Business Tenancies (Fair Dealings) Act 2003

The Act repeatedly turns defined legal concepts into operational levers. Key definitional and conceptual entries that determine the reach and operation of provisions include:

• Retail shop, retail shop lease, business lease and business premises (s 5). “Retail shop” is a use‑based definition (sale/hire of goods by retail, retail provision of services, or businesses in a retail shopping centre) and includes prescribed classes. A “retail shop lease” is any arrangement under which occupation is granted for valuable consideration for that purpose, irrespective of whether it is exclusive or written (s 5).

• Retail shopping centre (s 5). The Act defines a shopping centre as a cluster of premises meeting a set of ownership/occupation and spatial attributes (eg, at least five retail premises, common landlord or owner, physical proximity or common areas). Many Part 9 provisions apply only if the shop is in a retail shopping centre (s 65).

• Outgoings and sinking funds (s 5; ss 35-37, 38-41). “Outgoings” is defined to capture landlord expenses directly attributable to operation, maintenance, repair of the building or, for a shopping centre, associated buildings and areas, and rates and taxes payable by the landlord (s 5). Sinking funds are regulated by detailed implied terms (ss 35-37), including limits on use, investment, reporting and caps on contributions (s 36).

• Fitout obligations and special rent (ss 27, 33). “Fitout obligations” are landlord obligations to provide finishes and equipment before tenant possession (s 5). The Act permits special rent to recover landlord‑provided fitout costs but imposes fitout completion safeguards (s 27, s 33).

• Key‑money (s 5; ss 24, 54, 61). Defined as money or benefit paid as a premium without real consideration in connection with grant, renewal, extension or assignment. The Act categorically prohibits such payments at several transaction points.

• Current market rent, specialist retail valuer and valuation process (ss 28-31). A “specialist retail valuer” must have at least five years’ retail valuation experience (s 5). Where rent reviews are to market, the Act defines the valuation basis (effective rent, excluding tenant goodwill and tenant fixtures) and prescribes the appointment, powers and confidentiality obligations of valuers (ss 28-31).

• Commissioner, conferences, inquiries and certificates (ss 12-13; Part 11). The Commissioner administers the scheme, conducts investigations, publishes model leases and acts as enforcement agency for fines recovery (ss 12, 16). Retail tenancy claims generally must go through conciliation and, if unresolved, an inquiry; only then can a certificate issue enabling court proceedings (ss 85, 86, 104).

• Emergency modification notice and emergency period (Part 1A, ss 11A-11H). During the COVID‑19 public health emergency or an EMA declaration, the Minister may issue a modification notice to modify or suspend all or parts of the Act and regulate occupation arrangements excluded from normal coverage (s 11B). Modification notices can incorporate other instruments and impose obligations (for example, minimum negotiation before notices to quit , s 11B(5)). They must be tabled and are subject to disallowance (ss 11B(8), 11H).

Several drafting devices are central to operation: “taken to include” clauses imply terms into existing leases (eg, sinking funds, outgoings statements, advertising statements , see ss 35, 39-41, 71); voiding provisions strike down inconsistent lease terms (s 9); mandatory timelines and penalties are used to create enforceable duties (eg, disclosure timing s 19(1), valuer confidentiality penalties s 31(1)); and administrative procedure (conferences, inquiries, certificates) filters access to courts and structures enforcement (Part 11, ss 85, 104).

These concepts determine both the Act’s coverage (which leases and premises) and the mechanics for enforcement and remediation (Commissioner powers, court jurisdiction, penalties). For practical compliance, attention to definitions (eg, whether the premises are a retail shopping centre under s 5) will determine the applicability of Part 9 and many other provisions.

The Act allocates duties, rights and processes across a discrete set of actors. Named categories include:

• Landlords of retail shops and business premises. The Act places primary disclosure, reporting and conduct obligations on landlords: provision of the proposed lease at negotiation (s 17), landlord's disclosure statements (s 19), outgoings estimates and expenditure statements (ss 39-40), sinking fund accounting and auditor’s reports (ss 35(h)-(j), 36), notice obligations for alterations/refurbishment/relocation/demolition (ss 46-49) and limits on recoverable costs (ss 34, 43-45). Landlords also may be required to negotiate for minimum periods under a Ministerial modification notice in an emergency (s 11B(5)).

• Tenants (including subtenants and guarantors). Tenants receive statutory protections (termination rights for non‑disclosure s 20), limits on passing on undisclosed fitout contributions (s 22), rights to refuse coercive use of nominated advisers (s 64), confidentiality and turnover protections in shopping centres (s 66), and protections around relocation, demolition and damaged premises (ss 48-50). Tenants also have duties: to provide a tenant’s disclosure statement (s 21) and to comply with procedures for assignment and consent when assigning (ss 55-57).

