlier;\n(d) the parties agree that the amount of rent determined under\nparagraph (c) is the current market rent for the purposes of the\nexercise of the option, even though it may be a determination\nof the current market rent as at some earlier time;\n(e) if the tenant renews or extends the lease after the\ndetermination of current market rent – the parties to the lease\nare to pay in equal shares the costs of the determination;\n\nBusiness Tenancies (Fair Dealings) Act 2003 26\n(f) if the tenant does not renew or extend the lease after the\ndetermination of current market rent – the tenant must pay the\ncosts of the determination.\n(2) If a retail shop lease is for a term of 12 months or less, the periods\nof 6 months and 3 months in subsection (1) are shortened to\n3 months and 30 days respectively.\n","sortOrder":38},{"sectionNumber":"31","sectionType":"section","heading":"Proper use by valuer of information received","content":"31 Proper use by valuer of information received\n(1) A specialist retail valuer who is supplied with information by a\nlandlord or a tenant for the purpose of determining under section 29\nthe amount of rent under a retail shop lease must not:\n(a) use or permit the use of the information for any purpose other\nthan to determine the current market rent for the lease\nconcerned; or\n(b) communicate or disclose the information to another person or\npermit the information to be communicated or disclosed to\nanother person.\n(2) Subsection (1) does not prevent the specialist retail valuer using,\ncommunicating or disclosing information, or permitting another\nperson to do so, in any of the following circumstances:\n(a) in accordance with a consent of both the landlord and the\ntenant;\n(b) to a court or the Commissioner;\n(c) if the use, communication or disclosure occurs:\n(i) for the purpose of specifying the matters to be taken into\nconsideration in making a determination under\nsection 29; and\n(ii) in a way that does not disclose information identifying a\nparticular lease or tenant or information relating to a\ntenant's business.\n(3) A specialist retail valuer who contravenes subsection (1) is, whether\nor not the person is found guilty of an offence against that\nsubsection, liable to pay compensation to the landlord or tenant for\nloss or damage suffered by the landlord or tenant as a result of the\ninformation being used, communicated or disclosed in\ncontravention of subsection (1).\n\nBusiness Tenancies (Fair Dealings) Act 2003 27\n(4) The amount of the compensation mentioned in subsection (3) is:\n(a) as agreed between the valuer and the person seeking\ncompensation; or\n(b) if the valuer and the person cannot agree on the amount:\n(i) as determined under Part 11 following an application by\nthe person seeking compensation; or\n(ii) if no determination is able to be made under Part 11 – as\ndetermined by a court having the appropriate jurisdiction\nspecified in that Part.\n","sortOrder":39},{"sectionNumber":"32","sectionType":"section","heading":"Turnover rent","content":"32 Turnover rent\n(1) For a provision of a retail shop lease that relates to the\ndetermination of rent or a component of rent by reference to\nturnover, turnover does not include any of the following:\n(a) the amount of losses incurred in the resale or disposal of\nmerchandise reasonably and properly purchased from\ncustomers as trade-ins in the usual course of business;\n(b) the amount of deposits and instalments received on account\nof lay-bys, hire purchase or credit sales that have been\nrefunded to customers;\n(c) the amount of a refund on a transaction if the proceeds of the\ntransaction have been included as part of turnover;\n(d) the amount of service, finance or interest charges payable to a\nfinancier in connection with provision of credit to customers\n(other than commissions on credit or store cards);\n(e) the price of merchandise exchanged between shops of the\ntenant if the exchange is made solely for the convenient\noperation of the business of the tenant and not for the purpose\nof concluding a sale made at or from the shop to which the\nlease relates;\n(f) the price of merchandise returns to shippers, wholesalers or\nmanufacturers;\n(g) the proceeds of sale of the tenant's fixtures and fittings after\ntheir use in the conduct of business at or from the retail shop\nto which the lease relates;\n(h) the amount of discounts allowed to customers in the normal\ncourse of business;\n\nBusiness Tenancies (Fair Dealings) Act 2003 28\n(i) the amount of uncollected credit accounts that are written off;\n(j) the net amount paid or payable by the tenant on account of a\ntax imposed at the point of retail sale or hire of goods or\nservices;\n(k) the amount of delivery charges;\n(l) the amount received from the sale of lottery tickets and similar\ntickets (other than commission on those sales).\n(2) The lease is taken to provide for an underpayment or overpayment\nof rent (resulting from actual turnover differing from projected or\npresumed turnover) to be adjusted within one month after the\ntenant requests the landlord in writing for the adjustment and\nprovides the landlord with information that the landlord may\nreasonably require to make the adjustment.\n(3) The tenant may make a request for an adjustment mentioned in\nsubsection (2) only once in the first 12 months of the lease term\nand, after that, only at intervals of not less than 12 months following\nthe first request for an adjustment under the lease.\n(4) Subsection (3) does not prevent the lease providing for, or the\nparties otherwise agreeing to, more frequent adjustments than are\nprovided for by this section.\n(5) In this section:\nturnover includes gross takings, gross receipts, gross income and\nsimilar concepts.\n","sortOrder":40},{"sectionNumber":"33","sectionType":"section","heading":"Special rent – cost of fitout","content":"33 Special rent – cost of fitout\nThis Act does not prevent a retail shop lease from providing for the\npayment of a special rent (in addition to any other rent) to cover the\ncost of fitout, fixtures, fittings and equipment installed or provided\nby the landlord at the landlord's expense.\n","sortOrder":41},{"sectionNumber":"34","sectionType":"section","heading":"Rent and other costs associated with other land not","content":"34 Rent and other costs associated with other land not\nrecoverable from tenant\nthe tenant to pay an amount in respect of rent, and other costs,\nassociated with unrelated land.\n\nBusiness Tenancies (Fair Dealings) Act 2003 29\n(2) In this section:\nunrelated land means land other than:\n(a) land on which is situated the building or retail shopping centre\nof which the retail shop forms part; or\n(b) land of the landlord used by or for the benefit of the tenants:\n(i) conducting business in that building or retail shopping\ncentre; or\n(ii) in connection with trading in that building or retail\nshopping centre.\n","sortOrder":42},{"sectionNumber":"35","sectionType":"section","heading":"Sinking fund for major repairs and maintenance","content":"35 Sinking fund for major repairs and maintenance\nIf a retail shop lease provides for the establishment of a sinking\nfund to fund provision for major items of repair or maintenance, the\nlease is taken to include provisions to the following effect:\n(a) an amount paid by the tenant in respect of the landlord's\noutgoings on account of those major items of repair or\nmaintenance is to be paid into the sinking fund;\n(b) so much of the balance standing to the credit of the sinking\nfund as remains unexpended from time to time for a purpose\nfor which the sinking fund was established is to be held by the\nlandlord in an account bearing interest;\n(c) amounts paid by the tenant for credit of the sinking fund, and\nthe net interest earned by the landlord on the sinking fund, are\nnot to be applied by the landlord for a purpose other than\npayment of outgoings for which the sinking fund was\nestablished;\n(d) the landlord is liable to contribute to the sinking fund a\ndeficiency attributable to a failure by the landlord, or a\npredecessor in title of the landlord, to comply with\nparagraph (c);\n(e) the major items of repair or maintenance for which contribution\nto the sinking fund may be required by the tenant are limited to\nrepair or maintenance of:\n(i) a building, or plant and equipment of a building, in which\nthe retail shop is situated; or\n\nBusiness Tenancies (Fair Dealings) Act 2003 30\n(ii) if the retail shop lease relates to a retail shop situated in\na retail shopping centre – the buildings, plant and\nequipment and areas used in association with the retail\nshopping centre;\n(f) the tenant is not liable to contribute an amount to the sinking\nfund that is greater than the maximum amount permitted\nunder the Act;\n(g) the landlord must keep full and accurate accounts of all money\nreceived or held by the landlord in respect of the sinking fund;\n(h) the landlord must give the tenant, not later than 3 months after\nthe end of each accounting period of the landlord during the\nterm of the lease, a sinking fund statement containing details\nof expenditure during the period from the fund on items for\nwhich the tenant is required to contribute;\n(i) the landlord must provide with the statement mentioned in\nparagraph (h) a report on the statement prepared by a person\nwho holds a public practice certificate issued by an\naccountants body;\n(j) a sinking fund statement provided by a landlord to a tenant is\nto be prepared in accordance with the relevant principles and\ndisclosure requirements of applicable accounting standards.\n","sortOrder":43},{"sectionNumber":"36","sectionType":"section","heading":"Limits on sinking funds","content":"36 Limits on sinking funds\n(1) This section applies to the landlord under a retail shop lease that\nprovides for the establishment of a sinking fund to fund provision for\nmajor items of repair or maintenance.\n(2) The landlord must not establish more than one sinking fund at any\none time in respect of retail shop leases for retail shops situated in\nthe same building or retail shopping centre.\n(3) The landlord must not require or accept contributions to the sinking\nfund in respect of a retail shop situated in a retail shopping centre\nthat total an amount that is more than 5% of the total of the\nlandlord's estimated outgoings for the year concerned in respect of\nthe retail shopping centre.\n\nBusiness Tenancies (Fair Dealings) Act 2003 31\n(4) The landlord must not require or accept contributions by a tenant to\nthe sinking fund if the amount outstanding to the credit of the\nsinking fund is more than 250 000 monetary units.\n","sortOrder":44},{"sectionNumber":"37","sectionType":"section","heading":"Repayment from sinking fund after destruction etc. of building","content":"37 Repayment from sinking fund after destruction etc. of building\n(1) This section applies to the landlord under a retail shop lease of a\nretail shop that provides for the establishment of a sinking fund to\nfund provision for major items of repair or maintenance.\n(2) If the building or retail shopping centre in which the retail shop is\nlocated is destroyed or demolished or the retail shopping centre\nceases to operate, the landlord must repay to each tenant liable to\ncontribute to the sinking fund the amount payable to the tenant\ndetermined in accordance with subsection (3).\n(3) The amount payable to the tenant is that proportion of the total\namount outstanding to the credit of the sinking fund that is equal to\nthe proportion that the lettable area of the tenant's retail shop bears\nto the total lettable area of all the shops in respect of which\ncontributions are required to be made to the fund.\n(4) In this section:\nlandlord and tenant mean the persons who were the landlord and\ntenant, respectively, under a retail shop lease immediately before\nthe destruction or demolition of the building or immediately before\nthe retail shopping centre ceased to operate.\n","sortOrder":45},{"sectionNumber":"38","sectionType":"section","heading":"Recovery of outgoings from tenant","content":"38 Recovery of outgoings from tenant\n(1) The tenant under a retail shop lease is not liable to pay an amount\nto the landlord in respect of outgoings except in accordance with\nprovisions of the lease that specify:\n(a) the outgoings that are to be regarded as recoverable; and\n(b) how the amount of those outgoings will be determined and\nhow they will be apportioned to the tenant; and\n(c) how those outgoings or any part of them may be recovered by\nthe landlord from the tenant.\n(2) Costs associated with the advertising or promotion of a retail shop\nor retail shopping centre, or of a business carried on there, are not\noutgoings for subsection (1).\n\nBusiness Tenancies (Fair Dealings) Act 2003 32\n","sortOrder":46},{"sectionNumber":"39","sectionType":"section","heading":"Landlord to provide estimates and expenditure statement of","content":"39 Landlord to provide estimates and expenditure statement of\noutgoings\n(a) the landlord must give the tenant a written estimate of the\noutgoings for which the tenant is liable under the lease to\nmake a payment to the landlord;\n(b) the estimate of outgoings is to be given to the tenant:\n(i) in respect of each accounting period of the landlord\nduring the term of the lease; and\n(ii) before the lease is entered into and, during the term of\nthe lease, at least one month before the commencement\nof the accounting period concerned;\n(c) the landlord must make a written expenditure statement\navailable for examination by the tenant, detailing all\nexpenditure by the landlord on account of outgoings in respect\nof which the tenant is liable under the lease to make a\npayment to the landlord;\n(d) the expenditure statement is to be made available at least\ntwice in each of the landlord's accounting periods during the\nterm of the lease, being:\n(i) once in relation to expenditure during the first 6 months\nof each of the accounting periods; and\n(ii) once in relation to expenditure during the second\n6 months of each of the accounting periods;\nwithin one month after the end of the 6 month period to which\nthe expenditure statement relates;\n(e) for paragraphs (a) and (c), the relevant outgoings are to be\nitemised in the manner specified in the prescribed form of\nlandlord's disclosure statement in relation to such outgoings.\n","sortOrder":47},{"sectionNumber":"40","sectionType":"section","heading":"Landlord to give statement and report on outgoings","content":"40 Landlord to give statement and report on outgoings\n(a) the landlord must give the tenant a written statement (an\noutgoings statement) that details all expenditure by the\nlandlord in each accounting period of the landlord during the\n\nBusiness Tenancies (Fair Dealings) Act 2003 33\nterm of the lease on account of outgoings to which the tenant\nis required to contribute;\n(b) if the shop is in a retail shopping centre – the outgoings\nstatement is to include a statement of the current gross\nlettable area of the shopping centre and details of each\nmaterial change in that gross lettable area during the period to\nwhich the outgoings statement relates;\n(c) the outgoings statement is to be prepared in accordance with\nrelevant principles and disclosure requirements of applicable\naccounting standards;\n(d) the outgoings statement is to be given to the tenant within\n3 months after the end of the accounting period to which it\nrelates;\n(e) the outgoings statement is to be accompanied by a report (an\nauditor's report) on the statement prepared by a person who\nholds a public practice certificate issued by an accountants\nbody;\n(f) the auditor's report is to include a statement by the auditor as\nto:\n(i) whether or not the outgoings statement correctly states\nthe expenditure by the landlord during the accounting\nperiod concerned for outgoings to which the tenant is\nrequired to contribute; and\n(ii) whether or not the total amount of estimated outgoings\nfor that period, as shown in the estimate of outgoings\ngiven to the tenant, was more than the total actual\nexpenditure by the landlord for outgoings during that\nperiod;\n(g) the outgoings statement may be a composite statement (that\nis, it may relate to more than one tenant) so long as each\ntenant to whom it relates is able to ascertain from the\nstatement the information required by paragraph (a) that is\nrelevant to that tenant;\n(h) the outgoings statement need not be accompanied by an\nauditor's report if:\n(i) the statement does not relate to outgoings other than\nwater, sewerage and drainage rates and charges,\ncouncil rates and charges and insurance; and\n\nBusiness Tenancies (Fair Dealings) Act 2003 34\n(ii) the statement is accompanied by copies of\nassessments, invoices, receipts or other proof of\npayment in respect of all expenditure by the landlord as\nmentioned in paragraph (a).