Retail Leases Amendment (Review) Act 2017

Transcription

1 AUSTRALIAN INSTITUTE OF CONVEYANCERS (NSW DIVISION) 2017 EDUCATION PROGRAM Retail Leases Amendment (Review) Act 2017 PRESENTED BY: TONY CAHILL 20 MARCH, 2017 NOVOTEL PARRAMATTA 350 CHURCH STREET, PARRAMATTA

2 Retail Leases Amendment (Review) Act 2017 Legal Author and Commentator TABLE OF CONTENTS About the author... v Retail leasing reform... 1 The (tortuous) pathway to reform... 1 The 2013 Review... 6 The 2016 Bill Key issues in the 2017 amending Act i

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4 ABOUT THE AUTHOR was admitted to practice in After 13 years with a medium-sized city law firm, Tony commenced practice on his own account at Chatswood. In July 2002, Tony commenced a sabbatical from private practice to concentrate primarily on legal education and writing. He is a member of the Law Society s Property Law Environmental, Planning and Development Committees. He has been a member of the Re-Draft Committees for the editions of the Contract for the Sale of Land since 1992, and the editions of the Contract for the Sale of Business since In 1995, Tony completed the Property Agency TAFE course which was then the most usual educational qualification for holders of licences under the former Property, Stock and Business Agents Act He was a co-author with Russell Cocks and Paul Gibney of the first NSW edition of 1001 Conveyancing Answers, and is currently the co-author with Gary Newton of Conveyancing Service New South Wales and Annotated Conveyancing and Real Property Legislation New South Wales, both published by LexisNexis Butterworths. Tony has been a part-time lecturer at the University of Technology, Sydney, in construction law, property transactions, legal studies, and real estate law, and has lectured at the Sydney and Northern Sydney Institutes of TAFE in various law subjects. He currently lectures in the Applied Law Program at the College of Law, Sydney. iii

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6 Retail Leases Amendment (Review) Act 2017 Retail leasing reform Retail leases reform in New South Wales has been in prospect since April 2008, with several false starts over the last nine years. The Retail Leases Amendment (Review) Bill 2016 was introduced into the Parliament on 8 November It passed both Houses without amendment on 21 February The Act received assent on 1 March As at the date of preparation of this paper the commencement date is unknown. Given the scope of the changes it is hoped there will be a significant lead time (perhaps several months) to allow industry to prepare for the changes. The (tortuous) pathway to reform On 14 April 2008 the Government issued a discussion paper entitled Issues Affecting The Retail Leasing Industry in NSW. One section of the paper (Appendix B) discussed topics which may form the basis of a future Retail Leases Regulation: The Discussion Paper identified three new topics which may be included in the Act for the first time, and numerous topics covered in the current Act which might be subject to amendment including: the statutory appointment of a Retail Advocate; mandatory education for retail tenants; access and charging arrangements for parking facilities; the time period for bringing pre-lease misrepresentation claims; 1

7 remedies for non-disclosure or incomplete disclosure; the provision of disclosure statements when an agreement to lease has been entered into; registration of leases and lease documentation; fit-outs; outgoings; alterations and relocation; landlord use of advertising or promotional funds contributed by tenants; introduction of competition or change of tenancy mix in a shopping centre; strata schemes causing significant disturbances to a tenant s business; failing businesses in statutory five year leases; bank guarantees; the passing on of land tax to tenants; end of lease issues; damaged premises; unconscionable conduct and unfairness; retail advisers; the conduct of parties in mediation; and the monetary jurisdictional limit of the Tribunal. The 2008 Discussion Paper raised a number of possibilities which, if carried through into legislation, would have dramatically shifted the balance of power in the landlord-tenant relationship in favour of the tenant. 2