• Proposed assignees and assignors. Assignment is regulated: tenants must provide prospective assignees with the landlord’s disclosure (s 56(a)) and may supply an assignor’s disclosure (s 56(b)-(c)). Assignors and guarantors are protected from post‑assignment liability where an assignor’s disclosure is provided and accurate (s 58).

• Specialist retail valuers and auditors. Valuers are given procedural roles and constrained confidentiality duties; misuse or disclosure of valuation material attracts criminal penalties and compensation liabilities (s 31). Auditors preparing outgoings or advertising statements must hold public practice certificates and provide reports accompanying statements (ss 40(e), 71(d)).

• Commissioner of Business Tenancies and delegates. The Commissioner (the Commissioner of Consumer Affairs unless another is appointed , s 12(1)-(2)) carries investigatory, publishing, dispute‑resolution and enforcement duties (s 12(3)). The Commissioner runs conferences, inquiries and issues certificates (Part 11), may inspect premises and documents (s 108), and may intervene in court proceedings (s 140).

• Courts and tribunals. The Local Court and Supreme Court have jurisdictional roles (s 105). During the emergency period the Local Court must refer eviction applications for alternative dispute resolution to NTCAT unless exceptional circumstances apply (s 132B). The Commissioner’s orders can be registered and enforced as Local Court orders (s 116). Appeals from Commissioner orders go to the Local Court (s 119).

• Professional advisers and agents. Legal practitioners, accountants and conveyancing agents interface with statutory certificates and disclosure waivers (ss 19(6), 26(4), 64); landlords’ agents may receive service of notices and accept payments as sufficient (s 137). Agents holding security deposits are subject to the Agents Licensing Act regime where specified (s 63(1)).

• Regulatory and legislative bodies. The Minister (Part 1A) has emergency modification powers (ss 11B-11H); the Legislative Assembly can disallow modification notices (s 11H). The Act cross‑references other statutory regimes (Law of Property Act 2000, Land Title Act 2000, Agents Licensing Act 1979, Competition and Consumer Act 2010).

Exclusions and scope shaping: the Act excludes large or specified shops and leases by reference to lettable area and corporate status (s 6), short and very long leases or leases predating commencement (s 7), and permits regulation to exempt other classes (s 8). Those exclusions determine which landlords and tenants fall outside the retail shop framework.

Who pays and who decides. The Act allocates record‑keeping and disclosure costs to landlords (eg, producing disclosure statements and outgoings statements, s 19, 40) and valuation/audit costs in many instances are initially shared or allocated as the Act prescribes (eg, valuation costs split equally s 28(8), s 29(1)(g); valuation costs for tenant‑requested early determination allocated per s 30(1)(e)-(f)). The Commissioner decides procedural outcomes in conferences and inquiries and issues certificates that gate court access (Part 11).

The Act inserts prescriptive duties and confers specific rights in statutory form. They are extensive; the following are the most operational:

Pre‑contract and disclosure duties

• Proposed lease availability at negotiation stage: landlords must possess and make available a copy of the proposed lease to prospective tenants when negotiations start (s 17). Penalty: 100 penalty units.
• Landlord’s disclosure statement: landlords must give tenants a written landlord's disclosure statement at least seven days before the lease is entered into, subject to a waiver by independent legal practitioner certificate (ss 19(1), 19(6)); the form and content are prescribed (s 19(2)-(5)).
• Tenant’s disclosure statement: tenants must give a tenant’s disclosure statement within seven days after receipt of the landlord’s statement (s 21(1)-(2)).

Tenant remedies and termination rights

• Termination where landlord fails to disclose or disclosure is materially false or incomplete: tenant may terminate within six months after entering the lease unless landlord acted honestly and reasonably and tenant is in substantially the same position (s 20).

Contract content and implied terms

• Implied lease content for registration/delivery: the lease is taken to include timeframes for stamping, lodging for registration and delivery of copies (s 25).
• Minimum 5‑year term rule: combined initial term and options must total at least five years unless the prospective tenant obtains an independent legal or accounting certificate explaining the effect (s 26).
• Fitout obligations and rent suspension: where tenant’s liability for rent commences on possession and landlord has fitout obligations, tenant not liable for rent before landlord substantially complies; landlord cannot deny possession because of incomplete fitout (s 27).
• Rent review requirements: reviews must specify timing and basis (s 28). If basis omitted, statutory fallback to agreed amount or if no agreement then valuation by a specialist retail valuer appointed by the Commissioner, with costs shared equally (s 28(7)). Market rent determination process detailed (s 29).
• Turnover rent and adjustments: turnover definitions exclude specified items (s 32(1)); adjustment rights and review frequency are regulated (ss 32(2)-(4)).

