On 23 March 2017, the Court and Civil Legislation Amendment Bill 2017 (Bill) was introduced by the Attorney-General, Yvette D’Ath MP. Amongst other amendments, the Bill provides for a number of amendments to the Retail Shop Leases Act, 1994 (Act).
A summary of the proposed amendments are as follows:
1. The proposed new Section 21F provides that a lessee can not terminate the lease based on a defective disclosure statement provided by the lessor if:
(a) the lessor acted honestly and reasonably in giving the disclosure statement; and (b) the lessee is in substantially as good a position as they would have been if the disclosure statement was not defective.
You may recall that this ‘defence’ for lessors was inadvertently removed by the amendments which commenced on 25 November 2016.
It is proposed that this new section will take effect from 25 November 2016 so that there is no ‘gap’ in the lessor’s ability to rely on this defence.
2. The Bill also proposes to insert a new Section 154 of the Act which gives permanent effect to the Retail Shop Leases (Transitional) Regulation 2016.
The new Section 154 will provide that the Act will continue to apply to the following types of leases entered into prior to 25 November 2016:
(a) Leases where the floor area exceeds 1000 square metres; and (b) Leases where the business is conducted by a lessee as the lessor’s employee or agent.
So for example, in the case of paragraph (a), a lease for an Aldi Supermarket entered into before 25 November 2016 will continue to be governed by the Act whilst such a lease entered into on or after 25 November 2016 will not be governed by the Act.
The Bill has been referred to the Legal Affairs and Community Safety Committee for review on 23 March 2017. It is yet to receive assent.