8 A Government response to the comments on the Paper (finally) issued in January 2011 in the form of a Consultation Draft of a Retail Leases Amendment Bill Comments were required by 11 February The Overview of the Bill indicates far-reaching changes, some of which were not contemplated in the 2008 Discussion Paper. The Overview provisions are set out below: (a) to simplify the procedures for the various disclosure statements that lessors and lessees are required to provide under the principal Act, (b) to make it clear that shop premises in an office tower that forms part of a retail shopping centre are not excluded from the operation of the principal Act if they are used for a retail shop business listed in Schedule 1 to the principal Act, (c) to vary the provisions for a lessor s disclosure statement to make it clear that a lessor s disclosure statement is required when a lease is renewed and to enable a lessee to require a lessor s disclosure statement before exercising an option to renew a lease, (d) to make it clear that the termination of a lease for a failure to provide a complete and accurate lessor s disclosure statement does not affect a lessee s right to compensation for a pre-lease misrepresentation, (e) to make it clear that when the principal Act applies to a lease, it continues to apply during holding over by the lessee, (f) to add the cost of outgoings to the list of costs that a lessee is not required to contribute to unless the liability is disclosed in the lessor s disclosure statement, (g) to provide that if the lessor and lessee cannot agree on the maximum cost of, or a formula for calculating the cost of, fit-out works before the lease is entered into, the maximum cost is to be determined by an independent quantity surveyor, 3

9 (h) to require all retail shop leases that are for a term of 3 years or more to be registered under the Real Property Act 1900 and to include a summary statement for the lease, (i) to make it clear that the decision to enter into a retail shop lease for a term of less than the minimum 5 years is at the discretion of the lessee, (j) to provide for the publication of guidelines for the assistance of the parties to a retail shop lease in connection with arrangements for providing a bank guarantee as security for the performance of the lessee s obligations under the lease, (k) to make it clear that a prohibition against a lease containing a provision that prevents or limits a rent decrease when rent is adjusted extends to a rent adjustment that occurs on the exercise of an option to renew, (l) to prohibit the recovery from a lessee of any outgoings attributable to land tax, (m) to allow a specialist retail valuer to require a lessor to provide an updated lessor s disclosure statement for the purposes of a valuation of current market rent, (n) to increase from 2 months to 6 months the period of notice required to be given to a lessee of an alteration or refurbishment that is likely to adversely affect the business of the lessee, (o) to require a lessor, if practicable, to offer alternative accommodation of reasonably comparable commercial value when relocating a lessee, and to enable a lessee to recover the lessee s depreciated fit-out costs if the alternative accommodation offered is not of reasonably comparable commercial value and the lessee terminates the lease, (p) to provide that a lessee cannot be required under the lease to make any repairs or improvements after notice of termination on 4

10 the ground of proposed demolition is given to the lessee (other than repairs for the purposes of ensuring the safety or security of a building), (q) to require a provision of a lease for refurbishment or refitting by the lessee to specify when it is required and to sufficiently specify what is required to allow the lessee to make a reasonably accurate assessment of cost, (r) to make it clear that it is the responsibility of the lessee to provide sufficient information to the lessor to enable the lessor to be reasonably satisfied as to whether any circumstances exist that entitle the lessor to withhold consent to the assignment of a retail shop lease, (s) to simplify the drafting of the procedure to be followed by a lessee to obtain the consent of the lessor to an assignment of lease, (t) to entitle a lessee after the end of a retail shop lease to a refund of unexpended contributions made by the lessee towards advertising and promotion of a retail shopping centre, (u) to increase the monetary limit on the jurisdiction of the Administrative Decisions Tribunal (subsequently absorbed into NCAT) for claims arising under the principal Act from $400,000 to $750,000, (v) to change the current requirement that the Tribunal must be assisted by members with lessor and lessee experience when hearing a retail lease matter, so that the requirement will only apply in any case that the Tribunal considers it appropriate, (w) to clarify the operation of provisions that impose a time limit on when certain claims can be made under the principal Act, (x) to provide that the Registrar of Retail Tenancy Disputes may receive and investigate complaints about the conduct of a party to a retail shop lease, 5

11 (y) to provide that a court is to have regard to an industry code of practice prescribed by the regulations for the purposes of establishing accepted practices and interpretations within the industry concerning the leasing of retail shops, (z) to provide for the issue of penalty notices for offences under the principal Act or the regulations, (aa) to provide a statement of the objects of the principal Act, (ab) to require a further review of the principal Act in another 7 years, (ac) to enact consequential savings and transitional provisions and to make miscellaneous minor amendments. To take two examples of topics not canvassed in the 2008 Discussion Paper which may be problematic, consider a prohibition on a lessor passing on land tax as an outgoing, and a requirement to register every lease which has a term of three years or more (a subtly different regime to that under the Real Property Act 1900). The Government changed in March The Consultation Draft progressed no further. The 2013 Review In late 2013 the Government issued a discussion paper entitled 2013 Review of the Retail Leases Act Comments on the paper were due by 7 February As was the case with previous discussion papers and the 2011 consultation draft amending Bill discussed above, the paper is wide-ranging. I set out below the Table of Contents: 1.1 Information Asymmetry How to know if it is a good deal 1.2 Information asymmetry Turnover Data 2.1 Outgoings Market Rates 2.2 Outgoings Advertising and Promotion 6

12 2.3 Outgoings Land tax 2.4 Outgoings Not disclosed 2.5 Outgoings Environmental Upgrade Agreements 3.1 Fidelity of the bargain Franchisee sub-lease/licence 3.2 Fidelity of Bargain Strata 3.3 Fidelity of Bargain Anti-avoidance 3.4 Fidelity of the bargain Damaged Premises 3.5 Fidelity of the bargain Right of first refusal, end of lease 4.1 Streamlining/simplification Standard Lease 4.2 Streamlining/simplification Appointment of Specialist Retail Valuers 4.3 Streamlining/simplification Registration of Leases 4.4 Streamlining/simplification Disclosure statements 4.5 Streamlining/simplification Mortgagee consent fees 5.1 Fair Dealings Test of Good Faith 5.2 Fair Dealings Bank guarantees 6.1 Coverage of the Act Definition/List 6.2 Coverage of the Act Inclusions/ Exclusions 6.3 Coverage of the Act Publicly listed companies 7.1 Reduce prescriptive regulation Minimum Term 7.2 Reduce prescriptive legislation - Assignment 7.3 Reduce prescriptive legislation Termination for inadequate sales prohibited 8.1 Technical Issues Regular Review of the Act 8.2 Technical issues- Operation of the ADT 7

13 8.3 Technical Issues Remedies and penalties in the Act 8.4 Technical Issues Online Sales 8.5 Technical Issues Minor Drafting Issues 8.6 Technical Issues Regulation working as intended? To pick a few of the topics which might be of greatest interest to practitioners from the Discussion Paper (with edited extracts from the Discussion Paper): Item 1.1 Information Asymmetry How to know if it is a good deal The PC Report 2008 recommended that a summary sheet of information be included in lease documentation lodged in a publically (sic) assessable site. Other jurisdictions including Queensland are considering information asymmetry issues. Source: PC Report a. Is the confidentiality of the financial arrangements between the parties more important than the provision of industry information? 1.1.b. If not, how best could the whole of the financial arrangements of the lease be made publically (sic) accessible? 1.1.c. If information were required to be registered, how should updated side deals be dealt with? Item 2.2 Outgoings Advertising and Promotion A number of stakeholders have expressed concerns about the use of advertising and promotion funds. The landlord is required to provide an audited report on expenditure. Auditors are required to report that the funds were spent and do not provide commentary or analysis of the value for money or effectiveness of the expenditure. 8

14 2.2.a. Are the current requirements for marketing plans, six monthly expenditure statements, advertising statements and auditor s reports appropriate and necessary (an opportunity to reduce red tape)? 2.2.b. Is the current regulation for the use of advertising and promotion funds working well? 2.3 Outgoings Land Tax Tenant representatives have submitted that land tax is an ownership expense rather than an operating expense and therefore should not be recoverable from the tenant as an outgoing. Landlords in Western Australia and Tasmania are able to recover land tax. Conversely, landlords in Victoria, Queensland and South Australia are prohibited from recovering land tax from tenants. The Northern Territory and the Australian Capital Territory do not charge land tax on commercial properties. Source: State Retail Leases Legislation 2.3.a. Would there be a benefit or detriment if landlords are prohibited from recovering land tax from tenants? 2.4 Outgoings Not disclosed Where a Disclosure Statement is not provided, the right to terminate the lease may not be an effective outcome. The landlord may have made a genuine administrative mistake or the tenant may have made significant investment in the fitout or franchise agreement. The Administrative Decisions Tribunal (ADT) has asked that there be a broader range of options for dealing with this situation. Source: Prior OSBC discussions with the ADT 9

15 2.4.a. Is the disclosure regime working as intended? Please provide recommendations of how it can be improved. 2.4.b. Should the Act provide a wider range of remedies if a landlord or tenant does not provide a Disclosure Statement as required? 2.4.c. Should the minimum time for providing the Disclosure Statement of 7 days before the lease commences be reduced if both landlord and tenant are legally represented and request the option? 2.4.d. Where a lease requires a tenant to pay strata levies should any special levy, extra levy or sinking fund have to be specifically disclosed (these levies can be significant amounts such as for major capital works to the strata property)? The full Discussion Paper is available at data/assets/pdf_file/0011/34976/r etail-discussion-paper-web.pdf In August 2012 the Opposition introduced a Retail Leases Amendment (Mediation) Bill 2012 which proposed to amend section 68(1) of the Act. The section currently provides: (1) A retail tenancy dispute or other dispute or matter referred to in section 65 (1) (a1) may not be the subject of proceedings before any court unless and until the Registrar has certified in writing that mediation under this Part has failed to resolve the dispute or matter or the court is otherwise satisfied that mediation under this Part is unlikely to resolve the dispute or matter. The proposed amendment was in these terms: (1) Proceedings in relation to a retail tenancy dispute or other dispute or matter referred to in section 65 (1) (a1) may not be commenced in any court unless the Registrar has certified in writing that mediation under this Part has failed to resolve the dispute or matter. The Bill did not progress beyond a second reading in the Legislative Assembly. 10

16 The 2016 Bill The Explanatory Note to the Bill gives an indication of the scope of the amendments: (a) to confer a right to compensation on a lessee who terminates a retail shop lease during the first 6 months pursuant to the current right of the lessee to terminate in certain circumstances, (b) to require full disclosure in the lessor s disclosure statement of any obligation of the lessee to contribute to the lessor s outgoings and to prevent the recovery from a lessee of outgoings that are not disclosed, (c) to require the registration of a retail shop lease that is for a term of more than 3 years (or that is required by the terms of the lease to be registered) and to require lodgment for registration within 3 months after the lease is executed, (d) to exclude premises used wholly for certain non-retail purposes from the scope of the Act (including ATMs, vending machines, public telephones, children s rides, internet booths, private post boxes and certain storage uses), (e) to make it clear that a lessor is not entitled to recover any expenses involved in the lessor obtaining the consent of the mortgagee of the premises leased, (f) to remove the requirement for a 5-year minimum term for retail shop leases, (g) to require a lessor to return a bank guarantee to the lessee within 2 months after the lessee has performed all obligations secured by the bank guarantee, (h) to revise and clarify the definition of outgoings in the Act and to extend the definition to include fees charged by a lessor for services provided by the lessor, (i) to allow a retail shop lease with the approval of the Registrar of Retail Tenancy Disputes (the Registrar) to impose requirements for police and security checks on the persons who can be employed in or to do work at a retail shop, (j) to make it clear that lessee protections under the Act in relation to termination on the grounds of proposed demolition of the building of 11

17 which a retail shop forms part extend to proposed demolition of any part of the building and that termination on the grounds of proposed demolition is only permissible when demolition requires vacant possession of the shop, (k) to change the restriction on when a disputed security bond can be released from a fixed period of 14 days after a judgment to the period within which an appeal against the judgment may be exercised, (l) to increase the monetary limit on the jurisdiction of the Civil and Administrative Tribunal (the Tribunal) for claims arising under the Act from $400,000 to $750,000, (m) to expand the grounds on which the Tribunal can order the rectification of a retail shop lease (currently limited to when the parties consent) to include correction of a mistake, giving effect to the intention of the parties or reflecting the actual disclosure of information between the parties, and to extend the rectification power to rectification of a disclosure statement, (n) to provide for specialist retail valuers (who determine current market rent when the parties cannot agree) to be appointed by the Registrar rather than the Tribunal, and to make it clear that experience and training requirements for specialist retail valuers can be prescribed by the regulations, (o) to clarify the procedure to be followed by a lessee to obtain the consent of the lessor to an assignment of a retail shop lease and protection from liability to the lessor after assignment, (p) to provide that where a retail shop lease has been awarded by public tender, consent to assignment of the lease can be refused if the assignee fails to meet any criteria of the tender, (q) to provide that for the purposes of the determination of rent by reference to turnover, turnover does not include turnover from online transactions (with limited exceptions), (r) to provide that a lessee cannot be required to provide information to the lessor about turnover from online transactions (with limited exceptions), 12