Restrictions on landlord‑recoverable costs

• Capital costs, depreciation, and interest on landlord borrowings not recoverable from tenant (ss 43-45).
• Outgoings recovery allowed only under lease terms that specify what is recoverable and how apportioned; advertising/promotion costs are not outgoings (ss 38, 68).
• Outgoings transparency: landlords must provide estimates and expenditure statements before lease and during each accounting period and give outgoings statements with auditor’s reports (ss 39-40).
• Sinking funds: contributions must be paid into an interest‑bearing account with required statements and audited reports; limits on number of funds, percentage cap and overall cap apply (ss 35-36).

Assignment, renewal and key‑money prohibitions

• Consent to assignment: landlord may only withhold consent in limited circumstances (change of use, lack of financial resources/skills, or non‑compliance with prescribed information provisions) and must respond within 42 days or is taken to have consented (ss 53, 55).
• Key‑money prohibited at grant, assignment, renewal or extension; recipients must repay amounts accepted in breach (ss 24, 54, 61).

Protections for tenants’ business operations

• Notice and compensation for alterations causing adverse effects; landlord liable for reasonable compensation where access or customer flow is substantially affected, or for failure to maintain common areas in shopping centres (ss 46-47).
• Relocation protections: landlord must provide detailed proposals, notice, alternative shop offer on substantially same terms, relocation costs and termination rights (s 48).
• Demolition and damaged premises: minimum notice periods, entitlement to compensation where demolition not carried out within reasonable time and rent reduction or suspension when premises unusable (ss 49-50).
• Trade and employment freedoms: lease provisions preventing or restricting tenant’s right to employ persons of their choosing void, with limited exceptions (s 52); lease provisions that require trading at unlawful times are void (s 62).

Confidentiality and data

• Turnover information in shopping centres is confidential; unauthorised disclosure attracts serious penalties, though exceptions apply (s 66).

Dispute resolution and procedural rights

• Retail tenancy claims must generally go through Commissioner triage (application, conferences, possible inquiry) and a certificate is required before commencing court proceedings (ss 85, 86, 88-96, 104).
• Conciliation and inquiry procedures are defined (ss 90-109, 98-103). The Hearing Commissioner has broad powers to order monetary and non‑monetary relief (s 102). Costs are generally denied for successful applicants unless frivolous or vexatious (s 113).

Enforcement and administrative powers

• Commissioner investigatory and enforcement powers, including entry and inspection, summons and document production at inquiries (ss 12, 108, 100-101).
• The Commissioner can be a party to court proceedings and has enforcement role for fines recovery (ss 16, 140).

Emergency modifications and compensation

• Minister may suspend or modify the Act in an emergency period (s 11B); modification notices operate despite leases (s 11C) and may continue to have ongoing effect to preserve modified time periods (s 11G). Acquisition on just terms is expressly preserved where modifications would have that effect (s 11F).

These duties and rights create a statutory default regime that will be implied into leases where parties have not contracted otherwise within the Act’s permitted scope. The Act also invalidates lease terms that attempt to displace these defaults (s 9).

The Act attaches civil and criminal sanctions and provides routes for enforcement via the Commissioner and courts. Key enforcement mechanics and penalty provisions:

Criminal and penalty unit offences in the Act

• Failure to provide proposed lease at negotiation: maximum 100 penalty units (s 17).
• Failure to give landlord’s disclosure statement within the required time: maximum 100 penalty units (s 19(1)).
• Failure by tenant to give tenant’s disclosure statement: maximum 100 penalty units (s 21(1)).
• Misuse of valuation information by a specialist retail valuer: maximum 200 penalty units or imprisonment for 12 months; valuer also subject to compensation liability (s 31(1), (3)).
• Confidentiality breach of turnover information by landlord in retail shopping centre: maximum 200 penalty units or imprisonment for 12 months (s 66(1)).
• Compulsion to use landlord‑nominated legal/accounting/conveyancing services: maximum 50 penalty units (s 64(1)).
• Entry to business premises for repossession without court order: maximum 100 penalty units or imprisonment for 6 months (s 124).
• Obstructing Commissioner or authorised person exercising entry/inspection powers: maximum 100 penalty units or imprisonment for 6 months (s 108(4)).
• Contempt during proceedings (insulting or interrupting conciliator/Hearing Commissioner, disturbance): maximum 100 penalty units or imprisonment for 6 months (s 115).
• Offences during emergency negotiations: misrepresentation of financial position (s 132F) carries maximum 200 penalty units or imprisonment for 2 years; unauthorised disclosure of financial information obtained in negotiations carries maximum 500 penalty units or imprisonment for 5 years (s 132G(1)).

