Part 12Miscellaneous

Part 12—Miscellaneous 75—Vexatious acts A party to a retail shop lease must not, in connection with the exercise of a right or power under this Act or the lease, engage in conduct that is, in all the circumstances, vexatious. 76—Abandoned goods (1) If a retail shop lease terminates, is terminated or otherwise expires, and goods are left on the premises that were subject to the lease, then— (a) the lessor may, when at least two days have passed since the lessor took possession of the premises, remove, and destroy or dispose of, goods— (i) if they are perishable foodstuffs; or (ii) if their value is less than a fair estimate of the cost of their removal, storage and sale; but (b) if the goods are not liable to destruction or disposal under paragraph (a), the lessor must store the goods in a safe place and manner for at least 60 days. (2) The lessor must, within seven days after storing goods or having goods stored under this section— (a) give notice of the storage of the goods to— (i) if the lessee has left a forwarding address—the lessee; and (ii) if another person has, to the knowledge of the lessor, an interest in the goods and the person's name and address are known to, or reasonably ascertainable by, the landlord—that person; and (b) publish notice of the storage of the goods in a newspaper circulating generally throughout the State. (3) A notice must be in the form prescribed by regulation for the purposes of this section. (4) A person who is entitled to possession of goods stored under this section may reclaim the goods by paying to the lessor— (a) the reasonable costs of removing and storing the goods; and (b) the reasonable costs of giving notice under subsection (2)(b); and (c) any other reasonable costs incurred by the lessor as a result of the goods being left on the premises. (5) If the goods are not reclaimed within the 60 day period, the lessor must, as soon as practicable after the end of that period, have the goods sold by public auction. (6) On the sale of the goods by public auction, the lessor— (a) may retain out of the proceeds of sale— (i) the reasonable costs of removing, storing and selling the goods; and (ii) the reasonable costs of giving notice under subsection (2)(b); and (iii) any other reasonable costs incurred by the lessor as a result of the goods being left on the premises; and (iv) any amounts owed to the lessor under the lease; and (b) pay the balance (if any) to the owner, or if the identity and address of the owner are not known to, or reasonably ascertainable by, the lessor, to the Commission for the credit of the Fund. (7) If goods are sold by public auction under this section, the purchaser acquires a good title to the goods in defeasance of— (a) the lessee's interest in the goods; and (b) the interests of others (apart from the lessee) unless the purchaser has actual notice of the interest before purchasing the goods. (8) If a dispute arises between a lessor and lessee about the exercise of powers conferred by this section, the Magistrates Court may, on application by either party to the dispute, make orders resolving the matters in dispute. (9) In this section— goods does not include the fittings, fixtures or fit out of a retail shop. 77—Exemptions (1) The Minister may, on application by an interested person, grant an exemption from all or any of the provisions of this Act in relation to— (a) a particular retail shop lease or proposed retail shop lease; or (b) retail shop leases of a particular class; or (c) a particular retail shop or retail shops of a particular class. (2) The Magistrates Court or the Commission may, on application by an interested person, grant an exemption from all or any of the provisions of this Act in relation to— (a) a particular retail shop lease or proposed retail shop lease; or (b) a particular retail shop or proposed retail shop. (3) An exemption may be granted on conditions the exempting authority considers appropriate. (4) A person must not contravene a condition of an exemption. Maximum penalty: $800. 78—Annual reports (1) The Commission must, on or before 30 September in each year, deliver to the Minister an annual report— (a) containing a report on— (i) the administration of this Act during the financial year ending on 30 June in that year; and (ii) the administration of the Fund during the financial year ending on 30 June in that year; and (b) containing a copy of the accounts of the Fund last audited by the Auditor‑General. (2) The Registrar must, on or before 30 September in each year, deliver to the Minister an annual report on— (a) the work of the Registrar and the Magistrates Court under this Act during the financial year ending on 30 June in that year; and (b) other matters that are in the opinion of the Registrar of sufficient interest to lessors and lessees to be included in the report. (3) The Minister must, within 12 sitting days after receiving a report under this section, have copies of the report laid before both Houses of Parliament. 79—Time for prosecutions (1) A prosecution for an offence against this Act must be commenced within two years after the date the offence is alleged to have been committed. (2) However, the Minister may, in a particular case, extend the period for bringing a prosecution but not so that the prosecution may be commenced more than five years after the date the offence is alleged to have been committed. (3) A document apparently signed by the Minister and stating that the Minister allows an extension of the period for commencing a particular prosecution will be accepted, in the absence of proof to the contrary, as proof of the extension of time for commencing the prosecution. 