Western Australian Consolidated Acts Western Australian Consolidated Acts (1) In this Act,
unless the contrary intention appears —
accountant means a member of —
(a) The
Institute of Chartered Accountants in Australia;
(b) The
Australian Society of Certified Practising Accountants; or
(c) The
National Institute of Accountants;
accounting year in relation to a lease, means the
accounting year specified in the lease or, if not so specified, a financial
year;
building includes any structure;
common area , in relation to a retail shopping
centre, means an area within or adjacent to the centre that is intended for
use by the public or for use in common by tenants of premises in the centre in
connection with the conduct of business at premises in the centre and includes
all stairways, escalators, elevators, malls, walkways, trafficways, parking
areas, toilets, restrooms, gardens and fountains intended for any such use;
goodwill , in relation to a business, means an
intangible saleable asset, separate and distinct from the stock, fixtures,
fittings, and other tangible assets of the business, arising from the
reputation of the business, the relations formed with customers of the
business, and the nature of the location of the business;
key-money means —
(a)
money that is to be paid by, or at the request or direction of, a tenant; or
(b) any
benefit that is to be conferred by, or at the request or direction of, a
tenant,
by way of a premium or something of a like nature
in consideration of the granting of, or agreeing to grant, a lease or the
renewal of a lease or the consenting to an assignment of a lease or the
sub-leasing of the premises the subject of a lease;
landlord , in relation to a lease,
means —
(a) the
person who, under the lease, grants or is to grant to the tenant the
entitlement to occupy the premises the subject of the lease; or
(b) a
person who obtains a reversionary interest in those premises,
but does not include a person who assigns his
interest as tenant under the lease;
lease means any lease, licence, or agreement,
whether in writing or not, that provides for the occupation of premises
situated within the State whether for a term or by way of a periodic tenancy
or a tenancy at will, and whether or not the lease, licence, or agreement is
entered into outside the State or purports to be governed by any law other
than the law of the State but does not include a licence or agreement relating
to the common area of a retail shopping centre by reason only that it provides
for a person to use a portion of the common area the continued use of which as
a portion of the common area is not intended to be otherwise precluded;
management fees means fees in respect of costs for
or incidental to the collection of rent or other moneys or the management of
premises including, but not limited to, such of those costs —
(a) in
respect of —
(i)
management offices;
(ii)
plant and equipment;
(iii)
staff;
and
(b) as
are of a kind prescribed;
retail floor area , in relation to a retail shop,
means the floor area of the retail shop designed and available for use for the
carrying on of business in the retail shop;
retail shop means —
(a) any
premises situated in a retail shopping centre that are used wholly or
predominantly for the carrying on of a business; and
(b) any
premises not situated in a retail shopping centre that are used wholly or
predominantly for the carrying on of —
(i)
a business involving the sale of goods by retail; or
(ii)
a specified business,
but does not include premises used wholly or
partly for the carrying on of a business involving the retail sale of petrol
or diesel to be used to propel vehicles on public roads, other than premises
used for that purpose by a tenant under a lease from a landlord who is not a
party to a franchise agreement within the meaning of that expression in the
Petroleum Retail Marketing Franchise Act 1980 7 of the Parliament
of the Commonwealth;
retail shop lease means a lease that provides for
the occupation of a retail shop other than where —
(a) the
total retail floor area to which that lease applies (including, in the case of
a building with 2 or more floor levels, the area of every floor level or part
thereof to which that lease applies) exceeds 1 000 square metres; or
(b) the
lease is held by a corporation (within the meaning of the
Corporations Act 2001 of the Commonwealth) that would not be eligible to
be incorporated as a proprietary company, or that is held by a subsidiary of
such a corporation;
retail shopping centre means a cluster of premises
—
(a) 5 or
more of which are used wholly or predominantly for the carrying on of —
(i)
a business involving the sale of goods by retail; or
(ii)
a specified business;
and
(b) all
of which —
(i)
have, or upon being leased would have, a common head
lessor; or
(ii)
comprise lots on a single strata plan under the
Strata Titles Act 1985 ,
whether the premises are in a single storey
building or a multi-level building;
Small Business Commissioner means the Commissioner
as defined in the Small Business Development Corporation Act 1983
section 3(1);
specified business means a business of a kind
prescribed by the regulations to be a specified business;
tenant , in relation to a lease, means the person
who, under the lease, is or would be entitled to occupy the premises the
subject of the lease;
the business , in relation to a retail shop lease,
means the business carried on or to be carried on at or from the retail shop
the subject of the lease;
total lettable area , in relation to a retail
shopping centre, means the aggregate of the retail floor areas of the retail
shops (or areas set aside for retail shops) in the retail shopping centre;
Tribunal means the State Administrative Tribunal;
unconscionable conduct application means an
application under section 15F(1).
(2) Where the parties
to a retail shop lease enter into, either before or after entering into the
retail shop lease, a written or oral agreement or arrangement that contains a
provision which if contained in the retail shop lease would be void, that
provision is for the purposes of this Act deemed to be contained in the retail
shop lease and this Act applies to and in relation to that provision as if it
were so contained.
(3) A reference in
this Act to a question arising under a retail shop lease includes a reference
to —
(a) a
question whether or not a lease exists or has existed;
(b) a
question whether or not a lease is or was a retail shop lease;
(c) a
question arising —
(i)
in relation to any communication, including a disclosure
statement under section 6, between the parties to the retail shop lease,
prior to their entry into the retail shop lease, which communication was
material to the terms and conditions of the retail shop lease; or
(ii)
in relation to the retail shop lease under a provision of
this Act;
(d) a
matter that is in dispute between the landlord and the tenant under
section 12 in relation to —
(i)
operating expenses of the landlord under the retail shop
lease generally;
(ii)
an allocation made under section 12(1)(b) of the
proportion of those operating expenses; or
(iii)
a determination of the relevant proportion for the
purposes of section 12;
or
(e) any
other matter that is in dispute between the landlord and the tenant in
connection with the retail shop lease, whether or not that matter is dealt
with by the provisions of the retail shop lease.
(4) For the purposes
of this Act a retail shop lease is entered into when —
(a)
under the retail shop lease, the tenant enters into possession of, or
commences to pay rent in respect of, the premises the subject thereof; or
(b)
where the retail shop lease is in writing, all of the parties thereto have
signed the retail shop lease,
whichever first
occurs.
[Section 3 amended by No. 49 of 1985
s. 3; No. 48 of 1990 s. 4; No. 56 of 1997 s. 24;
No. 66 of 1998 s. 4; No. 10 of 2001 s. 38; No. 55 of 2004
s. 117; No. 47 of 2006 s. 21; No. 20 of 2011 s. 30.]