Civil recovery and automatic remedies

• Recovery as debt: sums or benefits accepted by landlord in contravention of key‑money prohibitions are recoverable as a debt by the tenant, whether or not there is a criminal conviction (ss 24(3), 54(3), 61(3)).
• Compensation and restitution orders: the Hearing Commissioner can order payment of money, refund, rectification of leases, performance of obligations, surrender of possession, assignment of rights or other remedies at inquiry (s 102).
• Compensation for misrepresentations: parties are liable to pay reasonable compensation for damage caused by knowingly false or misleading pre‑lease statements or representations (s 18).
• Registration and enforcement as court orders: Commissioner orders may be registered as Local Court orders and enforced accordingly (s 116).

Administrative and procedural enforcement

• The Commissioner is the enforcement agency for the Fines and Penalties (Recovery) Act 2001 (s 16), supporting fine recovery.
• The Commissioner has investigative functions and powers (s 12(3)(d); s 108 for entry/inspection; ss 100-101 for inquiry powers) and can intervene in court proceedings (s 140).
• Appeals: parties may appeal retail tenancy orders to the Local Court de novo (s 119) and can seek stay of orders pending appeal (s 121).

Limits on costs and legal fees

• Costs orders are generally disfavoured; conciliator or Hearing Commissioner must not normally order a party to pay costs, except where frivolous or vexatious (s 113). Where a plaintiff recovers less than 15,000 monetary units in court proceedings brought after a certificate, plaintiff is not entitled to legal costs unless reasonable grounds existed to believe the claim exceeded that threshold (s 107).

Interaction with other enforcement processes

• The Act expressly preserves acquisition on just terms where modification notices would acquire property otherwise than on just terms; compensation is payable and a court can determine the amount (s 11F).
• Enforcement in the context of eviction during emergency periods is channelled to NTCAT and the Local Court with ADR obligations (ss 132A-132E).

Practical enforcement implications

• Many remedies are administrative (orders, rectification, reallocation of costs) and recoverable through the Local Court upon registration of Commissioner orders (s 116). Criminal penalties are attached to specific confidentiality, disclosure, obstruction and certain bargaining behaviour.

References: penalties (ss 17, 19, 21, 31, 66, 64, 124, 108(4), 115, 132F-132G); Commissioner enforcement and powers (ss 12, 16, 108, 100-102, 116); compensation (ss 18, 20, 47, 49, 50); costs rules (ss 113, 107).

The Act is drafted to operate in an interlocking way with other Northern Territory and federal statutes and with regulatory regimes:

Explicit statutory interactions and incorporations

• Law of Property Act 2000: Part 1A (emergency modification notices) provides that where a modification notice brings an occupation arrangement into the Act’s operation, section 114 of the Law of Property Act 2000 applies (s 11E(2)). The section further addresses recoverable lessor costs under section 140 of the Law of Property Act 2000 during the emergency period (s 11E(4)) and extends notice periods under the Law of Property Act where the modification notice requires negotiation before notices to quit (s 11E(5)-(6)). It also suspends s 152 of the Law of Property Act for certain leases unless specific preconditions exist (s 11E(7)).

• Land Title Act 2000: the Act’s implied extensions of lease terms are not effective for Land Title Act purposes until registered; the Registrar‑General is not bound to inquire into or recognise term increases by operation of this Act (s 138(1)-(2)). Landlord must execute or vary leases for registration at the tenant’s request (s 138(3)).

• Agents Licensing Act 1979: security deposits held by landlords may be required to be held in an Agents Licensing Act trust account (s 63(1)(a)-(b)), which brings that statute’s trust account controls to bear.

• Corporations Act 2001 and other federal definitions: the Act uses Corporations Act definitions for exclusions (eg, listed corporation, subsidiary) in s 6(d).

• Competition and Consumer Act 2010 (Cth): Part 10 references an “applicable industry code” and “industry code” as defined in s 51ACA(1) of the Competition and Consumer Act 2010, permitting courts to have regard to such codes for unconscionable conduct determinations (s 76).

• Fines and Penalties (Recovery) Act 2001: the Commissioner is the enforcement agency for fines recovery under that Act (s 16).