\n","sortOrder":48},{"sectionNumber":"41","sectionType":"section","heading":"Adjustment of contributions to outgoings","content":"41 Adjustment of contributions to outgoings\n(a) there is to be an adjustment between the landlord and the\ntenant for each accounting period of the landlord to take\naccount of an under-payment or over-payment by the tenant in\nrespect of outgoings during the period;\n(b) the adjustment is to take place within one month after the\nlandlord gives the tenant the outgoings statement mentioned\nin section 40 for the period concerned and is in any event to\ntake place within 4 months after the end of that period;\n(c) the adjustment is to be calculated on the basis of the\ndifference between:\n(i) the total amount of outgoings for which the tenant\ncontributed (that is, the estimated total expenditure by\nthe landlord on outgoings during the period concerned);\nand\n(ii) the total amount actually expended by the landlord for\nthose outgoings during that period, but taking into\naccount only expenditure properly and reasonably\nincurred by the landlord in payment of those outgoings;\n(d) contribution by the tenant towards repairs and maintenance is\nnot taken into account for the purposes of the adjustment to\nthe extent that the contribution is required to be paid into a\nsinking fund as mentioned in section 35;\n(e) expenditure by the landlord in respect of repairs and\nmaintenance is not taken into account for the purposes of the\nadjustment to the extent that the expenditure is in respect of\ncontributions required to be paid into a sinking fund as\nmentioned in section 35.\n\nBusiness Tenancies (Fair Dealings) Act 2003 35\n","sortOrder":49},{"sectionNumber":"42","sectionType":"section","heading":"Non-specific outgoings contribution limited by ratio of lettable","content":"42 Non-specific outgoings contribution limited by ratio of lettable\narea\n(1) A tenant under a retail shop lease in a retail shopping centre:\n(a) is not liable to contribute towards a non-specific outgoing of\nthe landlord (that is, an outgoing not specifically referable to a\nparticular shop in the retail shopping centre) unless the shop\nis one of the shops to which the outgoing is referable; and\n(b) is not liable to contribute an amount that is more than an\namount calculated by multiplying the total amount of that\noutgoing by the ratio of the lettable area of the shop to the\ntotal of the lettable areas of all the retail shops to which the\noutgoing is referable.\n(2) An outgoing is referable to a retail shop if the shop is one of the\nshops that enjoys or shares the benefit resulting from the outgoing.\n","sortOrder":50},{"sectionNumber":"43","sectionType":"section","heading":"Capital costs etc. not recoverable from tenant","content":"43 Capital costs etc. not recoverable from tenant\nthe tenant to pay an amount in respect of the capital costs of:\n(a) the building in which the retail shop is located; or\n(b) if the retail shop is in a retail shopping centre – a building in\nthe retail shopping centre; or\n(c) any areas used in association with a building mentioned in\nparagraph (a) or (b).\n(2) A provision in a retail shop lease is void to the extent that it requires\nthe tenant to pay an amount in respect of the capital costs of plant\nin a building or area mentioned in subsection (1).\n(3) A provision in a retail shop lease is void to the extent that it requires\nthe tenant to make a contribution to a sinking fund to provide for\ncapital works.\n","sortOrder":51},{"sectionNumber":"44","sectionType":"section","heading":"Depreciation not recoverable from tenant","content":"44 Depreciation not recoverable from tenant\nA provision in a retail shop lease is void to the extent that it requires\nthe tenant to pay an amount in respect of depreciation.\n\nBusiness Tenancies (Fair Dealings) Act 2003 36\n","sortOrder":52},{"sectionNumber":"45","sectionType":"section","heading":"Interest etc. on landlord's borrowings not recoverable from","content":"45 Interest etc. on landlord's borrowings not recoverable from\ntenant\nA provision in a retail shop lease is void to the extent that it requires\nthe tenant to pay an amount in respect of interest, or other charges,\nincurred by the landlord in respect of amounts borrowed by the\n","sortOrder":53},{"sectionNumber":"Part 5","sectionType":"part","heading":"Restrictions on actions affecting rights under","content":"Part 5 Restrictions on actions affecting rights under\nretail shop lease\n","sortOrder":54},{"sectionNumber":"46","sectionType":"section","heading":"Tenant to be given notice of alterations and refurbishment","content":"46 Tenant to be given notice of alterations and refurbishment\nA retail shop lease is taken to provide that the landlord must not\nbegin to carry out an alteration or refurbishment of the building or\nretail shopping centre of which the retail shop forms part that is\nlikely to adversely affect the business of the tenant, unless:\n(a) the landlord has notified the tenant in writing of the proposed\nalteration or refurbishment at least 2 months before it is\ncommenced; or\n(b) the alteration or refurbishment is necessary because of an\nemergency and the landlord has given the tenant the\nmaximum period of notice that is reasonably practicable in the\ncircumstances.\n","sortOrder":55},{"sectionNumber":"47","sectionType":"section","heading":"Tenant to be compensated for disturbance","content":"47 Tenant to be compensated for disturbance\n(1) A retail shop lease is taken to provide that if the landlord:\n(a) inhibits access of the tenant to the shop in a substantial\nmanner; or\n(b) takes an action that would inhibit or alter, to a substantial\nextent, the flow of customers to the shop; or\n(c) unreasonably takes an action that causes significant\ndisruption of, or has a significant adverse effect on, trading of\nthe tenant in the shop; or\n(d) fails to take all reasonable steps to prevent or put a stop to\nanything that causes significant disruption of, or which has a\nsignificant adverse effect on, trading of the tenant in the shop\nand that is attributable to causes within the landlord's control;\nor\n(e) fails to rectify a breakdown of plant or equipment under the\nlandlord's care or maintenance; or\n\nBusiness Tenancies (Fair Dealings) Act 2003 37\n(f) if the retail shop to which the lease relates is within a retail\nshopping centre – fails to adequately clean, maintain or repair\nthe retail shopping centre, including common areas;\nand the landlord does not rectify the matter as soon as reasonably\npracticable after being requested in writing by the tenant to do so,\nthe landlord is liable to pay the tenant reasonable compensation for\nloss or damage, other than nominal damage, suffered by the tenant\nas a consequence.\n(2) In determining whether a landlord has acted unreasonably for\nsubsection (1)(c), due consideration is to be given to whether the\nlandlord has acted in accordance with recognised shopping centre\nmanagement practices.\n(3) A retail shop lease may include a provision preventing or limiting a\nclaim for compensation under the provisions implied by this section\nin respect of a particular occurrence if the likelihood of the\noccurrence was specifically drawn to the attention of the tenant in\nwriting before the lease was entered into.\n(4) The provisions implied by this section do not apply to an action\ntaken by the landlord:\n(a) as a reasonable response to an emergency situation; or\n(b) in compliance with a duty imposed by or under an Act or\nresulting from a requirement imposed by a statutory authority\nor local government council acting under the authority of an\nAct.\n","sortOrder":56},{"sectionNumber":"48","sectionType":"section","heading":"Relocation","content":"48 Relocation\nIf a retail shop lease contains a provision that enables the business\nof the tenant to be relocated, the lease is taken to include\nprovisions to the following effect:\n(a) the tenant's business cannot be required to be relocated\nunless and until the landlord has provided the tenant with\ndetails of a proposed refurbishment, redevelopment or\nextension sufficient to indicate a genuine proposal that:\n(i) is to be carried out within a reasonably practicable time\nafter relocation of the tenant's business; and\n(ii) cannot be carried out practicably without vacant\npossession of the tenant's shop;\n(b) the tenant's business cannot be required to be relocated\nunless the landlord has given the tenant at least 3 months\n\nBusiness Tenancies (Fair Dealings) Act 2003 38\nwritten notice (relocation notice) of relocation and the notice\ngives details of an alternative shop to be made available to the\ntenant within the retail shopping centre;\n(c) the tenant is entitled to be offered a new lease of the\nalternative shop on the same terms and conditions as the\nexisting lease, except that the term of the new lease is to be\nfor the remainder of the term of the existing lease;\n(d) for paragraph (c), the rent for the alternative shop is to be the\nsame as the rent for the existing retail shop, adjusted to take\ninto account the difference in the commercial values of the\nexisting retail shop and the alternative shop at the time of\nrelocation;\n(e) if a relocation notice is given to the tenant, the tenant may\nterminate the lease within one month after the relocation\nnotice is given by giving written notice of termination to the\nlandlord, in which case the lease is terminated 3 months after\nthe relocation notice was given, unless the parties agree that it\nis to terminate at some other time;\n(f) if the tenant does not give a notice of termination as\nmentioned in paragraph (e), the tenant is taken to have\naccepted the offer of a lease as mentioned in paragraph (c),\nunless the parties have agreed to a lease on some other\nterms;\n(g) the tenant is entitled to payment by the landlord of the tenant's\nreasonable costs of the relocation (including but not limited to\ncosts incurred by the tenant in dismantling and reinstalling\nfixtures and fittings) and legal costs in connection with the\nrelocation.\n","sortOrder":57},{"sectionNumber":"49","sectionType":"section","heading":"Demolition","content":"49 Demolition\n(1) If a retail shop lease provides for termination of the lease on the\ngrounds of the proposed demolition of the building of which the\nretail shop forms part, the lease is taken to include provisions to the\nfollowing effect:\n(a) the lease cannot be terminated on that ground unless and until\nthe landlord has provided the tenant with details of the\nproposed demolition sufficient to indicate a genuine proposal\nto demolish that building within a reasonably practicable time\nafter the lease is to be terminated;\n(b) the lease cannot be terminated by the landlord on that ground\nwithout at least 6 months written notice of termination;\n\nBusiness Tenancies (Fair Dealings) Act 2003 39\n(c) if notice of termination on that ground is given to the tenant,\nthe tenant may terminate the lease by giving the landlord not\nless than 7 days written notice of termination at a time within\n6 months before the termination date notified by the landlord.\n(2) If a retail shop lease is for a term of 12 months or less, the period of\n6 months mentioned in subsection (1)(b) and (c) is shortened in\neach case to 3 months.\n(3) If:\n(a) a retail shop lease is terminated on the grounds of the\nproposed demolition of the building of which the retail shop\nforms part; and\n(b) the demolition of the building is not carried out within a\nreasonably practicable time after the termination date notified\nby the landlord;\nthe landlord is liable to pay the tenant reasonable compensation for\ndamage suffered by the tenant as a consequence of the early\ntermination of the lease, unless the landlord establishes that at the\ntime notice of termination was given by the landlord there was a\ngenuine proposal to demolish the premises within that time.\n(4) If a retail shop lease is terminated on the grounds of the proposed\ndemolition of the building of which the retail shop forms part, the\nlandlord is liable to pay the tenant compensation for the fitout of the\nretail shop if the tenant is required under the lease to fit out the\nretail shop, whether or not the demolition of the building is carried\nout.\n(5) For this section, the demolition of the building of which a retail shop\nforms part includes a substantial repair, renovation or\nreconstruction of the building that cannot be carried out practicably\nwithout vacant possession of the shop.\n","sortOrder":58},{"sectionNumber":"50","sectionType":"section","heading":"Damaged premises","content":"50 Damaged premises\n(1) A retail shop lease is taken to provide for the following if the shop or\nthe building of which the shop forms part is damaged:\n(a) the tenant is not liable to pay rent, or an amount payable to\nthe landlord in respect of outgoings or other charges, that is\nattributable to a period during which the shop cannot be used\nunder the lease or is inaccessible due to the damage;\n(b) if the shop is still usable under the lease but its usability is\ndiminished due to the damage, the tenant's liability for rent\nand an amount in respect of outgoings attributable to a period\n\nBusiness Tenancies (Fair Dealings) Act 2003 40\nduring which usability is diminished is reduced in proportion to\nthe reduction in usability caused by the damage;\n(c) if the landlord notifies the tenant in writing that the landlord\nconsiders that the damage is such as to make its repair\nimpracticable or undesirable, the landlord or the tenant may\nterminate the lease by giving not less than 7 days notice in\nwriting to the other and no compensation is payable in respect\nof the termination;\n(d) if the landlord fails to repair the damage within a reasonable\ntime after the tenant requests the landlord in writing to do so,\nthe tenant may terminate the lease by giving not less than\n7 days notice in writing to the landlord;\n(e) paragraphs (a) to (d) do not affect a right of the landlord to\nrecover damages from the tenant in respect of damage or\ndestruction to which those paragraphs apply.\n(2) A provision in a retail shop lease is void to the extent that it limits\nthe liability of a party to the lease to pay compensation to another\nparty to the lease in respect of damage to the shop or the building\nof which the shop forms part.\n(3) This section does not prevent the parties to a retail shop lease from\nterminating the lease by agreement if the shop or the building of\nwhich it forms part is damaged or destroyed.\n","sortOrder":59},{"sectionNumber":"51","sectionType":"section","heading":"Refurbishment and refitting","content":"51 Refurbishment and refitting\nA provision in a retail shop lease requiring the tenant to refurbish or\nrefit the shop is void unless it gives the details of the required\nrefurbishment or refitting that is necessary to indicate generally the\nnature, extent and timing of the required refurbishment or refitting.\n","sortOrder":60},{"sectionNumber":"52","sectionType":"section","heading":"Employment restriction","content":"52 Employment restriction\n(1) A provision in a retail shop lease is void to the extent that it limits or\nhas the effect of limiting the tenant's right to employ persons of the\ntenant's own choosing.\n(2) Subsection (1) does not prevent the lease containing one or more\nof the following provisions:\n(a) a provision specifying minimum standards of competence and\nbehaviour for persons employed in the shop or other persons\n(such as contractors) doing work in the shop;\n(b) a provision prohibiting work from being carried out on\nspecified items of the landlord's property;\n\nBusiness Tenancies (Fair Dealings) Act 2003 41\n(c) a provision requiring the tenant to comply with the\nrequirements of an industrial award, industrial agreement or\nenterprise agreement (such as a construction site agreement)\naffecting a retail shopping centre in which the shop is situated.\n","sortOrder":61},{"sectionNumber":"53","sectionType":"section","heading":"Circumstances when consent to assignment may be withheld","content":"53 Circumstances when consent to assignment may be withheld\n(1) The landlord is entitled to withhold consent to the assignment of a\nretail shop lease in any of the following circumstances (and is not\nentitled to withhold that consent in any other circumstances):\n(a) if the proposed assignee proposes to change the use to which\nthe shop is put;\n(b) if the proposed assignee does not have the financial\nresources or retailing skills that will enable the proposed\nassignee to fulfil all the obligations of the lease;\n(c) if the tenant has not complied with the provisions of the lease\nmentioned in section 56 and, if applicable, section 57.\n(2) This section does not preclude a right of the landlord to require\npayment of a reasonable sum in respect of legal or other expenses\nincurred in connection with the consent, so long as the landlord has\nsubstantiated those expenses to the tenant at the request of the\ntenant.\n","sortOrder":62},{"sectionNumber":"54","sectionType":"section","heading":"Key-money on assignment prohibited","content":"54 Key-money on assignment prohibited\naccept key-money in connection with the granting of consent to the\nassignment of a retail shop lease.\ngranting of consent to the assignment of the lease.\n(3) If a person contravenes subsection (1) then, whether or not the\nperson is found guilty of an offence against that subsection, the\ntenant is entitled to recover from the landlord as a debt:\n(a) a payment made by; or\n(b) the value of any benefit conferred by;\n\nBusiness Tenancies (Fair Dealings) Act 2003 42\nthe tenant or assignee and accepted by or on behalf of the landlord\nin contravention of this section.