80—Regulations (1) The Governor may make such regulations as are contemplated by this Act or as are necessary or expedient for the purposes of this Act. (2) Without limiting the generality of subsection (1), the regulations may— (a) be of general or limited application; and (b) confer powers or impose duties in connection with the regulations on the Minister or the Commission; and (c) prescribe codes of practice to be complied with by lessors and lessees; and (d) prescribe fees in respect of any matter under this Act and provide for their payment, recovery or waiver; and (e) exempt a specified person or class of persons, or a specified transaction or class of transactions, from compliance with this Act or a specified provision of this Act, either absolutely or on conditions or subject to limitations; and (f) make provision of a saving or transitional nature consequent on the commencement of specified provisions of this Act or specified regulations under this Act; and (g) make different provision according to the classes of persons, or the matters or circumstances, to which they are expressed to apply; and (h) incorporate, adopt, apply or make prescriptions by reference to, with or without modifications, any document formulated or published by any body or authority as in force at a particular time or from time to time; and (i) impose penalties not exceeding $2 000 for contravention of a regulation. (3) If a document formulated or published by any body or authority as in force at a particular time or from time to time is incorporated, adopted, applied or referred to in the regulations— (a) a copy of the document must be kept available for public inspection, without charge and during ordinary office hours, at an office or offices specified in the regulations; and (b) evidence of the contents of the document may be given in any legal proceedings by production of a document apparently certified by the Minister to be a true copy of the document. 81—Amendment of the Landlord and Tenant Act (1) Part 4 of the Landlord and Tenant Act 1936 (the former legislation) is repealed. (2) However— (a) the former legislation continues to apply, subject to modifications prescribed by regulation, to retail shop leases entered into before the commencement of this Act (including such a lease that is renewed after the commencement of this Act under a right or option of renewal conferred before the commencement of this Act); but (b) if the retail shop lease creates a periodic tenancy, this Act applies to the lease as from the beginning of the first period after the first anniversary of the commencement of this Act as if there were a novation of the lease on that date. (3) The regulations made for the purposes of subsection (2)(a) may provide that specified provisions of this Act apply to a retail shop lease entered into before the commencement of this Act. (4) The Fund established under the former legislation is dissolved and the money constituting that Fund at the commencement of this Act is incorporated in the Fund established under this Act. (5) References in the former legislation to the Fund established under that legislation are to be construed (so far as the relevant provisions give rights or impose obligations on parties to leases) as references to the Fund under this Act. Schedule—Casual Mall Licensing Code 1—Interpretation (1) In this Schedule, unless the contrary intention appears— adjacent lessee, in relation to a casual mall licence area, means a lessee of a retail shop that is in the same retail shopping centre and is situated in front of or immediately adjacent to the casual mall licence area; casual mall licence means an agreement under which a person grants, or agrees to grant, to another person a right to occupy a designated part of a mall area for the purposes of the sale of goods or the supply of services to the public, where the total number of days the person is permitted to occupy the area does not exceed 180 days; casual mall licence area, in relation to a casual mall licence, means the part of the mall area in respect of which a person is granted a right of occupancy under the casual mall licence; casual mall licence plan—see clause 2(2); casual mall licence policy—see clause 2; centre court means a part of a mall area designated as a centre court by the lessor in a casual mall licence policy in accordance with clause 2; common area does not include parking areas, loading docks, plant rooms, customer service areas, stairways, escalators, travelators, lifts, lift wells, toilets, restrooms, seating areas, food courts, stage areas, entertainment areas, or lifestyle precincts; competitor—see subclause (2); external competitor—see subclause (3); internal competitor—see subclause (4); mall area means a part of the common area of a retail shopping centre accessible to the public that is bordered wholly or partly by the shopfronts of retail shops; non-specific outgoings means outgoings to which section 34 applies; sales period means a period not exceeding four weeks fixed from time to time by the lessor as a period during which the lessor promotes a sales event in the retail shopping centre; special event means a community, cultural, arts, entertainment, recreational, sporting, promotional or other similar event that is to be held in the retail shopping centre over a limited period of time. (2) For the purposes of this Schedule— (a) in the case of the sale of goods—a person is a competitor of another person if more than 50 per cent (on a floor area occupied by display basis) of the goods displayed for sale by the person are of the same general kind as more than 20 per cent (on a floor area occupied by display basis) of the goods displayed for sale by the other person; (b) in the case of the supply of services—a person is a competitor of another person if the person competes with the other person to a substantial extent. (3) For the purposes of this Schedule, a person granted a casual mall licence is an external competitor of a lessee of a retail shop if the person is, in the business conducted in the casual mall licence area, a competitor of the lessee but is not a lessee of another retail shop in the same retail shopping centre. (4) For the purposes of this Schedule, a person granted a casual mall licence is an internal competitor of a lessee of a retail shop if the person is, in the business conducted in the casual mall licence area, a competitor of the lessee and is a lessee of another retail shop in the same retail shopping centre. 