Tribunals and courts

• Local Court and Supreme Court jurisdiction: the Act allocates monetary jurisdiction for unresolved retail tenancy claims between the Local Court and Supreme Court (s 105). The Local Court has a general jurisdiction to hear retail tenancy claims (s 105(1)) with the Supreme Court reserved for claims exceeding $200,000 (s 105(2)).

• NTCAT and Northern Territory Civil and Administrative Tribunal Act 2014: during the emergency period, the Local Court must refer eviction applications to NTCAT for ADR unless exceptional circumstances apply; NTCAT is to deal with the matter under its Part 4 Division 4 jurisdiction (ss 132A-132B).

Delegation and regulatory rules

• The Commissioner may delegate powers (s 13). The Commissioner may make procedural rules to assist handling applications (s 117). The Administrator may make regulations to carry out the Act and can prescribe penalties and infringement notice mechanisms (s 141).

Emergency modification notices and parliamentary oversight

• The Minister’s power to modify or suspend all or part of the Act during a specified emergency period (Part 1A) can override both leases and other arrangements (s 11C). Modification notices must be tabled in the Legislative Assembly and are subject to disallowance within three sitting days; disallowance has revivifying effects (ss 11B(8), 11H).

Consequential and saving provisions

• The Act repealed prior tenancy statutes (Schedule and s 142) and permits regulations for savings and transitional matters (s 143).

Practical effects of interaction

• Where the Act’s implied terms extend or modify rights that are then to be registered, there is a gap between statutory effect and land‑title registration (s 138) which can create title/priority practicalities. The emergency powers explicitly alter interplay with property law (s 11E) including cost recoverability and notice periods. The Commissioner's enforcement role and referral to tribunals create procedural linkages with court and tribunal systems (ss 16, 132A-132D).

References throughout: Law of Property Act interaction (s 11E); Land Title Act issues (s 138); Agents Licensing Act (s 63); Competition and Consumer Act code references (s 76); NTCAT referral (ss 132A-132B); regulations and delegation (ss 13, 117, 141).

The Act has been amended several times since assent. The source lists enactments and key amendment insertions and commencement dates. Highlights drawn from the endnotes:

• Original enactment: Business Tenancies (Fair Dealings) Act 2003, assent 22 October 2003; commenced 1 July 2004 (Endnotes: List of Legislation).

• 2007 amendments: Justice Legislation Amendment Act 2007 and Legal Profession (Consequential Amendments) Act 2007 made targeted amendments (Endnotes: List of Legislation).

• 2009 Unit Title Schemes amendments: changes to definitions and cross‑references were made by Unit Title Schemes Act 2009 (Endnotes).

• 2010-2013 amendments: a suite of amendments were made in 2010-2013, including matters to penalties and procedure (Consumer Affairs and Fair Trading Amendment (National Uniform Legislation) Act 2010; Justice Legislation Amendment (Penalties) Act 2010; Evidence (National Uniform Legislation) amendments) as reflected in general amendments in the endnotes.

• 2016 Local Court amendments: Local Court (Related Amendments) Act 2016 altered court jurisdictional references (s 105 amended, endnotes).

• 2020 Tenancies Legislation Amendment Act: inserted Part 1A (Minister’s emergency powers) and Division 2A/2B in Part 13; these changes were assented to 24 April 2020 and commenced 25 April 2020 (Endnotes and List of Amendments). The new Part 1A provisions (ss 11A-11H) are explicit additions, giving the Minister modification powers during COVID‑19 and other EMA declarations (s 11B insertion noted in amendments list).

• 2022 Justice and Licensing Legislation Amendment Act 2022: made further amendments with specified commencement (Endnotes).

• 2024 Justice and Other Legislation Further Amendment Act 2024: recent amendments include insertion of s 88A (Commissioner may cancel conference) and other procedural adjustments (Endnotes: List of Amendments). The endnotes indicate parts 9 and 10 commenced on 1 July 2024 while other parts are nominated as not commenced to date (Endnotes: List of Legislation).

• Formal and technical updates: the Interpretation Legislation Amendment Act 2018 made general formal amendments to multiple sections. Several sections have been amended repeatedly (see List of Amendments in endnotes): notable repeatedly amended sections include ss 5, 17-19, 28-31, 35-41, 47-61, 63-76, Part 11 procedural provisions and Part 13 repossession/ADR provisions, reflecting incremental legislative tuning.

• Review obligation: the Minister must review the Act as soon as possible after seven years from assent and table a report; the review requirement (s 144) survives and is part of the Act’s legislative architecture.

