South Australian Current Acts

RETAIL AND COMMERCIAL LEASES ACT 1995 - SECT 38

38—Lessee to be compensated for disruption etc

        (1)         A retail shop lease is taken to provide that if the lessor—

            (a)         inhibits access of the lessee to the shop in a substantial manner; or

            (b)         takes action that would inhibit or alter, to a substantial extent, the flow of customers to the shop; or

            (c)         unreasonably takes action that causes significant disruption of, or has a significant adverse effect on, trading of the lessee in the shop; or

            (d)         fails to take all reasonable steps to prevent or put a stop to anything attributable to causes within the lessor's control that causes significant disruption of, or which has a significant adverse effect on, trading of the lessee in the shop; or

            (e)         fails to rectify any breakdown of plant or equipment under the lessor's care or maintenance; or

            (f)         in the case of a shop within a retail shopping centre—fails to clean, maintain or repair the retail shopping centre (including common areas),

and the lessor does not rectify the matter as soon as reasonably practicable after being requested in writing by the lessee to do so, the lessor is liable to pay the lessee reasonable compensation for loss or damage (other than nominal damage) suffered by the lessee as a consequence.

        (2)         In determining whether a lessor has acted unreasonably for the purposes of subsection (1)(c), due consideration is to be given to whether the lessor has acted in accordance with recognised shopping centre management practices.

        (3)         A retail shop lease may include a provision preventing or limiting a claim for compensation under the provisions implied by this section in respect of a particular occurrence if the likelihood of the occurrence was specifically drawn to the attention of the lessee in writing before the lease was entered into.

Note—

For example, a disclosure statement would be an appropriate means of specifically drawing the attention of the lessee to the likelihood of an occurrence.

        (4)         The provisions implied by this section do not apply to any action taken by the lessor—

            (a)         as a reasonable response to an emergency situation; or

            (b)         in compliance with a duty imposed by or under an Act or resulting from a requirement imposed by a public or local authority acting under the authority of an Act.