2—Casual mall licence policy (1) A lessor must not grant a casual mall licence in respect of a retail shopping centre unless the lessor has prepared a document that sets out the lessor's policy in respect of the granting of casual mall licences for the shopping centre (a casual mall licence policy). (2) The casual mall licence policy must include the following: (a) a floor plan (a casual mall licence plan) that clearly shows— (i) the mall areas within the shopping centre in respect of which casual mall licences may be granted, and the dimensions of those areas; and (ii) the part of the mall area within the shopping centre designated as the centre court (if any), and the dimensions of that area; (b) the number of sales periods for the shopping centre in each accounting period; (c) a statement whether the lessor reserves the right to grant casual mall licences otherwise than in accordance with clauses 4, 5 and 6 in respect of special events in the shopping centre. (3) The following provisions apply to the designation of an area as a centre court in a casual mall licence policy: (a) only one part of the mall area of the shopping centre may be designated as a centre court at any one time; (b) the area designated as a centre court must not exceed 20 per cent of the total common area of the shopping centre. (4) If a lessor amends a casual mall licence policy, the lessor must— (a) give written notice of the amendment to the lessees of the shopping centre and the place and times at which a copy of the amended policy may be inspected; and (b) in the case of a lessee who may reasonably be considered to be affected by the amendment—provide a copy of the amended policy to the lessee; and (c) otherwise provide a copy of the amended policy to a lessee on request. (5) An amendment to a casual mall licence policy does not take effect until 30 days after the lessees of the shopping centre have been notified in accordance with subclause (4)(a). 3—Provision of information (1) A lessor must not grant a casual mall licence in respect of a retail shopping centre unless the lessor has given each person who is a lessee of a retail shop in the shopping centre the following information: (a) a copy of the casual mall licence policy in force in respect of the shopping centre; and (b) a copy of this Schedule; and (c) the person nominated by the lessor to deal with complaints about casual mall licences (whether described by name or the title of the person's position) and the person's contact details. (2) The information required under subclause (1) must have been given to a person— (a) in the case of a person who has entered into a retail shop lease after the commencement of this Schedule—at the time the disclosure statement for the lease was provided to the person under Part 3; or (b) in any other case—not less than 14 days before the first granting of a casual mall licence in respect of the shopping centre after the commencement of this Schedule. 4—Obligations of lessor relating to casual mall licence policy (1) A lessor must not grant a casual mall licence except in accordance with the casual mall licence policy as in force in respect of the retail shopping centre at the time the licence is granted. (2) A lessor must not grant a casual mall licence in respect of an area that is not included in a casual mall licence plan as in force in respect of the retail shopping centre at the time the licence is granted. (3) A lessor must not amend a casual mall licence policy except in accordance with this Schedule. 5—Sightlines to shopfront (1) A lessor must ensure that the business conducted by the holder of a casual mall licence in respect of a retail shopping centre does not substantially interfere with the sightlines to a lessee's shopfront in the shopping centre. (2) Subclause (1) does not apply in relation to a lessee if the lessor, before the grant of the casual mall licence, and after informing the lessee of the proposal to grant a licence that might result in interference of a kind referred to in subclause (1), obtained the written consent of the lessee to the grant of the licence. 6—Competitors (1) A lessor must not grant a casual mall licence that results in the unreasonable introduction of an external competitor of an adjacent lessee. (2) A lessor must not grant a casual mall licence that results in the unreasonable introduction of an internal competitor of an adjacent lessee unless— (a) the internal competitor is a lessee of a retail shop situated in the same retail precinct as the casual mall licence area, or if the shopping centre is not divided into precincts, in the vicinity of the casual mall licence area; or (b) the casual mall licence area is the area closest to the internal competitor's retail shop that is available for the casual mall licensing at the time the casual mall licence is granted; or (c) the term for which the casual mall licence is granted falls within a sales period fixed by the lessor in respect of the shopping centre, there having been no more than five previous sales periods in the preceding period of twelve months; or (d) the casual mall licence area is within the centre court of the shopping centre. (3) Subclause (2) does not apply in relation to an adjacent lessee if the lessor, before the grant of the casual mall licence, and after informing the lessee of the proposal to grant a licence that will result in the introduction of an internal competitor of the lessee, obtained the written consent of the lessee to the grant of the licence. (4) For the purposes of subclauses (1) and (2), the introduction of a competitor of an adjacent lessee is unreasonable if it has a significant adverse effect on the trading of the adjacent lessee in the adjacent lessee's retail shop. (5) Subclause (4) is not to be taken as limiting the circumstances in which the introduction of a competitor of an adjacent lessee might be regarded as being unreasonable. 7—Special events Clauses 4, 5, and 6 do not apply to casual mall licences granted in respect of a special event provided that the lessor— (a) reserved the right in the casual mall licence policy to grant casual mall licences otherwise than in accordance with those clauses; and (b) gave the lessees of the retail shopping centre not less than 24 hours written notice containing details of the special event and its duration. 8—Adjustment of outgoings The lessor must, before making an adjustment after the end of an accounting period in accordance with the provision of a retail shop lease implied by section 33, reduce the total amount of the non-specific outgoings to which all lessees of retail shops in the retail shopping centre are liable to contribute in respect of the accounting period by an amount calculated in accordance with the following formula in relation to each casual mall licence granted by the lessor permitting trade in the casual mall licence area during the accounting period: