What it does
The Retail Leases Act 1994 (NSW) (the Act) creates a self-contained statutory overlay that governs the formation, content, operation and termination of retail shop leases while displacing inconsistent contractual terms. Section 7 expressly provides that the Act “operates despite the provisions of a lease” and renders void any lease provision (or collateral agreement) to the extent of any inconsistency. The Act’s substantive reach is delineated in Part 1. A “retail shop lease” is defined in s 3(1) as any agreement (oral, written, express or implied) under which a person grants another, for value, a right to occupy premises for use as a retail shop. “Retail shop” itself is defined bifocally: premises used or proposed to be used wholly or predominantly for a business prescribed for the purposes of para (a) (including those listed in Sch 1 until repealed by regulation—see Note 2 to the definition and cl 17 of Sch 3), or any business conducted in a “retail shopping centre”.
A retail shopping centre is itself a four-limbed statutory construct (s 3(1)): at least five premises used for listed businesses, common ownership or head-lessor, physical contiguity, and promotion or general reputation as a shopping centre, mall, court or arcade. Sections 5, 6, 6A and 6B then carve out exclusions. Shops with a lettable area of 1,000 m² or more, shops operated by the lessee on behalf of the lessor, cinemas/bowling alleys/skating rinks operated by the same person, premises used only for Sch 1A excluded uses, and any class prescribed by regulation are removed from the Act’s operation (s 5). Leases for 25 years or more (including options), pre-commencement leases, and short-term leases of less than six months without extension rights are likewise excluded (s 6 and s 6A(1)), although s 6A(2) brings successive or extended short-term arrangements back under the Act once continuous possession exceeds one year. Permanent retail markets are carved out unless they satisfy the s 6B(2) definition of operating in a building whose sole or dominant use is the market itself.