Part 8Additional requirements for retail shopping centres

Part 8—Additional requirements for retail shopping centres 50—Part applies only to retail shopping centres This Part applies only to retail shop leases of shops in retail shopping centres and (in respect of those leases) applies in addition to the other provisions of this Act. 51—Confidentiality of turnover information If a retail shop lease requires the lessee to provide information to the lessor about the turnover of the business of the lessee, the lessor must not divulge or communicate information provided by the lessee except— (a) with the consent of the lessee; or (b) in a document giving aggregate turnover information about a retail shopping centre in a manner that does not disclose information about the turnover of an individual lessee's business; or (c) to a court or arbitrator, or for the purposes of alternative dispute resolution or a valuation for the purposes of this Act or the lease; or (d) in compliance with a requirement made by or under an Act; or (e) to the lessor's professional advisers (such as legal or financial advisers), or to the proper officer of a financial institution for the purpose in good faith of enabling the lessor to obtain financial accommodation; or (f) in good faith to a prospective purchaser of the retail shop or the building of which it forms part. Maximum penalty: $15 000. 52—Statistical information to be made available to lessee If a retail shop lease requires the lessee to pay an amount in respect of outgoings on account of expenditure incurred in obtaining statistical information, the lease is taken to include provision that the lessor must make information so obtained by the lessor available to the lessee. The cost of a count undertaken at the request of the lessor to assess the extent of vehicular or pedestrian traffic. 53—Advertising and promotion requirements (1) A provision in a retail shop lease is void to the extent that it requires the lessee to undertake advertising or promotion of the lessee's business. (2) Subsection (1) does not apply to a provision in a lease that requires a payment to the lessor for advertising and promotion costs incurred or to be incurred by the lessor. 54—Marketing plan for advertising and promotion (1) If a retail shop lease requires the lessee to pay an amount to the lessor towards advertising and promotion costs, the lease is taken to include provision to the following effect: (a) the lessor must, at least two months before the start of each accounting period of the lessor, make available to the lessee a marketing plan that gives details of the lessor's proposed expenditure on advertising and promotion during that accounting period; (b) if such a payment relates to an opening promotion, the lessor must, at least two months before that opening promotion, make available to the lessee details of the proposed expenditure on that promotion. (2) The lessor must consider any proposals for change made by the lessee within one month after the marketing plan is made available to the lessee. 55—Lessor to provide auditor's report on advertising and promotion expenditure (a) the lessor must give the lessee a written report that complies with this section and details all expenditure by the lessor in each accounting period of the lessor during the term of a retail shop lease on account of advertising or promotion costs to which the lessee is required to contribute under the lease; (b) each report is to be given to the lessee within three months after the end of the accounting period to which it relates; (c) the report is to be prepared by a registered company auditor (within the meaning of the Corporations Act 2001 of the Commonwealth) and is to be prepared in accordance with accounting standards (within the meaning of the Corporations Act 2001 of the Commonwealth). 56—Unexpended advertising and promotion contributions to be carried forward A retail shop lease is taken to include provision that an amount contributed by a lessee in the shopping centre under a retail shop lease for advertising or promotion costs of the lessor and which is not spent for the purpose for which it was contributed must be carried forward by the lessor, to be applied towards future expenditure on advertising or promotion of the centre. 57—Relocation If a retail shop lease contains provision that enables the lessee's business to be relocated, the lease is taken to include provision to the following effect: (a) the lessor cannot require the relocation of the lessee's business unless and until the lessor has provided the lessee with details of a proposed refurbishment, redevelopment or extension sufficient to indicate a genuine proposal that is to be carried out within a reasonably practicable time after relocation of the lessee's business and that cannot be carried out practicably without vacant possession of the lessee's shop; and (b) the lessor cannot require the relocation of the lessee's business unless the lessor has given the lessee at least three months written notice of relocation (a relocation notice) and that notice gives details of an alternative shop to be made available to the lessee; and (c) the lessee is entitled to be offered a new lease of the alternative shop on the same terms and conditions (excluding rent) as the existing lease except that the term of the new lease is to be for the remainder of the term of the existing lease1; and (d) if a relocation notice