\n(4) This section does not prevent a landlord:\n(a) requiring payment by the tenant or assignee of a reasonable\nsum for legal or other expenses incurred in connection with\nthe assignment of the lease; or\n(c) securing performance of the assignee's obligations under the\nlease by requiring the provision of a bond, security deposit or\na guarantee from the assignee or another person (such as a\nrequirement that the directors of a company that is the\nassignee guarantee performance of the company's obligations\nunder the lease); or\n(d) seeking and accepting, from a purchaser of the business,\npayment for goodwill of a business, but only to the extent that\nthe goodwill is attributable to the conduct of the business by\nthe landlord; or\n(e) seeking and accepting payment for plant, equipment, fixtures\nor fittings that are sold by the landlord to the tenant or\nassignee in connection with the granting of consent to the\nassignment of the lease; or\n(f) seeking and accepting payment for the grant of a franchise in\nconnection with the granting of consent to the assignment of\nthe lease.\n","sortOrder":63},{"sectionNumber":"55","sectionType":"section","heading":"Obtaining consent to assignment","content":"55 Obtaining consent to assignment\n(a) a request for the landlord's consent to an assignment of the\nlease is to be made in writing;\n(b) the landlord must deal expeditiously with a request for consent\nto an assignment of the lease;\n(c) the landlord is taken to have consented to the request for\nconsent to an assignment of the lease if:\n(i) the tenant has complied with the provisions of the lease\nmentioned in section 56(a) and, if applicable,\nsection 57(c); and\n\nBusiness Tenancies (Fair Dealings) Act 2003 43\n(ii) the landlord has not, within 42 days after the request\nwas made, given notice in writing to the tenant either\nconsenting or withholding consent.\n","sortOrder":64},{"sectionNumber":"56","sectionType":"section","heading":"Information to be provided to proposed assignee and landlord","content":"56 Information to be provided to proposed assignee and landlord\n(a) before requesting the consent of the landlord to a proposed\nassignment of the lease, the tenant must provide to the\nproposed assignee:\n(i) a copy of the most recent landlord's disclosure\nstatement given to the tenant in respect of the lease; and\n(ii) details of changes that have occurred in respect of the\ninformation contained in the landlord's disclosure\nstatement since it was given to the tenant (being\nchanges of which the tenant is aware or could\nreasonably be expected to be aware);\n(b) the tenant may provide the proposed assignee with an\nassignor's disclosure statement;\n(c) if the assignment is in connection with the lease of a retail\nshop that will continue to be an ongoing business – the tenant\nmust provide the landlord and proposed assignee with an\nassignor's disclosure statement;\n(d) an assignor's disclosure statement is a statement that\ncontains or has attached the information or material specified\nin the form prescribed by the Regulations, but the layout of the\nstatement need not comply with that of the prescribed form;\n(e) to enable the tenant to comply with paragraph (a):\n(i) the tenant is entitled to request the landlord to provide\nthe tenant with a copy of the relevant disclosure\nstatement; and\n(ii) the landlord must comply with the request within 14 days\nafter it is made.\n\nBusiness Tenancies (Fair Dealings) Act 2003 44\n","sortOrder":65},{"sectionNumber":"57","sectionType":"section","heading":"Information about financial standing of proposed assignee","content":"57 Information about financial standing of proposed assignee\n(a) the tenant may, at the time of making the request for the\nlandlord's consent to the assignment of the lease, provide the\nlandlord with information concerning the financial standing and\nbusiness experience of the proposed assignee;\n(b) on receipt of a request for his or her consent to an assignment\nof the lease, the landlord may, if no information concerning the\nfinancial standing and business experience of the proposed\nassignee is provided by the tenant, request the tenant to\nprovide him or her with that information;\n(c) the tenant must provide the landlord with information under\nparagraph (b) that the landlord reasonably requires.\n","sortOrder":66},{"sectionNumber":"58","sectionType":"section","heading":"Protection of assignors and guarantors","content":"58 Protection of assignors and guarantors\nA former tenant who has assigned a retail shop lease in respect of\na retail shop that was to continue to be an ongoing business, and\nany guarantor or covenantor of the former tenant, is not liable to\npay to the landlord money in respect of amounts payable by the\nassignee if:\n(a) the former tenant gave the landlord and the proposed\nassignee a copy of the assignor's disclosure statement in\naccordance with section 56(c); and\n(b) the disclosure statement does not contain any information that\nis false, misleading or materially incomplete.\n","sortOrder":67},{"sectionNumber":"59","sectionType":"section","heading":"Landlord may reserve right to refuse sublease, mortgage etc.","content":"59 Landlord may reserve right to refuse sublease, mortgage etc.\nA retail shop lease may contain a provision that allows the landlord\nto refuse in the landlord's absolute discretion:\n(a) consent to the grant of a sublease, licence or concession in\nrespect of the whole or a part of the shop; or\n(b) consent to the tenant parting with possession of the whole or a\npart of the shop; or\n(c) consent to the tenant mortgaging or otherwise charging or\nencumbering the tenant's estate or interest in the lease.\n\nPart 7 Renewal and extension of retail shop leases\nBusiness Tenancies (Fair Dealings) Act 2003 45\nPart 7 Renewal and extension of retail shop leases\n60 Notice to tenant of landlord's intentions at end of lease\n(1) Not less than 6 months and not more than 12 months before the\nexpiry of a lease, the landlord must by written notice to the tenant:\n(a) offer the tenant a renewal or extension of the lease on terms\n(including terms as to rent) specified in the notice; or\n(b) inform the tenant that the landlord does not propose to offer\nthe tenant a renewal or extension of the lease.\n(2) An offer made under subsection (1)(a) cannot be revoked until after\none month after it is made.\n(3) If the landlord fails to give a notice to the tenant under\nsubsection (1), the term of the lease is extended until the end of\n6 months after the landlord gives the notice, but only if the tenant\nrequests that extension by notice in writing to the landlord given\nbefore the lease would otherwise have expired.\n(4) During any extension of the lease under subsection (3), the tenant\nmay terminate the lease by giving not less than one months notice\nof termination in writing to the landlord.\n(5) This section does not apply to a lease:\n(a) containing an option to renew or extend the lease; or\n(b) that is the subject of an agreement for the renewal or\nextension of the lease.\n(6) If a retail shop lease is for a term of 12 months or less, the periods\nof 12 months and 6 months mentioned in subsection (1) and (3) are\nshortened to 6 months and 3 months respectively.\n","sortOrder":68},{"sectionNumber":"61","sectionType":"section","heading":"Key-money for renewal or extension prohibited","content":"61 Key-money for renewal or extension prohibited\naccept key-money in connection with the renewal or extension of a\nretail shop lease.\nrenewal or extension of the lease.\n\nBusiness Tenancies (Fair Dealings) Act 2003 46\n(3) If a person contravenes subsection (1), the tenant is entitled to\nrecover from the landlord as a debt:\n(a) a payment made; or\n(b) the value of a benefit conferred by the tenant and accepted;\nby or on behalf of the landlord in contravention of this section,\nwhether or not the person is found guilty of an offence against that\nsubsection.\n(4) This section does not prevent a landlord from:\n(a) requiring payment by the tenant of a reasonable sum in\nrespect of legal or other expenses incurred in connection with\nthe renewal or extension of the lease; or\n(c) securing performance of the tenant's obligations under the\nrenewed or extended lease by requiring the provision of a\nbond or security deposit or a guarantee from the tenant or\nanother person; or\n(d) seeking and accepting payment for the grant of a franchise in\nconnection with the renewal or extension of the lease.\n","sortOrder":69},{"sectionNumber":"62","sectionType":"section","heading":"Trading hours","content":"62 Trading hours\nA provision in a retail shop lease is void to the extent that it\noperates to require the tenant to trade at a time when trading would\nbe unlawful.\n","sortOrder":70},{"sectionNumber":"63","sectionType":"section","heading":"Security deposits","content":"63 Security deposits\n(1) A retail shop lease is taken to include provisions to the following\n(a) money paid by the tenant to the landlord as security for the\nperformance of the tenant's obligations under the lease is to\nbe held by the landlord on behalf of the tenant:\n(i) in an account mentioned in section 50 of the Agents\nLicensing Act 1979; or\n(ii) in any other interest-bearing account;\n\nBusiness Tenancies (Fair Dealings) Act 2003 47\n(b) if the landlord holds money in accordance with\nparagraph (a)(i) – Part V of the Agents Licensing Act 1979\napplies in relation to that money;\n(c) if the landlord holds money in accordance with\nparagraph (a)(ii):\n(i) the landlord must account to the tenant for interest\nearned on the money but the landlord is entitled to retain\nthe interest and deal with it as money paid by the tenant\nto the landlord to form part of the security deposit\nconcerned; and\n(ii) the landlord is not entitled to unreasonably refuse to\naccept a guarantee from an ADI in satisfaction of a\nrequirement to provide security in the form of a deposit,\nbond or third party guarantee for the performance of the\ntenant's obligations under the lease.\n(2) Subsection (1) does not prevent the landlord appropriating security\nmoneys in accordance with a lawful entitlement to do so.\n","sortOrder":71},{"sectionNumber":"64","sectionType":"section","heading":"Independent legal advice – effect of coercion","content":"64 Independent legal advice – effect of coercion\n(1) A person must not compel the tenant or a prospective tenant under\na retail shop lease to use the services of a legal practitioner,\naccountant or conveyancing agent nominated by the landlord.\n(2) If the tenant or a prospective tenant is compelled to use the\nservices of a legal practitioner, accountant or conveyancing agent\nin contravention of this section, the landlord is liable to pay to the\ntenant the amount of any fees paid by the tenant to the legal\npractitioner, accountant or conveyancing agent for those services.\n(3) If a prospective tenant is compelled to use the services of a legal\npractitioner in contravention of this section for the provision of a\ncertificate mentioned in section 19, the certificate is invalid for of\nsection 19 if the tenant establishes that even though the certificate\nwas given he or she did not understand:\n(a) the effect of section 19; or\n(b) that the giving of the certificate would result in a waiver of the\ntime limit in section 19(1).\n(4) If a prospective tenant is compelled to use the services of a legal\npractitioner or accountant in contravention of this section for the\nprovision of a certificate mentioned in section 26, the certificate is\n\nBusiness Tenancies (Fair Dealings) Act 2003 48\ninvalid for section 26 if the tenant establishes that even though the\ncertificate was given he or she did not understand:\n(a) the effect of section 26(1), (2) or (3); or\n(b) that the giving of the certificate would result in section 26 not\napplying.\n","sortOrder":72},{"sectionNumber":"Part 9","sectionType":"part","heading":"Additional requirements for retail shopping","content":"Part 9 Additional requirements for retail shopping\ncentres\n","sortOrder":73},{"sectionNumber":"65","sectionType":"section","heading":"Part applies only to retail shopping centres","content":"65 Part applies only to retail shopping centres\nThis Part applies only to retail shop leases of shops in retail\nshopping centres and, in respect of those leases, applies in addition\nto the other provisions of this Act.\n","sortOrder":74},{"sectionNumber":"66","sectionType":"section","heading":"Confidentiality of turnover information","content":"66 Confidentiality of turnover information\n(1) If a retail shop lease requires the tenant to provide information to\nthe landlord concerning the turnover of the business of the tenant,\nthe landlord must not disclose or communicate to a person the\ninformation provided by the tenant.\n(2) Subsection (1) does not prevent the landlord communicating or\ndisclosing information provided by the tenant as required by the\nlease if the information is communicated or disclosed:\n(a) with the consent of the tenant; or\n(b) in a document giving aggregate turnover information about a\nretail shopping centre in a manner that does not disclose\ninformation relating to the turnover of an individual tenant's\nbusiness; or\n(c) in compliance with a requirement of a court, the Commissioner\nor a person conducting proceedings under Part 11; or\n(d) in compliance with a requirement made by or under an Act; or\n(e) to the landlord's professional advisers (such as legal or\nfinancial advisers), or to the proper officer of a financial\ninstitution, in good faith, to assist in enabling the landlord to\nobtain financial accommodation; or\n\nBusiness Tenancies (Fair Dealings) Act 2003 49\n(f) in good faith to a prospective purchaser of the retail shop or\nthe building of which it forms part.\n","sortOrder":75},{"sectionNumber":"67","sectionType":"section","heading":"Statistical information to be made available to tenant","content":"67 Statistical information to be made available to tenant\nIf a retail shop lease requires the tenant to pay an amount for\noutgoings on account of expenditure incurred in obtaining statistical\ninformation (such as traffic counts), the lease is taken to include a\nprovision that the landlord must make available to the tenant the\nstatistical information.\n","sortOrder":76},{"sectionNumber":"68","sectionType":"section","heading":"Advertising and promotion requirements","content":"68 Advertising and promotion requirements\nthe tenant to undertake advertising or promotion of the tenant's\nbusiness.\n(2) Subsection (1) does not apply to a provision in a lease that requires\na payment to the landlord for advertising and promotion costs\nincurred or to be incurred by the landlord.\n","sortOrder":77},{"sectionNumber":"69","sectionType":"section","heading":"Marketing plan for advertising and promotion","content":"69 Marketing plan for advertising and promotion\nIf a retail shop lease requires the tenant to pay an amount to the\nlandlord in respect of advertising and promotion costs, the lease is\ntaken to include provisions to the following effect:\n(a) the landlord must, at least one month before the start of each\naccounting period of the landlord, make available to the tenant\na marketing plan that gives details of the landlord's proposed\nexpenditure on advertising and promotion during that\naccounting period;\n(b) if payment to the landlord in respect of advertising and\npromotion costs relates to an opening promotion – the\nlandlord must, at least one month before that opening\npromotion, make available to the tenant details of the\nproposed expenditure on that promotion.\n","sortOrder":78},{"sectionNumber":"70","sectionType":"section","heading":"Availability of advertising and promotion expenditure","content":"70 Availability of advertising and promotion expenditure\nstatement\n(a) the landlord must make a written statement available for\nexamination by a tenant detailing all expenditure by the\nlandlord on account of advertising and promotion costs to\nwhich the tenant is required to contribute under the lease;\n\nBusiness Tenancies (Fair Dealings) Act 2003 50\n(b) the landlord must make the statement available at least twice\nin each of the landlord's accounting periods during the term of\nthe lease, being:\n(i) once in relation to expenditure during the first 6 months\nof each of the accounting periods; and\n(ii) once in relation to expenditure during the second 6\nmonths of each of the accounting periods;\n(c) the statement must be made available within one month after\nthe end of the 6 month period to which it relates.\n","sortOrder":79},{"sectionNumber":"71","sectionType":"section","heading":"Provision of statement on advertising and promotion","content":"71 Provision of statement on advertising and promotion\nexpenditure\n(a) the landlord must give the tenant a written statement (an\nadvertising statement) that details all expenditure by the\nlandlord in each accounting period of the landlord during the\nterm of the lease on account of advertising or promotion costs\nto which the tenant is required to contribute under the lease;\n(b) the advertising statement is to be prepared in accordance with\nrelevant principles and disclosure requirements (in force from\ntime to time) made by the Australian Accounting Standards\nBoard;\n(c) the advertising statement is to be given to the tenant within\n3 months after the end of the accounting period to which it\nrelates;\n(d) the advertising statement is to be accompanied by a report (an\nauditor's report) on the statement prepared by a person who\nholds a public practice certificate issued by an accountants\nbody;\n(e) the auditor's report is to include a statement by the auditor as\nto whether or not the advertising statement correctly states the\nexpenditure by the landlord during the accounting period\nconcerned in respect of advertising or promotion costs to\nwhich the tenant is required to contribute.