Practitioners should consult the endnotes for precise amendment citations and commencement dates for individual sections; the printed reprint notes list the enabling amending Acts and the sections they altered (ENDNOTES, List of Amendments and List of Legislation). The 2020 insertion of Part 1A is a material policy addition with operational consequences for emergency periods; the 2024 amendments introduced procedural tweaks including s 88A (cancellation of conferences).

References: endnotes List of Legislation and List of Amendments; specific insertions of Part 1A (No. 15, 2020, s 5) and s 88A insertion (No. 9, 2024, s 4); review requirement (s 144).

The statute text supplied does not name or record judicial decisions applying or construing the Act. The Act itself anticipates litigation pathways and sets procedural prerequisites and jurisdictional boundaries which shape litigation practice:

• Certification gatekeeping: most retail tenancy claims cannot proceed to court unless the Commissioner issues a certificate that a claim was not resolved by the Commissioner’s procedures (ss 85, 104). This administrative bottleneck shapes litigation timing and strategy.

• Adjudicative powers of Hearing Commissioner transferable to courts: a court hearing a retail tenancy claim may exercise the Hearing Commissioner’s Division 4 powers in addition to its own powers (s 106). That delegation of remedial machinery changes the relief available in court to mirror Commissioner powers.

• Appeal framework: appeals from Commissioner retail tenancy orders go to the Local Court de novo (s 119), and appeals may then proceed to the Supreme Court; time limits and reasons rules are supplied (s 119(5)-(6)). The Act anticipates de novo review rather than narrow appellate review.

• Costs regime and litigation incentives: the Act imposes limits on costs awards in Commissioner proceedings (s 113) and constrains entitlement to legal costs in court actions where recovery is modest (s 107). These rules affect litigant incentives to commence proceedings and to engage lawyers.

• Emergency ADR and tribunal referrals: during the emergency period, eviction applications require referral to NTCAT for ADR (s 132B). This procedural diversion is interlocutory and has been built into the statutory ADR ladder.

Because the source contains no case law, researchers and practitioners must consult court databases and reported decisions to find how courts have interpreted key concepts such as “current market rent” (ss 28-30), the scope of “unconscionable conduct” in Part 10 (ss 78-81) and the interplay between implied terms and registered leases under Land Title Act constraints (s 138). Where the Act provides mechanistic rules (appointment of valuers, confidentiality duties, timeframes), litigation often centres on interpretation of those mechanics and on whether statutory preconditions (eg, disclosure timelines, certificate issuance) have been satisfied.

Practical note: the Commissioner’s power to intervene in proceedings and become a party (s 140) and the ability to register Commissioner orders as Local Court orders for enforcement (s 116) means that many disputes will be resolved administratively or will involve the Commissioner as an active procedural participant rather than being pure private litigation.

Reference: gatekeeping and certificates (ss 85, 104); transfer of Hearing Commissioner powers to courts (s 106); appeals (s 119); ADR/NCTAT referrals during emergency (ss 132A-132D); Commissioner intervention (s 140).

The Act contains several provisions that commonly catch practitioners, property owners and tenants unprepared. Key “watch‑outs” grounded in the statutory text:

1. Implied terms automatically insert obligations into leases. The Act repeatedly states that a retail shop lease is “taken to include” specified provisions (eg, sinking fund, outgoings estimates and statements, advertising statements, assignment procedures , ss 35, 39-41, 70-71, 55-56). Parties cannot simply rely on silence in a lease to avoid these defaults; in many cases the Act voids inconsistent terms (s 9(1)-(3)).

2. Act overrides lease provisions. A lease provision inconsistent with the Act is void to the extent of the inconsistency (s 9(2)). That includes contractual clauses that purport to require key‑money or recover certain landlord costs (ss 24, 43-45). Drafting must expressly conform lease language to the Act’s defaults where intended.

3. Disclosure timing waivers are narrow but effective. The seven‑day landlord disclosure requirement (s 19(1)) can be waived where an independent legal practitioner (not acting for the landlord) certifies that the prospective tenant has been informed and understands the effect of the section (s 19(6)). That produces a simple but important compliance workaround that must be used correctly.

4. Minimum 5‑year term can be avoided by certificate,but the certificate must be from an independent legal practitioner or accountant and must explain the effect (s 26(4)). Using such certificates improperly will leave the lease extended by operation of law (s 26(3)).

5. Assignment consent implied approval if no response in 42 days. The landlord is taken to have consented if it has not notified consent or withholding within 42 days after a written request, provided the tenant has complied with the information provisions (s 55(c)(ii)). Landlords who miss that window may inadvertently lose a veto.

6. Valuation process and confidentiality traps. Where rent review defaults to a specialist retail valuer, the valuer may compel information from landlord and tenant (s 29(1)(e)), and misuse of such information attracts a serious penalty (s 31(1)). Parties must carefully manage information provided to valuers and insist on confidentiality protocols.