is given, the lessee may terminate the lease within one month after the relocation notice is given by giving written notice of termination to the lessor, in which case the lease is terminated three months after the relocation notice was given unless the parties agree that it is to terminate at some other time; and (e) if the lessee does not give a notice of termination under paragraph (d), the lessee is taken to have accepted the offer of a lease unless the parties have agreed to a lease on some other terms; and (f) the lessee is entitled to payment by the lessor of the lessee's reasonable costs of the relocation, including legal costs2. Notes— 1 Paragraph (c) only specifies the minimum entitlements that the lessee can insist on. It does not prevent the lessee from accepting other arrangements offered by the lessor when the details of a relocation are being negotiated. 2 This section does not prevent the parties negotiating a new lease for the purpose of relocating the lessee. Paragraph (f) only specifies the minimum entitlements that the lessee can insist on and the parties can come to some other arrangement for the payment or sharing of the lessee's relocation costs when the details of a relocation are being negotiated. 58—Termination for inadequate sales prohibited A retail shop lease must not contain a provision that permits or otherwise provides for the termination of the lease on the ground that the lessee or the business of the lessee has failed to achieve a particular level of sales or turnover. 59—Geographical restrictions (1) A retail shop lease must not contain a provision which has the effect of preventing or restricting the lessee from carrying on business outside the retail shopping centre, either during the term of or after the expiry of the lease. (2) This section does not operate to prevent a lease or other agreement from containing a provision that prevents the use of the name of the retail shopping centre in connection with a business carried on outside the shopping centre. 60—Associations representing lessees (1) A retail shop lease must not contain a provision that has the effect of preventing or restricting the lessee from joining, forming or taking part in the activities of an association to represent or protect the interests of lessees. (2) A lessee is entitled to be accompanied and represented by a member or officer of such an association when conducting negotiations with the lessor but, if the retail shop is in a shopping centre, the member or officer of the association must not be a lessee of another shop in the same shopping centre. 61—Trading hours (1) A retail shop lease may only regulate trading hours if— (a) the shop is within an enclosed shopping complex; and (b) the lease does not reduce the trading hours for which the shop is permitted to be open for trade to less than 50 hours per week; and (c) the core trading hours (ie the hours for which the shop is required to be open for business)— (i) do not exceed 54 hours a week and do not include any time on a Sunday; and (ii) have been approved in a secret ballot, conducted in accordance with the regulations, by a majority of at least 75% of the votes cast. (2) In the ballot, the lessor is entitled to one vote and the lessee of each retail shop affected by the proposal to be decided by the ballot is entitled to one vote in respect of that shop. (2a) The lessor or the lessee under a retail shop lease (or an officer of an association referred to in section 60 acting at the request of a lessee) may call a meeting of the persons who are entitled to vote in a ballot to vote on a resolution approving different core trading hours for the purposes of subsection (1)(c). (3) A retail shop lease for a shop that is required to be open for business during core trading hours is void to the extent that it requires the lessee to pay, or pay a contribution towards, the costs of operating the shopping complex outside core trading hours when the lessee's shop is not open for trading. (4) A lessee may apply to the lessor for exemption from the provisions of the retail shop lease regulating trading hours. (5) On receiving a written application for an exemption under subsection (4), the lessor must not unreasonably withhold the exemption (but it may be granted on reasonable conditions). (6) A provision in a retail shop lease, or in any determination as to core trading hours under this section, is void to the extent that it requires the lessee to open the shop on any Sunday. 62—Special provision for strata and community shopping centres (1) If a retail shop is a strata unit under the Strata Titles Act 1988, and the shop is subject to a retail shop lease, this Act applies with necessary modifications (and also any modifications prescribed by regulation) to requirements, limitations and restrictions imposed under the articles of the strata corporation as if they formed part of the lease. (2) If a retail shop is a community lot under the Community Titles Act 1996, and the shop is subject to a retail shop lease, this Act applies with necessary modifications (and also any modifications prescribed by regulation) to requirements, limitations and restrictions imposed by the scheme description or the by-laws of the scheme as if they formed part of the lease. 62A—Casual Mall Licensing Code A lessor in respect of a retail shopping centre must comply with the provisions of the Casual Mall Licensing Code set out in the Schedule.