\n\nBusiness Tenancies (Fair Dealings) Act 2003 51\n","sortOrder":80},{"sectionNumber":"72","sectionType":"section","heading":"Unexpended advertising and promotion contributions carried","content":"72 Unexpended advertising and promotion contributions carried\nforward\nA retail shop lease is taken to include a provision that an amount:\n(a) that is contributed under a retail shop lease by a tenant in the\nshopping centre in respect of advertising or promotion costs of\nthe landlord; and\n(b) that is not spent for the purpose for which it was contributed;\nis to be carried forward by the landlord and applied towards future\nexpenditure on advertising or promotion of the centre.\n","sortOrder":81},{"sectionNumber":"73","sectionType":"section","heading":"Termination for inadequate sales prohibited","content":"73 Termination for inadequate sales prohibited\nA provision in a retail shop lease is void to the extent that it permits\nor otherwise provides for the termination of the lease on the ground\nthat the tenant or the business of the tenant has failed to achieve\nspecified sales or turnover performance.\n","sortOrder":82},{"sectionNumber":"74","sectionType":"section","heading":"Geographical restrictions prohibited","content":"74 Geographical restrictions prohibited\n(1) A provision in a retail shop lease is void to the extent that it has the\neffect of preventing or restricting the tenant from carrying on\nbusiness outside the retail shopping centre, either during the term\nof or after the expiry of the lease.\n(2) This section does not operate to prevent a lease or other\nagreement from containing a provision that prevents the use of the\nname of the retail shopping centre in connection with a business\ncarried on outside the shopping centre.\n","sortOrder":83},{"sectionNumber":"75","sectionType":"section","heading":"Trading hours of retail shopping centre","content":"75 Trading hours of retail shopping centre\n(1) A lease of a retail shop is taken to include a provision to the effect\nthat the landlord is not entitled to change the core trading hours of\nthe retail shopping centre of which the shop forms part except with\nthe approval in writing of the tenants of a majority of the retail shops\nin the shopping centre (whether or not those retail shops are retail\nshops to which this Act applies).\n(2) The initial fixing of trading hours in a new retail shopping centre is\nnot a change to core trading hours and is not affected by\nsubsection (1).\n(3) Subsection (1) does not operate to permit a landlord to ignore the\nrequirements of another agreement, arrangement or understanding\nthat prevents or restricts a change to core trading hours by the\nlandlord in a retail shopping centre.\n\nBusiness Tenancies (Fair Dealings) Act 2003 52\n(4) This section does not prevent a lease providing for the action that\nmay be taken by a landlord in the event of a tenant not trading in\naccordance with core trading hours, including provisions:\n(a) enabling the landlord, as a condition of granting consent to a\ntenant trading outside core trading hours, to require the tenant\nto pay, or pay a contribution towards, the costs of opening the\nretail shopping centre during those extended trading hours; or\n(b) requiring a tenant who trades outside core trading hours to\nmake specified payments or additional payments in respect of\nadvertising and promotional costs for the shopping centre.\n(5) In section:\ncore trading hours, in relation to a retail shopping centre, means\nthe times when retail shops in the shopping centre are required to\nbe open for business, whether the requirement is imposed by or\nunder a lease or by or under some other agreement, arrangement\nor understanding between landlords and the tenants.\n","sortOrder":84},{"sectionNumber":"Part 10","sectionType":"part","heading":"Unconscionable conduct in connection with","content":"Part 10 Unconscionable conduct in connection with\nretail shop lease\n","sortOrder":85},{"sectionNumber":"76","sectionType":"section","heading":"Definitions","content":"76 Definitions\napplicable industry code, see section 51ACA(1) of the\nCompetition and Consumer Act 2010 (Cth).\nindustry code, see section 51ACA(1) of the Competition and\nConsumer Act 2010 (Cth).\n","sortOrder":86},{"sectionNumber":"77","sectionType":"section","heading":"Application of Part","content":"77 Application of Part\n(1) This Part extends to apply to a retail shop lease that was entered\ninto:\n(a) before the commencement of section 7; or\n(b) under an option granted or agreement made before the\ncommencement of section 7;\nbut only if this Act would have applied to the lease if it had been\nentered into after the commencement of section 7.\n(2) This Part does not apply to conduct that occurred before the\ncommencement of this section.\n\nBusiness Tenancies (Fair Dealings) Act 2003 53\n","sortOrder":87},{"sectionNumber":"78","sectionType":"section","heading":"Court may determine claim of unconscionable conduct","content":"78 Court may determine claim of unconscionable conduct\n(1) A landlord or tenant, or former landlord or tenant, who suffers loss\nor damage as a result of unconscionable conduct of another person\nin contravention of section 79 or 80 may apply to a court of\ncompetent jurisdiction to recover the amount of the loss or damage\nfrom the other person.\n(2) In determining whether section 79 or 80 has been contravened:\n(a) the court must not have regard to any circumstances that were\nnot reasonably foreseeable at the time of the alleged\ncontravention; and\n(b) the court may have regard to circumstances existing before\nthe commencement of this section but not to conduct engaged\nin before that commencement.\n(3) If the issue of loss or damage as a result of unconscionable\nconduct of a person in contravention of section 79 or 80 arises in\nconnection with another matter the subject of proceedings in the\ncourt, the court may decide the issue, and in so doing may award\nthe sum it thinks fit.\n","sortOrder":88},{"sectionNumber":"79","sectionType":"section","heading":"Unconscionable conduct of landlord in retail shop lease","content":"79 Unconscionable conduct of landlord in retail shop lease\ntransactions\n(1) A landlord must not, in connection with a retail shop lease, engage\nin conduct that is, in all the circumstances, unconscionable.\n(2) Without limiting the matters to which a court may have regard in\ndetermining whether a landlord has contravened subsection (1), the\ncourt may have regard to the following:\n(a) the relative strengths of the bargaining positions of the\nlandlord and the tenant;\n(b) whether, as a result of conduct engaged in by the landlord, the\ntenant was required to comply with conditions that were not\nreasonably necessary for the protection of the legitimate\ninterests of the landlord;\n(c) whether the tenant was able to understand any documents\nrelating to the lease;\n(d) whether undue influence or pressure was exerted on, or unfair\ntactics were used against, the tenant or a person acting on\nbehalf of the tenant by the landlord or a person acting on\nbehalf of the landlord in relation to the lease;\n\nBusiness Tenancies (Fair Dealings) Act 2003 54\n(e) the amount for which, and the circumstances in which, the\ntenant could have acquired an identical or equivalent lease\nfrom a person other than the landlord;\n(f) the extent to which the landlord's conduct towards the tenant\nwas consistent with the landlord's conduct in similar\ntransactions between the landlord and other similar tenants;\n(g) the requirements of an applicable industry code;\n(h) the requirements of another industry code, if the tenant acted\non the reasonable belief that the landlord would comply with\nthe code;\n(i) the extent to which the landlord was willing to negotiate the\nterms and conditions of any lease with the tenant;\n(j) the extent to which the landlord unreasonably failed to\ndisclose to the tenant:\n(i) intended conduct of the landlord that might affect the\ninterests of the tenant; and\n(ii) risks to the tenant arising from the landlord's intended\nconduct (being risks that the landlord should have\nforeseen would not be apparent to the tenant);\n(k) the extent to which the landlord and the tenant acted in good\nfaith.\n","sortOrder":89},{"sectionNumber":"80","sectionType":"section","heading":"Unconscionable conduct of tenant in retail shop lease","content":"80 Unconscionable conduct of tenant in retail shop lease\ntransactions\n(1) A tenant must not, in connection with a retail shop lease, engage in\nconduct that is, in all the circumstances, unconscionable.\n(2) Without limiting the matters to which the court may have regard in\ndetermining whether a tenant has contravened subsection (1), the\ncourt may have regard to the following:\n(a) the relative strengths of the bargaining positions of the tenant\nand the landlord;\n(b) whether, as a result of conduct engaged in by the tenant, the\nlandlord was required to comply with conditions that were not\nreasonably necessary for the protection of the legitimate\ninterests of the tenant;\n(c) whether the landlord was able to understand any documents\nrelating to the lease;\n\nBusiness Tenancies (Fair Dealings) Act 2003 55\n(d) whether undue influence or pressure was exerted on, or unfair\ntactics were used against, the landlord or a person acting on\nbehalf of the landlord by the tenant or a person acting on\nbehalf of the tenant in relation to the lease;\n(e) the amount for which, and the circumstances in which, the\nlandlord could have granted an identical or equivalent lease to\na person other than the tenant;\n(f) the extent to which the tenant's conduct towards the landlord\nwas consistent with the tenant's conduct in similar\ntransactions between the tenant and other similar landlords;\n(g) the requirements of an applicable industry code;\n(h) the requirements of another industry code, if the landlord\nacted on the reasonable belief that the tenant would comply\nwith the code;\n(i) the extent to which the tenant was willing to negotiate the\nterms and conditions of any lease with the landlord;\n(j) the extent to which the tenant unreasonably failed to disclose\nto the landlord:\n(i) intended conduct of the tenant that might affect the\ninterests of the landlord; and\n(ii) risks to the landlord arising from the tenant's intended\nconduct (being risks that the tenant should have\nforeseen would not be apparent to the landlord);\n(k) the extent to which the tenant and the landlord acted in good\nfaith.\n","sortOrder":90},{"sectionNumber":"81","sectionType":"section","heading":"Conduct that is not unconscionable","content":"81 Conduct that is not unconscionable\nFor this Part, a person is not taken to engage in unconscionable\nconduct in connection with a retail shop lease merely because:\n(a) the person institutes legal proceedings in relation to the lease;\nor\n(b) fails to renew the lease or to issue a new lease.\n\nBusiness Tenancies (Fair Dealings) Act 2003 56\n","sortOrder":91},{"sectionNumber":"82","sectionType":"section","heading":"Interpretation","content":"82 Interpretation\n(1) In this Part:\napplication means an application lodged with the Commissioner\nunder section 86.\ncertificate means a certificate issued under section 104.\nconciliator means the person conducting a conference.\nconference means a preliminary conciliation conference or a\nconciliation conference.\ndisputed matter means a matter that is the subject of a retail\ntenancy claim.\nHearing Commissioner means the person conducting an inquiry.\norder includes direction, declaration, determination and decision.\nproceedings means any of the following:\n(a) a preliminary conciliation conference;\n(b) a conciliation conference;\n(c) an inquiry.\nretail tenancy claim, see section 84.\nretail tenancy dispute, see section 83.\n(2) A reference in this Part to a party to a retail shop lease or former\nparty to a former retail shop lease includes a reference to a person\nwho is or was a guarantor or covenantor under a retail shop lease\nor former retail shop lease.\n","sortOrder":92},{"sectionNumber":"83","sectionType":"section","heading":"Meaning of retail tenancy dispute","content":"83 Meaning of retail tenancy dispute\n(1) A retail tenancy dispute is a dispute concerning the liabilities or\nobligations of a party to a retail shop lease, or a former party to a\nformer retail shop lease, that arose:\n(a) under the lease or former lease; or\n\nBusiness Tenancies (Fair Dealings) Act 2003 57\n(b) in connection with the use or occupation of the retail shop to\nwhich the lease or former lease relates.\n(2) The following disputes are not retail tenancy disputes for this Part:\n(a) a dispute in relation to unconscionable conduct mentioned in\nPart 10;\n(b) a dispute in relation to the repossession of business premises\nmentioned in Part 13, Division 2.\n","sortOrder":93},{"sectionNumber":"84","sectionType":"section","heading":"Meaning of retail tenancy claim","content":"84 Meaning of retail tenancy claim\nA retail tenancy claim is any of the following claims or\napplications:\n(a) in relation to a retail tenancy dispute:\n(i) a claim for the payment of a specified sum of money\n(including a claim for compensation under section 18); or\n(ii) a claim for relief from payment of a specified sum of\nmoney; or\n(iii) a claim for the performance of specified work or the\nprovision of specified services; or\n(iv) a claim for assignment of rights under a lease or for a\ndeclaration that a landlord is not entitled to withhold\nconsent to an assignment of the rights of a tenant; or\n(v) a claim regarding the rectification of the lease; or\n(vi) a claim regarding the invalidity of a lease or a provision\nof the lease for inconsistency with this Act or the\nRegulations; or\n(vii) a claim for a declaration of the rights, obligations and\nliabilities of the parties under a lease;\n(b) an application under section 29(3) by a specialist retail valuer\nfor an order that a landlord comply with a request for\ninformation;\n(c) an application under section 31(4)(b) by a person seeking a\ndetermination of compensation.\n\nBusiness Tenancies (Fair Dealings) Act 2003 58\n","sortOrder":94},{"sectionNumber":"85","sectionType":"section","heading":"Retail tenancy claim may be taken to court only if certificate","content":"85 Retail tenancy claim may be taken to court only if certificate\nissued\n(1) A retail tenancy claim may be the subject of proceedings before a\ncourt only if a certificate is issued in relation to the claim.\n(2) Subsection (1) does not apply to proceedings before a court for an\norder in the nature of an injunction.\n","sortOrder":95},{"sectionNumber":"86","sectionType":"section","heading":"Application to Commissioner","content":"86 Application to Commissioner\n(1) A party to a retail shop lease or a former party to a former retail\nshop lease may apply to the Commissioner for determination of a\nretail tenancy claim.\n(2) An application in respect of a retail tenancy claim is to be lodged\nwith the Commissioner.\n(3) An application in respect of a retail tenancy claim is to be in the\nform prescribed by the Regulations and accompanied by the fee\nprescribed under section 87.\n(4) An application is to contain a brief summary of the nature of the\nretail tenancy claim, briefly set out the facts relevant to the claim\nand include the information specified by the prescribed form.\n(5) An application may not be made more than 3 years after the date\non which the liability or obligation that is the subject of the\napplication arose.\n","sortOrder":96},{"sectionNumber":"87","sectionType":"section","heading":"Application fees","content":"87 Application fees\n(1) The Minister may, by Gazette notice, prescribe the fees payable\nunder this Act in relation to an application.\n(2) The Commissioner may waive a fee payable under this Act in\nrelation to an application and, if a fee is so waived, the person to\nwhom the waiver relates is not required to pay the fee.\n","sortOrder":97},{"sectionNumber":"88","sectionType":"section","heading":"Commissioner to give notice of conference","content":"88 Commissioner to give notice of conference\n(1) On receipt of an application, the Commissioner must determine a\ntime and place for the holding of a preliminary conciliation\nconference or a conciliation conference.\n\nBusiness Tenancies (Fair Dealings) Act 2003 59\n(2) The Commissioner must:\n(a) give the applicant a notice setting out the time and place at\nwhich the conference is to be held; and\n(b) give to the other parties to the application a notice setting out:\n(i) the time and place at which the conference is to be held;\nand\n(ii) a brief description of the nature of the application.\n","sortOrder":98},{"sectionNumber":"88A","sectionType":"section","heading":"Commissioner may cancel conference","content":"88A Commissioner may cancel conference\n(1) The Commissioner may cancel a conference if a party to the\napplication refuses to participate in the conference.\n(2) If the Commissioner cancels a conference under subsection (1), the\nCommissioner must:\n(a) give all parties to the application written notice specifying the\nreasons for cancellation; and\n(b) determine whether:\n(i) an inquiry should be held; or\n(ii) a certificate should be issued.\n","sortOrder":99},{"sectionNumber":"89","sectionType":"section","heading":"Who may conduct proceedings","content":"89 Who may conduct proceedings\n(1) A particular proceeding may be conducted by any of the following\npersons, who must be suitably qualified in accordance with this\nsection to conduct that proceeding:\n(a) the Commissioner;\n(b) a delegate of the Commissioner under section 13;\n(c) any other person appointed in writing by the Commissioner.\n(2) The Commissioner must ensure that, in relation to an application,\nthe same person does not personally conduct more than one of the\nfollowing:\n(a) a preliminary conciliation conference;\n(b) a conciliation conference;\n(c) an inquiry.\n\nBusiness Tenancies (Fair Dealings) Act 2003 60\n(3) If a conciliation conference is to be conducted by a delegate of the\nCommissioner, the Commissioner must ensure that wherever\npracticable the delegate has the prescribed qualifications.\n(4) A person conducting an inquiry must be a lawyer who has been\nadmitted to the legal profession for at least 5 years.\n(5) A conference or an inquiry in respect of an application is not to be\nconducted by a person who has conducted or taken part in an\ninvestigation to determine whether an offence against this Act has\nbeen committed by a party to the application in relation to the\ndisputed matter.\n","sortOrder":100},{"sectionNumber":"90","sectionType":"section","heading":"Who may attend conferences","content":"90 Who may attend conferences\nThe following persons are entitled to attend a conference:\n(a) the applicant;\n(b) any other party to the application;\n(c) a representative of a party to the application permitted by\nsection 111 to attend;\n(d) the Commissioner (if he or she is not the conciliator).\n","sortOrder":101},{"sectionNumber":"91","sectionType":"section","heading":"General principles of dispute resolution at conferences","content":"91 General principles of dispute resolution at conferences\nProcedures for dispute resolution at a conference may include\ninformal mediation, conciliation and other forms of alternative\ndispute resolution.\n","sortOrder":102},{"sectionNumber":"92","sectionType":"section","heading":"Purpose of preliminary conference","content":"92 Purpose of preliminary conference\n(1) At a preliminary conciliation conference, the conciliator must:\n(a) give information to ensure that the parties to the application\nare fully aware of their rights and obligations under this Act;\nand\n(b) encourage full, open communication between the parties\nabout the retail tenancy dispute on a without prejudice basis;\nand\n(c) encourage the parties to identify the relevant facts and\npropose solutions to, and resolve by agreement, the matters in\ndispute between the parties.\n\nBusiness Tenancies (Fair Dealings) Act 2003 61\n(2) If the parties do not resolve the matters in dispute, the\nCommissioner must determine whether:\n(a) a conciliation conference should be held; or\n(b) an inquiry should be held; or\n(c) a certificate should be issued.\n","sortOrder":103},{"sectionNumber":"93","sectionType":"section","heading":"Purpose of conciliation conference","content":"93 Purpose of conciliation conference\n(1) At a conciliation conference, the parties to the application are,\nbetween themselves with the assistance of the conciliator, to\nattempt to resolve the retail tenancy claim by negotiating a\nsettlement.\n(2) If the parties do not negotiate a settlement, the Commissioner must\ndetermine whether:\n(a) a further conciliation conference should be held; or\n(b) an inquiry should be held; or\n(c) a certificate should be issued.\n","sortOrder":104},{"sectionNumber":"94","sectionType":"section","heading":"Procedure for conferences","content":"94 Procedure for conferences\n(1) Unless the conciliator determines otherwise, conferences are to be\nheld in private.\n(2) The conciliator may exclude from the conference a person other\nthan the parties and the representatives permitted by section 111 to\nattend.\n(3) A settlement to which a party agrees at a conference is binding on\nthe party.\n(4) The conciliator may refer a question of law arising at the conference\nto a legal practitioner for determination.\n(5) The conciliator may record a settlement reached at a conference\nand may make an order to give effect to the settlement.\n(6) An order made under subsection (5) has effect as if it were an order\nmade at an inquiry.\n","sortOrder":105},{"sectionNumber":"95","sectionType":"section","heading":"Costs of conciliation to be met by parties","content":"95 Costs of conciliation to be met by parties\nThe costs of and associated with a conference are to be paid by the\nparties to the application in the proportions agreed between\nthemselves or, if they cannot agree, in equal shares.\n\nBusiness Tenancies (Fair Dealings) Act 2003 62\n","sortOrder":106},{"sectionNumber":"96","sectionType":"section","heading":"Restriction on evidence","content":"96 Restriction on evidence\nEvidence of anything said or done in the course of a conference is\ninadmissible in other proceedings under this Part or before a court,\nexcept with the consent of all parties to the proceedings.\n","sortOrder":107},{"sectionNumber":"97","sectionType":"section","heading":"Confidentiality","content":"97 Confidentiality\nA conciliator must not disclose to another person, including the\nCommissioner, information obtained in the course of the\nconference, except with the consent of all parties to the conference\nor in the course of his or her duties under this Act.\n","sortOrder":108},{"sectionNumber":"98","sectionType":"section","heading":"When inquiries may be conducted","content":"98 When inquiries may be conducted\n(1) An inquiry may be conducted in respect of an application if:\n(a) the retail tenancy claim has not been settled between the\nparties at or after a conference; or\n(b) a conference was cancelled by the Commissioner under\nsection 88A(1).\n(2) An inquiry is not to be conducted in respect of an application\nrelating to a monetary claim if the value of the claim exceeds\n15 000 monetary units.\n","sortOrder":109},{"sectionNumber":"99","sectionType":"section","heading":"Procedures generally","content":"99 Procedures generally\n(1) Inquiries are to be conducted with the minimum of formality.\n(2) The Hearing Commissioner is not bound by evidentiary rules when\nconducting an inquiry but may inform himself or herself as he or she\nthinks fit.\n(3) Unless the Hearing Commissioner orders otherwise, an inquiry is to\nbe open to the public.\n","sortOrder":110},{"sectionNumber":"100","sectionType":"section","heading":"Powers to gather evidence","content":"100 Powers to gather evidence\n(1) The Hearing Commissioner may do any of the following in relation\nto an inquiry:\n(a) by summons, require a person to attend before him or her;\n\nBusiness Tenancies (Fair Dealings) Act 2003 63\n(b) by summons, require the production of books, papers or\ndocuments;\n(c) inspect books, papers or documents produced before him or\nher, retain them for a reasonable period and make copies of\nthem or of their contents;\n(d) require a person appearing before the Commissioner to give\nevidence on oath;\n(e) require a person appearing before the Hearing Commissioner,\nwhether summoned to appear or not, to answer relevant\nquestions put by the Hearing Commissioner or another person\nappearing at the inquiry.\n(2) A person must not:\n(a) without reasonable excuse, fail to comply with a summons\nunder subsection (1); or\n(b) refuse or fail to comply with a requirement of a Hearing\nCommissioner under subsection (1).\n","sortOrder":111},{"sectionNumber":"101","sectionType":"section","heading":"Powers at inquiry","content":"101 Powers at inquiry\nThe Hearing Commissioner may do any of the following for an\ninquiry:\n(a) hear the application in the manner the Hearing Commissioner\nthinks fit;\n(b) decline to consider the application or adjourn the inquiry until\nconditions fixed by the Hearing Commissioner are fulfilled,\nwith a view to promoting the settlement of matters in dispute\nbetween the parties;\n(c) decline to consider the application if the Hearing\nCommissioner thinks it is frivolous or vexatious;\n(d) proceed to hear and determine the application in the absence\nof a party;\n(e) extend a period prescribed by or under this Act within which\nthe application or other step in respect of proceedings is to be\nmade or taken, whether or not the period has expired;\n\nBusiness Tenancies (Fair Dealings) Act 2003 64\n(f) adjourn the inquiry to a time or place or to a time and place to\nbe fixed;\n(g) allow the amendment of the application;\n(h) hear the application jointly with another application;\n(i) receive in evidence a transcript of evidence in proceedings\nbefore a court and draw conclusions of fact from that\nevidence;\n(j) generally give directions and do all things the Hearing\nCommissioner thinks necessary or expedient in the\nproceedings.\n","sortOrder":112},{"sectionNumber":"102","sectionType":"section","heading":"Orders at inquiry","content":"102 Orders at inquiry\n(1) At an inquiry, the Hearing Commissioner may make any one or\nmore of the following orders that he or she considers appropriate:\n(a) an order that a party to the application:\n(i) pay money to a person specified in the order, whether by\nway of debt, damages, compensation or restitution; or\n(ii) refund money paid by a specified person;\n(b) an order that:\n(i) a specified amount of money is not due or owing by a\nparty to the application to a specified person; or\n(ii) a party to the application is not entitled to a refund of any\nmoney paid to another party to the proceedings;\n(c) an order that a party to the application:\n(i) do specified work or perform a specified service or\nobligation arising under this Act or the terms of a lease;\nor\n(ii) surrender possession of specified premises to another\nperson; or\n(iii) assign his or her or its rights under a lease to a specified\nperson; or\n(iv) do or perform, or refrain from doing or performing, a\nspecified act, matter or thing;\n\nBusiness Tenancies (Fair Dealings) Act 2003 65\n(d) an order, by consent of the parties, requiring the parties to the\nproceedings to rectify a lease;\n(e) an order:\n(i) that a lease is invalid or a provision in a lease is void for\ninconsistency with this Act or the Regulations; or\n(ii) that a landlord is not entitled to withhold consent to an\nassignment of the rights of a tenant; or\n(iii) relating to the rights and liabilities of the parties under\nlaw, whether or not consequential relief is or could be\nclaimed;\n(f) an order, in the nature of an interlocutory order of a kind\nmentioned in paragraphs (a) to (e), that the person thinks\nproper to be made to resolve or assist resolution of the retail\ntenancy claim.\n(2) The Hearing Commissioner may do either or both of the following:\n(a) make the ancillary orders he or she thinks necessary to\nenable an order under this section to have full effect;\n(b) impose on an order conditions he or she considers\nappropriate.\n","sortOrder":113},{"sectionNumber":"103","sectionType":"section","heading":"Reasons for decisions","content":"103 Reasons for decisions\nThe Hearing Commissioner must state in writing the reasons for an\norder made during or at the completion of the inquiry.\n","sortOrder":114},{"sectionNumber":"104","sectionType":"section","heading":"Certificate of failure to resolve retail tenancy claim","content":"104 Certificate of failure to resolve retail tenancy claim\n(1) The Commissioner must issue a certificate to each party to an\napplication if:\n(a) in relation to the application, either:\n(i) a preliminary conciliation conference has been held; or\n(ii) a preliminary conciliation conference was cancelled\nunder section 88A(1); and\n(b) an inquiry has not been commenced in respect of the\napplication; and\n\nBusiness Tenancies (Fair Dealings) Act 2003 66\n(c) the Commissioner is satisfied that the parties have failed to\nresolve the retail tenancy claim and are unlikely to do so; and\n(d) the retail tenancy claim is within a court's jurisdiction\nmentioned in section 105.\n(2) The certificate is to be in the form prescribed by the Regulations.\n(4) When a certificate is issued in respect of an application, no further\nproceedings relating to that application are to be held under this\nPart but a party to the application is entitled to commence a\nproceeding in a court of competent jurisdiction.\n","sortOrder":115},{"sectionNumber":"105","sectionType":"section","heading":"Jurisdiction of courts to hear unresolved retail tenancy claims","content":"105 Jurisdiction of courts to hear unresolved retail tenancy claims\n(1) The Local Court has jurisdiction to hear and determine retail\ntenancy claims in respect of any disputed matter.\nNote for subsection (1)\nSection 12 of the Local Court Act 2015 sets the jurisdictional limit of the Local\nCourt's civil jurisdiction at $250 000.\n(2) The Supreme Court has jurisdiction to hear and determine retail\ntenancy claims that relate to a monetary amount in excess of\n$200 000.\n(3) The Supreme Court or Local Court must not hear and determine a\nclaim mentioned in this section unless a certificate has been issued\nin respect of the claim.\n","sortOrder":116},{"sectionNumber":"106","sectionType":"section","heading":"Powers of court hearing unresolved retail tenancy claim","content":"106 Powers of court hearing unresolved retail tenancy claim\nA court in which proceedings are brought in accordance with this\nAct may exercise the powers of the Hearing Commissioner under\n","sortOrder":117},{"sectionNumber":"Div 4","sectionType":"division","heading":"in addition to any other powers it may have.","content":"Division 4 in addition to any other powers it may have.\n","sortOrder":118},{"sectionNumber":"107","sectionType":"section","heading":"No legal costs if plaintiff awarded less than 15 000 monetary","content":"107 No legal costs if plaintiff awarded less than 15 000 monetary\nunits by court\nIf the plaintiff in proceedings brought in a court in accordance with\nthis Act recovers less than 15 000 monetary units, the plaintiff is not\nentitled to costs unless the court is satisfied that there were\nreasonable grounds for the plaintiff to believe that the plaintiff was\nentitled to 15 000 monetary units or more.\n\nBusiness Tenancies (Fair Dealings) Act 2003 67\n","sortOrder":119},{"sectionNumber":"108","sectionType":"section","heading":"Entry and inspection of property","content":"108 Entry and inspection of property\n(1) The Commissioner may:\n(a) enter land or a building; or\n(b) authorise, in writing, a person to enter land or a building.\n(2) The Commissioner or a person authorised under subsection (1)\nmay do any of the following:\n(a) carry out an inspection the Commissioner considers relevant\nto proceedings;\n(b) take photographs, including video recordings, or make\nsketches or other records of land or a building or things on or\nin land or a building;\n(c) inspect and take copies of a document as defined in Part 1 of\nthe Dictionary at the end of the Evidence (National Uniform\nLegislation) Act 2011; or\n(d) open a container, cupboard, box, package or carton to inspect\nthe contents;\n(e) ask questions of a person on the land or request him or her to\nprovide assistance in carrying out an investigation of the land\nor building.\n(3) The Commissioner must take reasonable steps to ensure that:\n(a) at least 24 hours notice of a proposed inspection under\nsubsection (1) is given to the landlord and the tenant; and\n(b) an inspection carried out under subsection (1) takes place at a\ntime and in circumstances that are as convenient as\npracticable for the Commissioner, the landlord and the tenant.\n(4) A person must not obstruct the Commissioner or a person\nauthorised by the Commissioner in exercising a power of entry or\ninspection under this Act.\n\nBusiness Tenancies (Fair Dealings) Act 2003 68\n","sortOrder":120},{"sectionNumber":"109","sectionType":"section","heading":"Place and time of proceedings","content":"109 Place and time of proceedings\nProceedings may be conducted at any place and at any time,\nincluding a day that is not a business day.\n","sortOrder":121},{"sectionNumber":"110","sectionType":"section","heading":"Duty to act quickly","content":"110 Duty to act quickly\nThe Commissioner must ensure that proceedings in relation to an\napplication are concluded within 28 days after receipt of the\napplication by the Commissioner or as soon after that as is\nreasonably practicable.\n","sortOrder":122},{"sectionNumber":"111","sectionType":"section","heading":"Representation of parties","content":"111 Representation of parties\n(1) A party may be represented in proceedings by a legal practitioner.\n(2) A person may be represented in proceedings by a person other\nthan a legal practitioner if:\n(a) the party is a body corporate and the representative is an\nofficer or employee of the body corporate; or\n(b) the party is a landlord and the representative is an agent\nappointed by the landlord to manage the premises on the\nlandlord's behalf and the Commissioner is satisfied that it will\nnot unfairly disadvantage an unrepresented party; or\n(c) all parties to the proceedings agree to the representation and\nthe Commissioner is satisfied that:\n(i) it will not unfairly disadvantage an unrepresented party;\nor\n(ii) if appropriate information or assistance or both were to\nbe provided by the Commissioner to the unrepresented\nparty, that party would not be unfairly disadvantaged; or\n(d) the Commissioner is satisfied that the party is unable to\npresent the party's case properly without the assistance of the\nperson.\n","sortOrder":123},{"sectionNumber":"112","sectionType":"section","heading":"Payment of lawyers, translators etc.","content":"112 Payment of lawyers, translators etc.