7. Sinking fund caps and account rules. Landlords cannot require contributions in a shopping centre in excess of 5% of the landlord’s estimated outgoings for the year (s 36(3)), cannot establish more than one fund for shops in the same building (s 36(2)) and cannot accept contributions if the fund’s balance exceeds 250,000 monetary units (s 36(4)). Landlords who aggregate or commingle funds risk penalties and repayment obligations on destruction/demolition (s 37).

8. Turnover and advertising classification. Advertising and promotion costs are not “outgoings” for the purposes of s 38(1) unless the lease expressly makes them so; separate advertising statements and auditor’s reports are required where tenants contribute to advertising plans and expenditure (ss 68-71). Mislabeling costs as outgoings or failing to provide statements will breach the Act.

9. Emergency modification notices can alter statutory defaults and have continuing effect. During an emergency period the Minister can set aside parts of the Act (including sections 6-8) and regulate occupation arrangements otherwise excluded (s 11B(2)-(3)). Modification notices can incorporate other instruments and their modified time periods can continue after expiry by s 11G(1). They are subject to parliamentary disallowance (s 11H), but until disallowed they override leases (s 11C).

10. Statutory protections may not be reflected in land registration. Extensions of lease terms by operation of the Act do not automatically alter registered titles; registration is required for Land Title Act consequences (s 138(1)-(3)). Practitioners must not assume unregistered statutory term extensions change priority or registerable interests.

11. Certificates are procedural gatekeepers to court. Parties must follow Commissioner procedures; without a certificate (ss 85, 104) the court will generally not have jurisdiction to hear a retail tenancy claim. This can postpone or preclude immediate litigation.

12. Confidentiality obligations carry criminal sanctions. Disclosure of tenant turnover information in shopping centres is criminalised (s 66(1)) though there are express exceptions (s 66(2)). Landlords, managers and advisers need strict internal controls.

13. Limits on recoverable landlord financing costs. Lease clauses that require tenants to pay interest or other landlord borrowing charges are void (s 45). Landlords who try to shift these costs contractually will have that part of the clause struck out.

14. Costs exposure in court if recovery below threshold. Where a plaintiff recovers less than 15,000 monetary units in court, the plaintiff cannot usually recover legal costs (s 107), which influences litigation calculus and settlement incentives.

Each of these “gotchas” flows from a specific statutory mechanism: implied terms and voiding rules (s 9 and multiple “taken to include” clauses), strict timelines with consequences (eg, 42‑day assignment response s 55), criminal sanctions for confidentiality/obstruction (s 66, s 108(4)), and the Commissioner’s gatekeeping (ss 85, 104). Contract drafters and transaction managers must therefore reconcile leases to the Act, implement disclosure workflows, manage valuation and audit supply chains, and ensure ADR and court preconditions are respected.

Operational compliance requires integrating the Act’s procedural, disclosure and documentary obligations into transaction workflows and lease management systems. Practical steps grounded in the Act’s text:

1. Pre‑lease documentation and procedures

• Maintain a current proposed lease template and make it available at market or negotiation stage (s 17). Keep a copy on file and ensure a copy is produced to prospective tenants as soon as negotiations commence.
• Prepare and provide a landlord’s disclosure statement at least seven days before the lease is entered into (s 19(1)). Ensure the content matches the prescribed form or, at minimum, includes all items the prescribed form specifies (s 19(2)-(4)). Retain dated proof of delivery.
• If a tenant requests and an independent legal practitioner or accountant is to provide a time‑limit waiver (for disclosure or minimum term), obtain a properly executed certificate from an adviser who is not acting for the landlord (ss 19(6), 26(4)). Keep the certificate on record.

2. Tenant disclosures and assignment workflows

• Require tenants to provide tenant’s disclosure statements within seven days of receiving the landlord’s disclosure (s 21(1)), and incorporate this deadline into lease checklists.
• When a tenant proposes assignment, ensure the tenant provides the most recent landlord’s disclosure to the proposed assignee and any assignor’s disclosure if required; their provision triggers protections for former tenants and guarantors (ss 56-58). Landlords should prepare standard information packages to comply with 14‑day request timelines (s 56(e)).

3. Rent review and valuation practices

• Ensure leases specify rent review timing and formula (s 28(1)-(2)). If market rent is a possible basis, include detailed procedures and nomination processes that align with s 29 to avoid default appointment by the Commissioner.
• Where valuation is necessary, plan for equal costs sharing (s 28(8), s 29(1)(g)). If providing valuation information, annotate confidentiality protections and restrict use to the valuation purpose; breaches attract penalties (s 31).

