Part 7Assignment and termination

Part 7—Assignment and termination 43—Grounds on which consent to assignment can be withheld (1) The lessor is entitled to withhold consent to the assignment of a retail shop lease in any of the following circumstances (and is not entitled to withhold that consent in any other circumstances): (a) if the proposed assignee proposes to change the use to which the shop is put; or (b) if the proposed assignee is unlikely to be able to meet the financial obligations of the lessee under the lease; or (c) if the proposed assignee's retailing skills are inferior to those of the assignor; or (d) if the lessee has not complied with procedural requirements for obtaining the lessor's consent1. (2) If the lessor withholds consent to the assignment of a retail shop lease, the lessor must give the lessee a written statement of the grounds on which consent is withheld. 1 See section 45. 44—Premium on assignment prohibited (1) A lessor must not seek or accept the payment of a premium in connection with the granting of consent to the assignment of a retail shop lease and a provision of a retail shop lease is void to the extent that it requires the payment of a premium in connection with the granting of consent to the assignment of the lease. (2) If a lessor or a person acting on behalf of a lessor contravenes this section— (a) the person is guilty of an offence and liable to a penalty not exceeding $15 000; and (b) the lessee is entitled to recover from the lessor as a debt any payment made or the value of any benefit conferred by the lessee and accepted by or on behalf of the lessor in contravention of this section (whether or not the person is convicted of an offence under paragraph (a)). (3) This section does not prevent the lessor from requiring payment of a reasonable sum for legal or other expenses incurred in connection with such a consent (but the lessee is entitled to have those expenses substantiated by the lessor before making such a payment). The lessor and a proposed assignee may enter into a new lease of the retail shop instead of proceeding with the assignment. 45—Procedure for obtaining consent to assignment A retail shop lease is taken to include the following provisions: (a) a request for the lessor's consent to an assignment of the lease must be made in writing and the lessee must provide the lessor with information the lessor reasonably requires about the use to which the proposed assignee proposes to put the shop and the financial standing and business experience of the proposed assignee; (b) before requesting the consent of the lessor to a proposed assignment of the lease, the lessee must furnish the proposed assignee with a copy of any disclosure statement given to the lessee in respect of the lease, together with details of any changes that have occurred in respect of the information contained in that disclosure statement since it was given to the lessee (being changes of which the lessee is aware or could reasonably be expected to be aware); (c) for the purpose of enabling the lessee to comply with paragraph (b), the lessee is entitled to request the lessor to provide the lessee with a copy of the disclosure statement concerned and, if the lessor is unable or unwilling to comply with such a request within 14 days after it is made, paragraph (b) does not apply to the lessee; (d) the lessor must deal expeditiously with a request for consent and is taken to have consented to the assignment if the lessee has complied with paragraphs (a) and (b) and the lessor has not within 42 days after the request was made given notice in writing to the lessee either consenting or withholding consent. 45A—Liability of lessee following assignment of lease (1) Subject to subsection (4), notwithstanding the provisions of a retail shop lease or of any other agreement (whether being a lease or agreement made before or after the commencement of this section), if the lessee assigns the retail shop lease, the lessee, and any guarantor of the lessee, will not be subject to any obligations or liabilities under the lease on or after the relevant date. (2) Nothing in subsection (1) relieves the lessee, or a guarantor of the lessee, of any obligations or liabilities accrued in respect of the retail shop lease prior to the relevant date. (3) In this section— relevant date means— (a) the second anniversary of the date on which the lease was assigned; or (b) the date on which the lease expires; or (c) if the lease is renewed or extended after the assignment, the date on which the renewal or extension commences, whichever first occurs. (4) Subsection (1) does not apply to the assignment of a retail shop lease in respect of a retail shop that is to continue as an ongoing business if— (a) the assignor did not provide a disclosure statement (an assignor's disclosure statement) containing the information referred to in subsection (5)— (i) to the proposed assignee, before requesting the consent of the lessor to the proposed assignment of the lease; and (ii) to the lessor, at the time the request for consent to the proposed assignment is made by the lessee; or (b) an assignor's disclosure statement provided to the proposed assignee and the lessor contained information that at the time it was provided was materially false or misleading. (5) The assignor's disclosure statement is a written document (in the form prescribed by the regulations) stating— (a) whether the assignor has provided the assignee with the lessor's disclosure statement in respect of the lease (together with details of any changes to the information contained in the disclosure statement since the statement was given); and (b) whether there are any outstanding notices in respect of the lease and, if so, the details of any such notices; and (c) whether there are any outstanding notices from any authority in respect of the retail shop and, if so, the details of any such notices; and (d) whether there are any encumbrances on the lease and, if so, the details of any such encumbrances; and (e) whether there are any encumbrances on, or whether any third party has an interest in, any fixtures and fittings within the retail shop and, if so, the details of any such encumbrances or interest; and (f) whether the lessor has conferred any rent concessions or other benefits on the assignor during the term of the lease and, if so, the details of any such concessions or benefits; and (g) the total (aggregate) annual sales figures in respect of the retail shop for the past three years, or such lesser period as the lease has been in operation; and (h) details of any other information the assignor has provided to the assignee as to the trading performance of the retail shop during the past three years or for such lesser period as the lease has been in operation; and (i) any other matters prescribed by the regulations. 46—Lessor may reserve right to refuse sublease, mortgage A retail shop lease may contain a provision that allows the lessor to refuse in the lessor's absolute discretion— (a) consent to the grant of a sublease, licence or concession for the whole or a part of the shop; or (b) consent to the lessee parting with possession of the whole or a part of the shop; or (c) consent to the lessee mortgaging or otherwise charging or encumbering the lessee's interest in the lease. 47—Long term closure order If a long term closure order under section 69CC of the Tobacco and E-Cigarette Products Act 1997 is in effect in relation to premises to which a retail shop lease applies, the lease will be taken to include the following provisions: (a) the lessor or the lessee may terminate the lease because of the long term closure order by giving not less than 28 days written notice to the other (or such shorter period as agreed between the parties); (b) if a dispute arises between the parties to the retail shop lease as a consequence of the long term closure order, the Magistrates Court may, on application by a party to the lease, make such orders (including orders for the payment of compensation) or do anything necessary or desirable as the Court thinks fit to resolve the dispute.