\nA person must not ask for or receive a fee for representing a party\nin an application unless the person is:\n(a) a translator or interpreter and the fees relate to work as a\ntranslator or interpreter; or\n\nBusiness Tenancies (Fair Dealings) Act 2003 69\n(b) a legal practitioner; or\n(c) an articled clerk employed by a legal practitioner; or\n(d) an officer or employee of a body corporate who represented\nthe body corporate in the proceedings; or\n(e) an agent as defined in section 5(1) of the Agents Licensing\nAct 1979 acting on behalf of a landlord.\nMaximum penalty: 20 penalty units.\n","sortOrder":124},{"sectionNumber":"113","sectionType":"section","heading":"Costs not generally to be ordered","content":"113 Costs not generally to be ordered\n(1) Subject to subsection (2), a conciliator or Hearing Commissioner\nmust not make an order requiring a party to the application to pay\nan amount by way of costs.\n(2) If at an inquiry the Hearing Commissioner is of the opinion that the\napplication is frivolous or vexatious or brought otherwise than in\ngood faith, he or she may order the applicant to pay an amount by\nway of costs to another person appearing at the inquiry.\n(3) The person in whose favour an order is made under subsection (2)\nmay recover the amount specified in the order from the applicant as\na debt due and payable.\n","sortOrder":125},{"sectionNumber":"114","sectionType":"section","heading":"Interest may be awarded","content":"114 Interest may be awarded\n(1) If a conciliator or Hearing Commissioner makes an order that a\nperson pay money to another person, the order may include, in the\namount ordered to be paid, interest at a specified rate on the whole\nor a part of that amount for the whole or a part of the period\nbetween when the liability or obligation in question arose and when\nthe order takes effect.\n(2) If the whole or part of an amount claimed in an application is paid\nduring proceedings:\n(a) before an order is made for payment in respect of the claim; or\n(b) without an order being made for payment in respect of the\nclaim;\nan order may be made that interest be paid at a specified rate on\nthe whole or a part of the money paid for the whole or a part of the\nperiod between when the liability or obligation in question arose and\nthe date of the payment.\n\nBusiness Tenancies (Fair Dealings) Act 2003 70\n(3) The rate of interest to be paid under this section is not to exceed\nthe rate at which interest is payable on a judgment debt of the Local\nCourt.\n(4) This section does not:\n(a) authorise the giving of interest on interest; or\n(b) apply in relation to any debt on which interest is payable as of\nright whether because of any agreement or otherwise.\n(5) On a claim for the payment of money, no order is to be made for\nthe payment of interest under subsection (1) in respect of the period\nafter the date on which an appropriate settlement sum (or the first\nappropriate settlement sum) has been offered unless the special\ncircumstances of the case warrant the making of the order.\n(6) For subsection (5), an appropriate settlement sum is a sum offered\nby a party in settlement of a claim for the payment of money where\nthe amount ordered to be paid (including interest accrued up to and\nincluding the date of the offer) is not more than 10% of the sum\noffered.\n(7) Subsection (5) does not prevent an order for the payment of\ninterest for the period before the settlement offer is made.\n","sortOrder":126},{"sectionNumber":"115","sectionType":"section","heading":"Contempt","content":"115 Contempt\n(1) A person must not:\n(a) during proceedings, insult the conciliator or Hearing\nCommissioner; or\n(b) interrupt proceedings; or\n(c) create a disturbance, or take part in creating or continuing a\ndisturbance, in or near a place where proceedings are being\nconducted.\n(2) If a person has, in the opinion of the conciliator or Hearing\nCommissioner, committed an offence against this section during\nproceedings, the conciliator or Hearing Commissioner may eject the\nperson from the proceedings.\n\nBusiness Tenancies (Fair Dealings) Act 2003 71\n(3) A person ejected from proceedings under subsection (2) must not\nreturn to the proceedings from which he or she was ejected.\n","sortOrder":127},{"sectionNumber":"116","sectionType":"section","heading":"Enforcement of orders","content":"116 Enforcement of orders\n(1) A registrar of the Local Court may, on the application of the\nCommissioner or a party to an application to which an order under\nthis Part relates, register the order as an order of the Local Court.\n(2) An order that is registered under this section is taken to be an order\nof the Local Court and may be enforced accordingly.\n","sortOrder":128},{"sectionNumber":"117","sectionType":"section","heading":"Procedural rules","content":"117 Procedural rules\nThe Commissioner may make rules relevant to the practice and\nprocedure relating to proceedings or to assist in the effective and\nefficient handling of applications.\n","sortOrder":129},{"sectionNumber":"118","sectionType":"section","heading":"Definition","content":"118 Definition\nretail tenancy order means an order made under Part 11.\n","sortOrder":130},{"sectionNumber":"119","sectionType":"section","heading":"Appeal may be made to Local Court","content":"119 Appeal may be made to Local Court\n(1) A party to an application under Part 11 may appeal to the Local\nCourt against a retail tenancy order made in respect of that\napplication.\n(2) An appeal against a retail tenancy order is to be an appeal de novo.\n(3) In an appeal, the Local Court is not bound by the rules of evidence\nand may inform itself in any manner it thinks fit.\n(4) In an appeal, the Local Court may do one or more of the following:\n(a) confirm, vary or quash the retail tenancy order;\n(b) make an order that should have been made in the first\ninstance by the person who made the retail tenancy order;\n(c) make incidental and ancillary orders.\n\nBusiness Tenancies (Fair Dealings) Act 2003 72\n(5) Subject to subsection (6), an application for appeal may be lodged:\n(a) before 14 days after the date of the order, determination or\ndecision appealed against, unless the Local Court allows an\nextension of time; or\n(b) if the person who made the retail tenancy order does not give\nreasons for the order at the time of making it – within 14 days\nafter the parties are given the reasons.\n(6) If the reasons of the person who made the retail tenancy order are\nnot given in writing at the time of making the order, and the\nappellant then requests that person to state the reasons in writing,\nthe time for commencing the appeal runs from the time when the\nappellant receives the written statement of the reasons.\n(7) This section does not prevent the Supreme Court from hearing an\nappeal against a decision of the Local Court under this Act.\n","sortOrder":131},{"sectionNumber":"120","sectionType":"section","heading":"Notice of appeal to be given to Commissioner","content":"120 Notice of appeal to be given to Commissioner\n(1) If the Local Court receives a notice of appeal under this Part, a\ncopy of the notice is to be sent to the Commissioner by a registrar\nof the Local Court.\n(2) If the Commissioner receives a copy of a notice of appeal under\nthis Part, the person who made the order must provide to the Local\nCourt all information in his or her possession relating to the retail\ntenancy order other than matters to which section 96 relates.\n","sortOrder":132},{"sectionNumber":"121","sectionType":"section","heading":"Stay of proceedings","content":"121 Stay of proceedings\n(1) If a retail tenancy order has been made and a court or the\nCommissioner is satisfied that an appeal against the order has\nbeen commenced, the court or the Commissioner may suspend the\noperation of the retail tenancy order until the determination of the\nappeal.\n(2) If the Commissioner suspends the operation of a retail tenancy\norder, the Commissioner may terminate the suspension.\n(3) If a court or the Commissioner suspends the operation of a retail\ntenancy order, the court may terminate the suspension.\n\nBusiness Tenancies (Fair Dealings) Act 2003 73\n","sortOrder":133},{"sectionNumber":"Div 1","sectionType":"division","heading":"Interpretation","content":"Division 1 Interpretation\n","sortOrder":134},{"sectionNumber":"122","sectionType":"section","heading":"Interpretation","content":"122 Interpretation\nrent means the amount of money payable under a business lease\nfor the right to occupy or use business premises, or business\npremises and goods, for a period of time and includes any rates or\ntaxes payable by the tenant but, where in the business lease:\n(a) it is provided that a reduced amount may be accepted by the\nlandlord as rent upon the performance of a condition by the\ntenant; or\n(b) provision is made for a rebate, discount, allowance or other\nreduction of rent;\nthe amount payable after such reduction is made is, for this Part,\ntaken to be the rent payable under the lease.\ntenant includes a person who remains in possession of business\npremises after determination of a lease of those premises to him or\nher and the word \"landlord\" is used correlatively.\n","sortOrder":135},{"sectionNumber":"123","sectionType":"section","heading":"Definitions","content":"123 Definitions\nIn this Division:\nlandlord means the party to a business lease who makes premises\navailable for occupation by a tenant or who, being an owner of\nbusiness premises, permits a person to occupy those premises in\nexchange for rent.\ntenant includes a person in possession of business premises under\nan assignment of a lease or a sublease where the assignment or\nthe grant of a sublease has been made or given without the\nconsent of the landlord and that consent was required under the\nterms of the lease whether expressed or implied.\n","sortOrder":136},{"sectionNumber":"124","sectionType":"section","heading":"No entry without order","content":"124 No entry without order\nA person must not, except in accordance with an order of a court,\nenter business premises of which a person has possession as a\ntenant under a business lease, or as a former tenant holding over\n\nBusiness Tenancies (Fair Dealings) Act 2003 74\nafter termination of a business lease, for the purpose of recovering\npossession of the premises, whether entry is effected peaceably or\notherwise.\n","sortOrder":137},{"sectionNumber":"125","sectionType":"section","heading":"Notice to quit to be in writing","content":"125 Notice to quit to be in writing\nA notice to quit given by a landlord is to be in writing and signed by\nthe landlord or the landlord's agent authorised in writing.\n","sortOrder":138},{"sectionNumber":"126","sectionType":"section","heading":"Landlord may evict tenant if drug premises order made","content":"126 Landlord may evict tenant if drug premises order made\nA landlord of business premises that are drug premises as defined\nin section 11A of the Misuse of Drugs Act 1990 may issue a notice\nto quit in accordance with section 125 requiring the tenant to give\nup vacant possession of the business premises within 14 days.\n","sortOrder":139},{"sectionNumber":"127","sectionType":"section","heading":"Expiry of notice","content":"127 Expiry of notice\n(1) A notice to quit given by a landlord and a notice of intention to quit\ngiven by a tenant may expire at any time specified in the notice if\nthe period of notice required by this Division is given, despite the\nfact that the expiry of the period of the notice does not coincide with\na day before a rent day or a day before the last day of the tenancy.\n(2) A notice of intention to quit given by a tenant is to be for:\n(a) the period as agreed between the parties to the lease; or\n(b) if no agreement is reached under paragraph (a):\n(i) if the lease is for a fixed term – the unexpired duration of\nthe term; or\n(ii) in any other case – 14 days.\n","sortOrder":140},{"sectionNumber":"128","sectionType":"section","heading":"Certain matters not to affect notice","content":"128 Certain matters not to affect notice\nWhere notice to quit premises has been given:\n(a) a demand by the landlord for payment of rent or a sum of\nmoney as rent; or\n(b) the institution of proceedings by the landlord for recovery of\nrent or a sum of money as rent; or\n(c) the acceptance by the landlord of rent or a sum of money as\nrent;\n\nBusiness Tenancies (Fair Dealings) Act 2003 75\nin respect of a period within 6 months after the giving of the notice\ndoes not, of itself, constitute evidence of a tenancy or operate as a\nwaiver of the notice to quit.\n","sortOrder":141},{"sectionNumber":"129","sectionType":"section","heading":"Defective notice","content":"129 Defective notice\nA notice to quit which does not comply with the provisions of this\nDivision does not operate so as to terminate the tenancy in respect\nof which the notice was given.\n","sortOrder":142},{"sectionNumber":"130","sectionType":"section","heading":"Notice to quit business premises","content":"130 Notice to quit business premises\n(1) Subject to a term of the business lease, a landlord is not required to\nspecify in the notice to quit a ground for the giving of notice in\nrespect of a periodical tenancy.\n(2) Subject to the terms of the business lease, if the lease was granted\nfor a fixed term the landlord must specify as a ground for the giving\nof a notice to quit:\n(a) that the tenant has breached or failed to comply with a\nprovision of the lease and that the breach or failure to comply\nwas such that the landlord was justified as treating the lease\nas at an end; or\n(b) that the term of the lease has expired.\n(3) The period of a notice to quit premises is the period fixed by the\nlease or, where the rent is payable at regular intervals, the period of\none such interval.\n","sortOrder":143},{"sectionNumber":"131","sectionType":"section","heading":"Application for warrant of ejectment","content":"131 Application for warrant of ejectment\n(1) Where a landlord has given to a tenant a notice to quit which\ncomplies with this Division, the landlord or an agent authorised in\nwriting may, at any time within 60 days after the expiry of the term\nof the notice, apply to the Local Court for a warrant of possession.\n(2) The Court must specify the day on which an order for the issue of a\nwarrant of possession takes effect.\n","sortOrder":144},{"sectionNumber":"132","sectionType":"section","heading":"Court may make orders for outstanding rent etc.","content":"132 Court may make orders for outstanding rent etc.\nThe Court may, in making an order under this Division, make\nfurther orders as to payment of any outstanding rent or damage to\nbusiness premises or goods leased with business premises that\nmay be established by the landlord.\n\nBusiness Tenancies (Fair Dealings) Act 2003 76\n","sortOrder":145},{"sectionNumber":"132A","sectionType":"section","heading":"Application of Division","content":"132A Application of Division\nThis Division applies if, during the emergency period, an application\nis made to the Local Court for a warrant of possession of business\npremises.\n","sortOrder":146},{"sectionNumber":"132B","sectionType":"section","heading":"Referral to NTCAT","content":"132B Referral to NTCAT\n(1) Before hearing and determining the application, the Local Court\nmust refer the matter to NTCAT for alternative dispute resolution.\n(2) Despite subsection (1), if the Local Court is satisfied there are\nexceptional circumstances, the Local Court may proceed to hear\nand determine the application without referring the matter to\nNTCAT.\n(3) NTCAT must deal with a matter referred to it in accordance with\nsubsection (1) under Part 4, Division 4 of the Northern Territory\nCivil and Administrative Tribunal Act 2014 as if the matter were a\nproceeding in NTCAT's original jurisdiction.\n","sortOrder":147},{"sectionNumber":"132C","sectionType":"section","heading":"Alternative mediation or conciliation","content":"132C Alternative mediation or conciliation\n(1) Despite section 132B(1), if the Local Court is satisfied that the\nparties prefer to arrange their own mediation or conciliation without\ninvolving NTCAT, and that such a course is appropriate, the Local\nCourt may adjourn the hearing of an application to allow the\nmediation or conciliation to take place.\n(2) A mediator or conciliator engaged by the parties as mentioned in\nsubsection (1) must advise the Local Court:\n(a) of the date that the mediation or conciliation concluded; and\n(b) whether the mediation or conciliation was successful or\nunsuccessful.\n(3) If mediation or conciliation in accordance with this section is\nsuccessful, the application for a warrant of possession is taken to\nbe withdrawn.\n","sortOrder":148},{"sectionNumber":"132D","sectionType":"section","heading":"Alternative dispute resolution successful","content":"132D Alternative dispute resolution successful\nNTCAT must notify the Local Court if the parties agree to a\nsettlement in alternative dispute resolution before NTCAT, and the\napplication for a warrant of possession is taken to be withdrawn.