4. Outgoings, sinking funds and accounting

• Draft explicit lease schedules enumerating recoverable outgoings, apportionment methods and mechanisms for recovery (s 38(1)). Exclude advertising/promotion from “outgoings” unless parties want them captured and follow Part 9 rules if in a shopping centre (s 68).
• For sinking funds: limit use to major repairs and maintenance in accordance with s 35(e), maintain a single fund per building or shopping centre (s 36(2)), respect the 5% contribution cap and 250,000 monetary unit limit (s 36(3)-(4)), and keep full, auditable records with periodic statements and certified reports to tenants (s 35(h)-(j)).
• Provide tenants with written estimates of outgoings before entering leases and at least one month before each accounting period; make the expenditure statement available twice per accounting period with itemisation as prescribed (s 39).

5. Security deposits and trust accounting

• Hold tenant security deposits in an appropriate interest‑bearing account, either under the Agents Licensing Act trust account or other interest‑bearing account, and account for interest per s 63. If holding outside an Agents Licensing trust account, be able to account to tenants for interest and allow ADI guarantees unless unreasonable refusal occurs (s 63(1)(c)).

6. Transactional prohibitions and conduct

• Do not seek or accept key‑money at grant, renewal, extension or assignment; if any such payment or benefit was taken, be prepared to refund the tenant as a debt (ss 24, 54, 61).
• Ensure tenants are not compelled to use landlord‑nominated advisers; any compulsion can invalidate certificates and generate penalties and refund obligations (s 64).

7. Relocation, refurbishment and demolition procedures

• When planning alterations that may adversely affect tenants, provide at least two months’ notice and consult (s 46). For relocation or demolition scenarios, follow the detailed procedural notice, alternative shop offer and compensation obligations (ss 48-49).

8. Dispute resolution readiness

• For any potential retail tenancy claim, lodge applications with the Commissioner in the prescribed form within three years of the date the liability arose (s 86(3)-(5)). Be prepared for preliminary conciliation conferences and ensure representatives have authority and necessary documents (ss 88, 90-94).
• Recognise that a certificate is required before most court proceedings (s 85); plan litigation strategy with the Commissioner’s procedural timetable in mind.

9. Emergency period obligations and negotiation

• Monitor if a modification notice is in force during an emergency period; if so, apply its terms (s 11B(2)-(3)) and comply with minimum negotiation periods before a notice to quit if mandated (s 11B(5)). Track tabled notices and potential disallowance by the Legislative Assembly (s 11B(8), s 11H).

10. Record‑keeping and audit trails

• Maintain complete records of disclosure statements, outgoings estimates and statements, auditor reports, sinking fund accounts, lease variations, valuation requests and communications with the Commissioner. These records support compliance with audit and disclosure obligations (ss 35(h)-(j), 39-41, 40(e)) and are necessary if inquiries, subpoenas or entry/inspection are required (ss 100-108).

11. Confidentiality of tenant turnover data

• Implement strict internal controls on turnover information in shopping centres: limit access and use for enumerated purposes only, obtain tenant consent for permitted disclosures, and ensure legal excuses for compelled disclosure are documented (s 66(1)-(2)).

12. Training and policies for staff and agents

• Ensure leasing agents, centre managers and legal teams understand the 42‑day assignment response rule (s 55), the Commissioner mediation/inquiry procedures (Part 11), penalty exposure for certain conduct (ss 31, 66, 132F-132G) and the mandatory content and timing of disclosure and financial statements.

13. Drafting and contractual alignment

• Where parties wish to deviate from statutory defaults (eg, shorter term than five years, alternative sinking fund mechanisms), ensure an allowed waiver or certificate is used where the Act permits (s 26(4)) or expressly negotiate permitted bases for rent reviews and outgoings that are compliant with s 28 and s 38.

Summary practical checklist (to be adapted for each transaction): confirm retail shop status (s 5); supply proposed lease at negotiation (s 17); deliver and retain landlord’s disclosure statement (s 19); obtain and file tenant’s disclosure (s 21); specify rent review formula and schedule (s 28); follow assignment information and timing rules (ss 55-56); manage sinking fund and outgoings accounting (ss 35-41); prepare for Commissioner dispute processes (Part 11); track emergency modification notices (Part 1A).

Complying with the Act is both documentary (forms, statements, auditor reports) and procedural (timings, conferences, valuations). Align internal lease templates and workflows with the Act’s “taken to include” terms and preserve documentary evidence for statutory timings and disclosures.