\n\n","sortOrder":149},{"sectionNumber":"Div 2B","sectionType":"division","heading":"Offences in relation to negotiations during emergency period","content":"Division 2B Offences in relation to negotiations during emergency period\nBusiness Tenancies (Fair Dealings) Act 2003 77\n","sortOrder":150},{"sectionNumber":"132E","sectionType":"section","heading":"Alternative dispute resolution unsuccessful","content":"132E Alternative dispute resolution unsuccessful\n(1) NTCAT must advise the Local Court that a resolution has not been\nachieved if:\n(a) NTCAT is satisfied that the applicant has participated in good\nfaith in alternative dispute resolution before NTCAT, but a\nsettlement could not be reached; or\n(b) a settlement is not reached within 60 days after the Local\nCourt referred the matter to NTCAT under section 132B.\n(2) If the Local Court is considering the matter of costs in a proceeding,\nthe court may request from NTCAT a report on the conduct of the\nparties in alternative dispute resolution proceedings before NTCAT.\nDivision 2B Offences in relation to negotiations during\nemergency period\n","sortOrder":151},{"sectionNumber":"132F","sectionType":"section","heading":"Misrepresentation","content":"132F Misrepresentation\nA person commits an offence if:\n(a) the person is a party to negotiations between a landlord and a\ntenant or is acting on behalf of such a party; and\n(b) the negotiations take place during the emergency period; and\n(c) the negotiations seek to adjust the terms of an arrangement\nfor the occupation of premises for business purposes; and\n(d) the person intentionally or recklessly misrepresents the\nfinancial situation of the party in the course of the negotiations.\n2 years.\n","sortOrder":152},{"sectionNumber":"132G","sectionType":"section","heading":"Unauthorised disclosure of information","content":"132G Unauthorised disclosure of information\n(1) A person commits an offence if:\n(a) the person is a party to negotiations between a landlord and a\ntenant or is acting on behalf of such a party; and\n(b) the negotiations take place during the emergency period; and\n(c) the negotiations seek to adjust the terms of an arrangement\nfor the occupation of premises for business purposes; and\n\nBusiness Tenancies (Fair Dealings) Act 2003 78\n(d) the person intentionally or recklessly discloses information\nabout the other party's financial situation that was obtained in\nthe course of the negotiations.\nMaximum penalty: 500 penalty units or imprisonment for\n5 years.\n(2) A person does not commit an offence against subsection (1) if:\n(a) the disclosure is:\n(i) necessary for the administration of this Act; or\n(ii) for a legal proceeding; or\n(iii) for obtaining legal advice from a legal practitioner; or\n(iv) to report suspected illegal conduct to a government\norganisation with responsibility for investigating that kind\nof illegal conduct; or\n(v) with the consent of the other party; or\n(b) the person has knowledge of the information independently\nfrom obtaining the information in the course of the\nnegotiations.\n(3) For subsection (1), it is immaterial whether the disclosure was\nmade during, or after, the emergency period.\n","sortOrder":153},{"sectionNumber":"133","sectionType":"section","heading":"Tenant's right of association","content":"133 Tenant's right of association\n(1) A provision of a business lease is void to the extent that it has the\neffect of preventing or restricting the tenant from joining, forming or\ntaking part in any activities of a tenants association or other similar\nbody or of penalising the tenant in any way for doing so.\n(2) A landlord must not:\n(a) refuse to renew a business lease (whether or not the right to\nrenew was a condition of the lease) for the reason that the\ntenant has joined or is or was a member of a body or\nassociation of persons the objects of which include the mutual\nadvancement of their business interests, whether in relation to\nthe business carried on at the business premises to which the\nlease relates or elsewhere; or\n\nBusiness Tenancies (Fair Dealings) Act 2003 79\n(b) purport to exercise a power or right to terminate a business\nlease for the reason that the tenant has joined or is or was a\nmember of a body or an association mentioned in\nparagraph (a); or\n(c) threaten or otherwise indicate that he or she will refuse to\nrenew a business lease if the tenant joins or becomes a\nmember of a body or an association mentioned in\nparagraph (a).\nMaximum penalty: 1 000 penalty units.\n","sortOrder":154},{"sectionNumber":"134","sectionType":"section","heading":"Mitigation of damages for breach of lease","content":"134 Mitigation of damages for breach of lease\nThe rules under the law of contract relating to mitigation of loss or\ndamage upon breach of a contract apply in relation to a breach of a\nbusiness lease.\n","sortOrder":155},{"sectionNumber":"135","sectionType":"section","heading":"Service of notices","content":"135 Service of notices\nUnless otherwise provided by or under this Act, a notice required by\nor under this Act to be given to a person may be delivered\npersonally to the person or sent by post addressed:\n(a) if the person is an individual – to the person's last-known\nplace of business or residence; or\n(b) if the person is a body corporate:\n(i) that is a company as defined in section 9 of the\nCorporations Act 2001 – by serving a document in\naccordance with section 109X of that Act; or\n(ii) that is a registered body as defined in section 9 of the\nCorporations Act 2001 – by serving a document in\naccordance with section 601CX of that Act.\n","sortOrder":156},{"sectionNumber":"136","sectionType":"section","heading":"Notice to one landlord or tenant sufficient","content":"136 Notice to one landlord or tenant sufficient\nIf 2 or more persons are the landlords or tenants under a business\nlease, a notice or other document is duly given if given to any one\nof them.\n\nBusiness Tenancies (Fair Dealings) Act 2003 80\n","sortOrder":157},{"sectionNumber":"137","sectionType":"section","heading":"Notice or payment to landlord's agent sufficient","content":"137 Notice or payment to landlord's agent sufficient\nIf under this Act a tenant is required to give notice or a document to\na landlord or to pay money to a landlord, it is sufficient if the tenant:\n(a) gives notice or the document to, or pays the money to, the\nlandlord's agent; or\n(b) if the tenant has no notice of a new landlord – gives notice or\nthe document to, or pays the money to, the last-known\n","sortOrder":158},{"sectionNumber":"138","sectionType":"section","heading":"Extension of term of retail shop lease – effect on Land Title","content":"138 Extension of term of retail shop lease – effect on Land Title\nAct 2000\n(1) The extension of the term of a retail shop lease by operation of a\nprovision of this Act is of no effect for the Land Title Act 2000\nunless and until a lease is registered under that Act which gives\neffect to the extension of the term, or the variation of a lease that is\nalready registered under that Act is registered to give effect to the\nextension of the term.\n(2) The Registrar-General is not bound to inquire into or to recognise\nan increase or alleged increase in the term of a retail shop lease by\noperation of a provision of this Act.\n(3) The landlord under a retail shop lease, the term of which is\nextended by operation of a provision of this Act, is bound, at the\nrequest of the tenant:\n(a) to execute a lease in the approved form for the Land Title\nAct 2000 to enable registration of the lease under that Act\n(with its term so extended) if the lease is not already so\nregistered; and\n(b) to enter into the variation of the lease that may be necessary\nto give effect to the extension of term if the lease is already\nregistered under that Act, and to obtain all necessary\nconsents, for the registration under that Act of the variation of\nlease.\n","sortOrder":159},{"sectionNumber":"139","sectionType":"section","heading":"Meaning of the Act in retail shop leases","content":"139 Meaning of the Act in retail shop leases\nA reference in a retail shop lease to the Act is taken to be a\nreference to this Act, except in so far as the context or subject\nmatter otherwise indicates or requires.\n\nBusiness Tenancies (Fair Dealings) Act 2003 81\n","sortOrder":160},{"sectionNumber":"140","sectionType":"section","heading":"Commissioner may intervene in court proceedings","content":"140 Commissioner may intervene in court proceedings\n(1) The Commissioner may intervene in proceedings before a court\narising under this Act.\n(2) If the Commissioner intervenes in proceedings, the Commissioner\nbecomes a party to the proceedings and has all the rights, including\nrights of appeal, of a party to the proceedings.\n","sortOrder":161},{"sectionNumber":"141","sectionType":"section","heading":"Regulations","content":"141 Regulations\n(1) The Administrator may make regulations, not inconsistent with this\nAct, prescribing matters:\n(a) required or permitted by this Act to be prescribed; or\n(b) necessary or convenient to be prescribed for carrying out or\ngiving effect to this Act.\n(2) The Regulations may provide for the following matters:\n(a) a penalty of not more than 100 penalty units for an offence\nagainst the Regulations;\n(b) the payment of a prescribed amount instead of a penalty that\nmay otherwise be imposed for an offence against this Act or\nthe Regulations;\n(c) the service of an infringement notice in respect of payment of\na prescribed amount on a person alleged to have committed\nan offence mentioned in paragraph (b) and the particulars to\nbe included in that notice.\n","sortOrder":162},{"sectionNumber":"142","sectionType":"section","heading":"Repeal","content":"142 Repeal\nThe Acts specified in the Schedule are repealed.\n","sortOrder":163},{"sectionNumber":"143","sectionType":"section","heading":"Savings and transitional regulations","content":"143 Savings and transitional regulations\n(1) The Regulations may contain provisions of a savings or transitional\nnature consequent on the enactment of this Act.\n(2) The Regulations may provide that a provision mentioned in\nsubsection (1) takes effect from the date of assent to this Act or\nfrom a later date.\n\nBusiness Tenancies (Fair Dealings) Act 2003 82\n(3) To the extent to which a provision mentioned in subsection (1)\ntakes effect from a date that is earlier than the date on which notice\nof the making of the Regulations is published in the Gazette, the\nprovision does not operate so as to:\n(a) affect, in a manner prejudicial to a person (other than the\nTerritory or an authority of the Territory), the rights of that\nperson existing before the date on which the notice is\npublished; or\n(b) impose liabilities on a person (other than the Territory or an\nauthority of the Territory) in respect of anything done or\nomitted to be done before the date on which the notice is\npublished.\n","sortOrder":164},{"sectionNumber":"144","sectionType":"section","heading":"Review of Act","content":"144 Review of Act\n(1) The Minister must review this Act to determine whether the policy\nobjectives of the Act remain valid and whether the terms of the Act\nremain appropriate for securing those objectives.\n(2) The review is to be undertaken as soon as possible after 7 years\nafter the date of assent to this Act.\n(3) A report on the outcome of the review is to be tabled in the\nAssembly within 12 months after the end of the period of 7 years.\n\nBusiness Tenancies (Fair Dealings) Act 2003 83\nTenancy Act 1979 No. 43, 1979\nTenancy Act (No. 2) 1979 No. 131, 1979\nTenancy Amendment Act 1982 No. 19, 1982\nTenancy Amendment Act (No. 2) 1982 No. 37, 1982\nTenancy Amendment Act 1983 No. 37, 1983\n\nBusiness Tenancies (Fair Dealings) Act 2003 84\n1 KEY\nKey to abbreviations\namd = amended od = order\napp = appendix om = omitted\nbl = by-law pt = Part\nch = Chapter r = regulation/rule\ncl = clause rem = remainder\ndiv = Division renum = renumbered\nexp = expires/expired rep = repealed\nf = forms s = section\nGaz = Gazette sch = Schedule\nhdg = heading sdiv = Subdivision\nins = inserted SL = Subordinate Legislation\nlt = long title sub = substituted\nnc = not commenced\n2 LIST OF LEGISLATION\nBusiness Tenancies (Fair Dealings) Act 2003 (Act No. 55, 2003)\nAssent date 22 October 2003\nCommenced 1 July 2004 (Gaz G9, 3 March 2004, p 5)\nJustice Legislation Amendment Act 2007 (Act No. 5, 2007)\nAssent date 24 April 2007\nCommenced s 37 (ex amd of Criminal Code and Legal Profession Act\n2006): 1 May 2007 (s 2(1), s 2 Victims of Crime Assistance\nAct 2006 (Act No. 15, 2006) and Gaz G17, 26 April 2007,\np 7); rem: 24 April 2007\nLegal Profession (Consequential Amendments) Act 2007 (Act No. 7, 2007)\nAssent date 17 May 2007\nCommenced s 10: 1 July 2007 (Gaz G26, 27 June 2007, p 3);\nrem: 17 May 2007\nUnit Title Schemes Act 2009 (Act No. 14, 2009)\nAssent date 26 May 2009\nCommenced pt 2.3, div 3, sdv 4 and s 135 (to ext ins s 54C):\n1 January 2010; s 111: 1 July 2010; rem: 1 July 2009 (s 2,\nGaz S30, 26 June 2009, p 1, s 2 Land Title and Related\nLegislation Amendment Act 2008 (Act No. 3, 2008) and Gaz\nS30, 26 June 2009, p 1)\nJustice Legislation Amendment (Penalties) Act 2010 (Act No. 12, 2010)\nAssent date 20 May 2010\nCommenced 1 July 2010 (Gaz G24, 16 June 2010, p 2)\nConsumer Affairs and Fair Trading Amendment (National Uniform Legislation) Act 2010\n(Act No. 41, 2010)\nAssent date 8 December 2010\nCommenced 1 January 2011 (Gaz S71, 20 December 2010)\n\nBusiness Tenancies (Fair Dealings) Act 2003 85\nOaths, Affidavits and Declarations (Consequential Amendments) Act 2010 (Act No. 40,\n2010)\nAssent date 18 November 2010\nCommenced 1 March 2011 (s 2, s 2 Oaths, Affidavits and Declarations\nAct 2010 (Act No. 39, 2010) and Gaz G7, 16 February 2011,\np 4)\nJustice and Other Legislation Amendment Act 2011 (Act No. 25, 2011)\nAssent date 31 August 2011\nCommenced 21 September 2011 (Gaz G38, 21 September 2011, p 5)\nStatute Law Revision Act 2011 (Act No. 30, 2011)\nAssent date 31 August 2011\nCommenced 21 September 2011 (Gaz G38, 21 September 2011, p 5)\nEvidence (National Uniform Legislation) (Consequential Amendments) Act 2012 (Act\nNo. 23, 2012)\nAssent date 21 November 2012\nCommenced 1 January 2013 (Gaz G51, 19 December 2012, p 4)\nLocal Government Amendment Act 2014 (Act No. 19, 2014)\nAssent date 2 June 2014\nCommenced s 16: 1 July 2014; s 18: 1 December 2014; rem: 2 June 2014,\n(s 2)\nLocal Court (Related Amendments) Act 2016 (Act No. 8, 2016)\nAssent date 6 April 2016\nCommenced 1 May 2016 (s 2, s 2 Local Court (Repeals and Related\nAmendments) Act 2016 (Act No. 9, 2016) and Gaz S34,\n29 April 2016)\nTenancies Legislation Amendment Act 2020 (Act No. 15, 2020)\nAssent date 24 April 2020\nCommenced 25 April 2020 (s 2)\nJustice and Licensing Legislation Amendment Act 2022 (Act No. 6, 2022)\nAssent date 14 April 2022\nCommenced pt 6: 1 May 2022; rem: 1 July 2022 (Gaz S17, 27 April 2022)\nJustice and Other Legislation Further Amendment Act 2024 (Act No. 9, 2024)\nAssent date 24 May 2024\nCommenced pts 4 and 8: nc; pts 9 and 10: 1 July 2024 (s 2(3));\nrem: 25 May 2024 (s 2(1))\n3 GENERAL AMENDMENTS\nGeneral amendments of a formal nature (which are not referred to in the table\nof amendments to this reprint) are made by the Interpretation Legislation\nAmendment Act 2018 (Act No. 22, 2018) to: ss 1, 5, 12, 14, 16, 25, 63, 105,\n108, 112, 126 and 138.\n\nBusiness Tenancies (Fair Dealings) Act 2003 86\n4 LIST OF AMENDMENTS\npt 1 hdg amd No. 30, 2011, s 3\ns 3 amd No. 30, 2011, s 3\ns 5 amd No. 14, 2009, s 123; No. 30, 2011, s 3; No. 25, 2011,s 6; No. 19, 2014,\ns 26; No. 15, 2020, s 4\ns 6 amd No. 5, 2007, s 8; No. 30, 2011, s 3\nss 7 – 8 amd No. 30, 2011, s 3\nss 10 – 11 amd No. 30, 2011, s 3\npt 1A hdg ins No. 15, 2020, s 5\nss 11A – 11H ins No. 15, 2020, s 5\ns 12 amd No. 30, 2011, s 3\nss 15 – 16 amd No. 30, 2011, s 3\ns 17 amd No. 12, 2010, s 3; No. 30, 2011, s 3\ns 18 amd No. 30, 2011, s 3\ns 19 amd No. 12, 2010, s 3; No. 30, 2011, s 3\ns 21 amd No. 12, 2010, s 3; No. 30, 2011, s 3\ns 23 amd No. 30, 2011, s 3\ns 24 amd No. 12, 2010, s 3; No. 30, 2011, s 3; No. 25, 2011,s 7\ns 26 amd No. 30, 2011, s 3\nss 28 – 30 amd No. 30, 2011, s 3\ns 31 amd No. 12, 2010, s 3\ns 32 amd No. 30, 2011, s 3\ns 35 amd No. 30, 2011, s 3\ns 36 amd No. 12, 2010, s 3; No. 6, 2022, s 18\nss 38 – 41 amd No. 30, 2011, s 3\ns 43 amd No. 30, 2011, s 3\ns 47 amd No. 30, 2011, s 3; No. 19, 2014, s 26\ns 48 – 50 amd No. 30, 2011, s 3\ns 53 amd No. 30, 2011, s 3\ns 54 amd No. 12, 2010, s 3; No. 30, 2011, s 3\ns 55 amd No. 30, 2011, s 3\nss 59 – 60 amd No. 30, 2011, s 3\ns 61 amd No. 12, 2010, s 3; No. 30, 2011, s 3\ns 63 amd No. 30, 2011, s 3\ns 64 amd No. 12, 2010, s 3; No. 30, 2011, s 3; No. 25, 2011,s 8\ns 66 amd No. 12, 2010, s 3; No. 30, 2011, s 3\ns 72 amd No. 30, 2011, s 3\ns 75 amd No. 30, 2011, s 3\ns 76 amd No. 41, 2010, s 30\ns 77 amd No. 30, 2011, s 3\nss 79 – 81 amd No. 30, 2011, s 3\npt 11\ndiv 1 hdg amd No. 30, 2011, s 3\nss 82 – 84 amd No. 30, 2011, s 3\nss 86 – 87 amd No. 30, 2011, s 3\ns 88A ins No. 9, 2024, s 4\ns 89 amd No. 7, 2007, s 16; No. 30, 2011, s 3\nss 92 – 94 amd No. 30, 2011, s 3\ns 97 amd No. 12, 2010, s 3\ns 98 amd No. 6, 2022, s 18; No. 9, 2024, s 5\ns 100 amd No. 12, 2010, s 3; No. 40, 2010, s 118; No. 30, 2011, s 3\nss 101 – 102 amd No. 30, 2011, s 3\ns 104 amd No. 30, 2011, s 3; No. 9, 2024, s 6\ns 105 amd No. 30, 2011, s 3; No. 8, 2016, s 45; No. 15, 2020, s 6\ns 107 amd No. 6, 2022, s 18\ns 108 amd No. 12, 2010, s 3; No. 30, 2011, s 3; No. 23, 2012, s 32\n\nBusiness Tenancies (Fair Dealings) Act 2003 87\ns 111 amd No. 7, 2007, s 16; No. 30, 2011, s 3\ns 112 amd No. 12, 2010, s 3; No. 30, 2011, s 3\ns 114 amd No. 30, 2011, s 3\ns 115 amd No. 12, 2010, s 3; No. 30, 2011, s 3\ns 116 amd No. 30, 2011, s 3; No. 8, 2016, s 45\ns 120 amd No. 8, 2016, s 45\nss 122 – 123 amd No. 30, 2011, s 3\ns 124 amd No. 12, 2010, s 3\ns 126 amd No. 30, 2011, s 3\ns 128 amd No. 30, 2011, s 3\ndiv 1 hdg amd No. 30, 2011, s 3\ndiv 2A hdg ins No. 15, 2020, s 7\nss 132A –\n132E ins No. 15, 2020, s 7\ndiv 2B hdg ins No. 15, 2020, s 7\nss 132F –\n132G ins No. 15, 2020, s 7\ns 133 amd No. 12, 2010, s 3; No. 30, 2011, s 3\npt 14 hdg amd No. 30, 2011, s 3\ns 135 amd No. 30, 2011, s 3\ns 138 amd No. 30, 2011, s 3\ns 141 amd No. 30, 2011, s 3\ns 143 amd No. 30, 2011, s 3","sortOrder":165}],"analysis":{"flash_summary":{"complexity_score":8,"scope_assessment":{"changed":true,"description":"The Act's scope was materially expanded by the insertion of an emergency powers Part (Part 1A; ss 11A–11H). That Part authorises the Minister, during a declared COVID-19 public health emergency or related EMA declaration, to suspend or modify all or part of the Act, to make provisions that apply to occupation arrangements that would otherwise be excluded, and to set aside sections 6–8 and associated regulations as the Minister sees fit (ss 11B(2)–(3), 11B(4)). It also allows modification notices to override inconsistent lease provisions while in force (s 11C) and to create negotiation obligations (s 11B(5)). The Act provides for compensation if the modification would constitute an acquisition otherwise than on just terms (s 11F) and for Legislative Assembly disallowance of modification notices (s 11H). These additions change the Act’s original fixed-scope approach by giving the executive temporally limited power to alter coverage and substantive rights in emergency periods, and thus broaden the arrangements and leases to which the Act can apply (see ss 11B–11E)."},"complexity_factors":["Length and breadth: multiple Parts covering pre-contract duties, rent, outgoings, sinking funds, assignment, renewal, retail-centre-specific rules, unconscionable conduct, dispute resolution, repossession and miscellaneous provisions.","Cross-references and external interactions: routine interactions with other statutes and instruments (e.g. Law of Property Act 2000 (s 11E), Land Title Act 2000 (s 138), and delegated regulations (s 141)).","Emergency modification power: Part 1A (ss 11A–11H) permits temporary suspension/modification of many provisions and application to otherwise excluded arrangements, creating shifting scope and legal uncertainty during emergency periods (ss 11B–11D).","Detailed procedural regime for disputes: layered administrative process (preliminary conference, conciliation, inquiry), certificate requirement before court, timelines, monetary limits and appeal mechanisms (Part 11; ss 85–106; ss 119–121).","Technical commercial rules: prescribed approaches to rent reviews, market rent valuation mechanics, valuer appointment, confidentiality, and cost-sharing (ss 28–31), that require expert inputs.","Mandatory accounting/auditing requirements: landlord must produce estimates, expenditure and audited outgoings/advertising statements with specified timing and standards (ss 39–41, 70–71).","Multiple exclusions, exceptions and thresholds: coverage depends on lettable area, corporate status, lease length, and other regulatory exemptions (ss 6–8), increasing interpretive complexity.","Sanctions and civil remedies: combination of criminal penalties, civil debt recovery rights and administrative orders (e.g. s 24, s 31, s 66; Part 11 orders) requiring coordination across enforcement routes."],"plain_english_summary":"What this law does, mechanically\n\n- The Act sets detailed rules for retail shop leases and other business tenancies in the Northern Territory. It prescribes required documents and timelines (for example, landlord and tenant disclosure statements (s 19, s 21)), controls what landlords can recover from tenants (outgoings, capital costs, interest, depreciation — ss 38, 43–45), restricts certain lease terms (minimum lease term, bans on key-money — ss 26, 24, 54, 61), and creates a bespoke dispute-resolution process centred on a Commissioner with conciliation, inquiry and certification powers (Part 11; ss 12, 86–104). The Act also gives the Minister temporary emergency powers to suspend or modify parts of the Act during a declared COVID-19 emergency period (Part 1A; ss 11A–11H).\n\nStated purpose and immediate implications\n\n- The Act itself states its main objects are to \"enhance the certainty and fairness of retail shop leasing arrangements,\" improve dispute-resolution mechanisms and address other business tenancy matters (s 3). Mechanically, that is implemented by imposing mandatory disclosure and accounting duties on landlords and tenants, limiting what landlords may charge or recover, prescribing procedures for rent review and valuation, providing tenant protections against relocation, demolition and disruption, and establishing an administrative route (Commissioner) before access to court (Part 11, ss 85–105). The Minister may override or modify the Act temporarily in an emergency (ss 11B–11C). These are the concrete instruments the law uses to pursue the stated objects.\n\nWho is affected and who decides\n\n- Affected parties: landlords, tenants, proposed assignees, guarantors, valuers, auditors, legal practitioners, and persons acting for landlords or tenants (definitions and coverage in s 5 and Part 1 generally). Specific exclusions apply (large shops, listed corporations, short leases, very long leases, and other regulatory exemptions — ss 6–8).\n- Decision-makers and enforcement: the Commissioner of Business Tenancies handles investigations, conciliation and inquiries (s 12). A Hearing Commissioner (a legally qualified person) may conduct inquiries (s 89(4)). Courts retain final adjudicative powers once the Commissioner issues a certificate allowing court proceedings (ss 85, 104–106). During a declared COVID-19 emergency, the Minister may issue a modification notice that overrides lease terms and parts of the Act for the notice period (ss 11B–11D). A disallowance mechanism in the Legislative Assembly can overturn modification notices (s 11H).\n\nWho pays and how behaviour changes (select examples)\n\n- Landlords must produce disclosure statements and supporting accounting material; tenants must receive the landlord's disclosure at least 7 days before entering the lease unless waived by independent certification (s 19). Producing disclosure, estimates of outgoings and auditor reports imposes accounting and administrative costs on landlords (ss 19, 39–41).\n- Restrictions limit landlords' ability to pass on certain costs to tenants: capital expenses, depreciation and interest on landlord borrowings cannot be charged to tenants (ss 43–45). Those restrictions shift those costs to landlords or require them to absorb them when leasing, which may change landlords' pricing, selection of tenants or investment decisions.\n- Rent review procedures are prescribed: reviews must state timing and formula (s 28), and where rent is to be market-based, a specialist retail valuer decides if parties cannot agree (s 29). Valuation costs are shared equally (s 29(1)(g)), and valuer confidentiality is strictly regulated (s 31), creating transaction-costs (valuer, possible Commissioner appointment) and safeguards for commercial information.\n- The Act limits tenant liabilities for undisclosed contributions and for unreasonable fitout/ refurbishment obligations (ss 22, 51). It bans \"key-money\" at grant, assignment, renewal or extension (ss 24, 54, 61) and caps sinking fund contributions and balances (ss 35–36). These protections alter bargaining leverage and the distribution of upfront and running costs between landlord and tenant.\n\nCompliance burden, incentives and administrative discretion\n\n- Compliance requirements are concrete: producing prescribed disclosure forms (s 19), tenant disclosure (s 21), estimates and twice-yearly expenditure statements and audited outgoings statements (ss 39–41), maintaining sinking-fund accounts and statements (ss 35, 36), and meeting timelines for supplying executed/registered leases (s 25). Failure to comply can expose parties to penalties and civil remedies (e.g. penalty units cited in ss 17, 19, 24, 31, 66).\n- The Commissioner has broad investigatory and enforcement powers (s 12), powers to enter and inspect premises (s 108), and authority to conduct conferences, inquiries and make enforceable orders (Part 11; ss 90–103, 116). The Minister’s emergency modification power is wide: it may suspend or modify parts of the Act and apply to excluded leases or other occupation arrangements (ss 11B(2)–(4)). That centralises significant discretion in the executive during an emergency while preserving Legislative Assembly oversight (s 11H).\n\nTrade-offs, costs and risks (mechanisms, not judgements)\n\n- Trade-offs and distributional effects: the Act transfers certain costs away from tenants (for example, capital costs, depreciation, interest — ss 43–45) and imposes disclosure, auditing and administrative costs on landlords (ss 19, 39–41). Those shifts can change landlords' incentive to invest in premises, alter lease pricing and affect the selection of tenants (s 26 may affect short-term tenancies). The banning of key-money (ss 24, 54, 61) removes direct upfront payments to landlords but allows landlords to recover legitimate transaction costs (s 24(4), s 54(4), s 61(4)).\n- Concentrated benefits and diffuse costs: many protections (disclosure, caps on pass-throughs, relocation safeguards) produce concentrated, identifiable benefits to tenants and create broadly distributed costs for landlords or their financiers (see ss 19; 22; 35–36; 48–49). The Act provides avenues for compensation and remedies where the law effectively limits private property rights: where a modification notice would amount to acquisition, compensation on just terms is available (s 11F).\n- Implementation risk and capacity: effective use of valuation procedures (ss 29–31), audit statements (ss 40–41) and dispute-resolution timelines (s 110 — 28-day duty to act quickly) depends on administrative resourcing. The Commissioner is given enforcement and investigatory powers (ss 12, 108) but the Act imposes statutory timeframes and reporting obligations that require execution.\n- Opportunity costs and substitution effects: because the Act restricts some contractual terms and cost recoveries (ss 22, 43–45), landlords and tenants may change behaviour — for example, moving away from small tenancies, changing leasing models, bundling costs differently, or opting for lease forms or business arrangements outside the Act's coverage where possible (see exclusions and emergency-modification ability in ss 6–8 and 11B(3)).\n\nDispute-resolution flow and access to courts\n\n- Parties must generally go to the Commissioner first; a certificate is required before bringing most retail tenancy claims to court (ss 85, 104). The Commissioner runs preliminary conferences, conciliations and inquiries with limited formality and powers to make binding orders (Part 11; ss 90–103). Monetary thresholds and appeal rights are specified (ss 98(2), 105–106, 119–121). This creates an administrative-first pathway and a filtered route to litigation.\n\nEmergency powers and scope change (short note)\n\n- The Act now includes a Part enabling the Minister to suspend or modify all or part of the Act during the COVID-19 emergency period, to extend the Act to occupation arrangements otherwise excluded, to impose negotiation obligations on landlords, and to incorporate other instruments by reference (ss 11A–11G). The Minister’s modification notices override inconsistent lease provisions while in force (ss 11B–11D). Compensation and Legislative Assembly disallowance are provided for (ss 11F, 11H).\n\nSelected section references (examples used above)\n\n- Objects stated: s 3; exclusions: ss 6–8; Act overrides lease provisions: s 9; landlord disclosure: s 19; tenant disclosure: s 21; ban on key-money and recoveries: ss 24, 54, 61; minimum 5-year term: s 26; rent reviews and market rent: ss 28–31; sinking funds: ss 35–37; outgoings and accounting: ss 38–41; capital costs/depreciation/interest not recoverable: ss 43–45; relocation, demolition, damaged premises: ss 48–50; assignment and consent regime: ss 53–59; Commissioner powers and dispute-resolution: ss 12, Part 11 (ss 82–117); Minister emergency power and modification notices: ss 11A–11H.\n\nNet effect in plain terms\n\n- The Act creates a regulated framework that limits certain landlord contract terms, requires disclosure and accounting, prescribes rent-review procedures and valuation processes, sets out administrative dispute-resolution as a precondition to many court claims, and empowers the Minister to alter the regime for business tenancies during a COVID-19 emergency. These mechanics shift legal and economic responsibilities between landlords and tenants, increase administrative and compliance activity (valuers, auditors, disclosure forms, Commissioner procedures), and concentrate substantial short-term modification discretion in the Minister during emergencies (Part 1A; ss 11B–11C). The Act furnishes statutory remedies and penalties to enforce the rules (numerous provisions cited above)."},"kimi_summary":{"_metrics":{"completionTokens":794},"content_quality":"ok","complexity_score":8,"scope_assessment":{"changed":true,"description":"The Act has grown significantly beyond its original 2003 retail shop leasing focus. The 2020 amendments added Part 1A (emergency ministerial powers for COVID-19), Division 2A (mandatory alternative dispute resolution for repossession), and Division 2B (criminal offences for misrepresentation in emergency negotiations). These emergency provisions apply to 'business premises' and 'occupation arrangements' beyond retail shops, substantially broadening scope. The 2024 amendments further refined dispute resolution processes."},"complexity_factors":["144 sections across 14 Parts with multiple Divisions","Extensive defined terms in section 5 including nested definitions (e.g., 'retail shop' within 'retail shopping centre' within 'business premises')","Numerous 'deemed provisions' that rewrite lease terms automatically (sections 25-81)","Complex cross-references between Parts—especially Part 1A emergency powers interacting with general lease rules and the Law of Property Act 2000","Multiple conditional exceptions: sections 6-8 exclude various shops and leases; section 26 has 6 subsections with 4 separate exceptions to the 5-year minimum term","Emergency modification notices (Part 1A) create temporary, revocable overlays on the entire Act with continuing effect provisions (section 11G)","Dispute resolution pathway with mandatory pre-court steps, certificate requirements, and jurisdictional thresholds","Retrospective application provisions (section 77) for unconscionable conduct claims"],"plain_english_summary":"This is the **Northern Territory's main law protecting retail and business tenants** from unfair treatment by landlords. It covers shops in retail centres and other business premises.\n\n**What it does:**\n\n**For retail shop leases**, the Act creates a comprehensive set of protections:\n- **Before signing**: Landlords must provide disclosure statements about the lease terms, costs, and any hidden charges. Tenants can walk away within 6 months if disclosure is inadequate. \"Key-money\" (secret payments for getting a lease) is banned.\n- **Rent rules**: Rent reviews must follow clear formulas. Tenants don't pay rent until the landlord completes promised fit-out work. Landlords can't charge for capital costs, depreciation, or their own loan interest.\n- **Outgoings**: Landlords must provide detailed estimates and audited statements of operating costs. Tenants only pay their fair share based on shop size.\n- **During the lease**: Tenants get compensation if landlords disrupt their business through construction, access restrictions, or poor maintenance. Relocation and demolition clauses are heavily regulated—tenants get notice, compensation, and can terminate.\n- **Assignment and renewal**: Rules limit when landlords can refuse consent to sell the business. Renewal key-money is banned.\n- **Shopping centres**: Extra rules apply—turnover information stays confidential, marketing plans must be shared, and tenants collectively control core trading hours.\n\n**For all business tenancies**, the Act provides repossession procedures requiring court orders and proper written notice.\n\n**Dispute resolution**: The Commissioner of Business Tenancies runs a mandatory conciliation process. Most claims must go through this before court. The Commissioner can investigate, hold hearings, and make binding orders.\n\n**Emergency powers (Part 1A)**: Added in 2020, this lets the Minister temporarily modify lease rules during COVID-19 or other declared emergencies—including rent relief and mandatory good-faith negotiations.\n\n**Unconscionable conduct**: Both landlords and tenants can be sued for seriously unfair dealing.\n\n**Who it affects**: Retail tenants in shops under 1,000m² (with exceptions for large corporations, cinemas, very short leases, etc.). Business tenants more broadly for repossession rules."}},"importantCases":[],"_links":{"self":"/api/acts/business-tenancies-fair-dealings-act-2003","history":"/api/acts/business-tenancies-fair-dealings-act-2003/history","analysis":"/api/acts/business-tenancies-fair-dealings-act-2003/analysis","conflicts":"/api/acts/business-tenancies-fair-dealings-act-2003/conflicts","importantCases":"/api/acts/business-tenancies-fair-dealings-act-2003/important-cases","documents":"/api/acts/business-tenancies-fair-dealings-act-2003/documents"}}