18 (s) to repeal provision for the payment of interest on lease security bonds deposited with the Secretary, (t) to provide for the issue of penalty notices for offences under the Act or the regulations, (u) to provide for the establishment of an online retail bond service by the Secretary, (v) to clarify the application of the Act to shops that are stalls in a market so that the Act will not apply to stalls in a market except a permanent retail market and to allow the regulations to modify the operation of the Act in relation to shops in a permanent retail market, including by providing for a mandatory code of conduct for lessors and lessees, (w) to remove an unnecessary exception from the Act for premises in an office tower that forms part of a retail shopping centre (on the basis that an office tower above a retail shopping centre does not form part of the retail shopping centre), (x) to enact consequential savings and transitional provisions and to make miscellaneous minor amendments. Key issues in the 2017 amending Act Section 3 definition of lease preparation expenses Omit, except for registration fees under the Real Property Act Insert instead including expenses incurred in connection with obtaining the consent of a mortgagee but does not include registration fees under the Real Property Act [Note the EM describes this as a clarification. Might it have been useful to have also dealt with obtaining the consent of a head lessor explicitly?] The stalls in a market are not a cluster of premises for the purposes of determining a retail shopping centre (but see s 6B). New subsection 3(2): 13

19 (2) A reference in this Act to the lessor or the lessee, in the context of a provision that has application to a proposed retail shop lease, includes a reference to the proposed lessor or proposed lessee. New section 3A: Definition of outgoings (1) In this Act, outgoings means the following: (a) a lessor s outgoings on account of expenses attributable to the management, operation, maintenance or repair of the retail shop building or land, (b) a lessor s outgoings on account of rates, taxes, levies, premiums or charges payable by the lessor because the lessor is the owner or occupier of the retail shop building or land or is the supplier of a taxable supply (within the meaning of the A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth) in respect of the retail shop building or land, (c) fees charged by a lessor for services provided by the lessor in connection with the management, operation, maintenance or repair of the retail shop building or land. (2) In this section, retail shop building or land means the building in which the retail shop is located or (in the case of a retail shop in a retail shopping centre) any building in the retail shopping centre, and includes any areas used in association with any such building. Section 3B: (1) This Act applies to and in respect of an agreement to lease in the same way as it applies to and in respect of a lease. (2) When a lease (the resulting lease) is entered into pursuant to an agreement to lease: (a) a lessor s disclosure statement given for the agreement to lease is deemed to have been given for the resulting lease, and (b) a separate lessor s disclosure statement is not required or permitted to be given for the resulting lease. Retail markets new s 6B: (1) This Act does not apply to a retail shop that is a stall in a market unless the market is a permanent retail market. 14

20 (2) A permanent retail market is an assemblage of stalls, styled or described as a market, that are predominantly used for retail businesses and that operate in a building or other permanent structure the sole or dominant use of which (or of the part in which the market operates) is the operation of the market. Note. A stall in a permanent retail market is not a retail shop to which this Act applies unless it satisfies the definition of retail shop in section 3. The Regulations can modify the operation of the Act for the purposes of this section, and can prescribe a mandatory code of conduct. Section 11 (1) (Lessor s disclosure statement) and s 11A(1) (lessee s DS) redrafted and simplified. New section 11 (2A) entitling lessee terminating for breach of the section to recover compensation. Amended section 11(6): parties to the lease can amend the disclosure statement by written agreement. Minor amendments to section 12. New section 12A lessee not required to pay outgoings unless amount disclosed in disclosure statement; limitations where estimates used. Current sections 15 and 16 omitted. New s15 Lessee to be provided with executed copy of lease (1) A retail shop lease is taken to include a provision to the effect that the lessor must provide the lessee with an executed copy of the lease within 3 months after the lease is returned to the lessor or the lessor s lawyer or agent following its execution by the lessee. (2) That 3-month period is to be extended for any delay attributable to the need to obtain any consent from a head lessor or mortgagee (being delay not due to any failure by the lessor to make reasonable efforts to obtain consent). 16 Certain leases must be registered 15

21 (1) If a retail shop lease is for a term of more than 3 years or if the parties to the lease have agreed that the lease is to be registered, the lessor must lodge the lease for registration in accordance with the Real Property Act 1900 within 3 months after the lease is returned to the lessor or the lessor s lawyer or agent following its execution by the lessee. Maximum penalty: 50 penalty units. (2) The 3-month period within which a lease must be lodged for registration is to be extended for any delay attributable to: a) the need to obtain any consent from a head lessor or mortgagee (being delay not due to any failure by the lessor to make reasonable efforts to obtain consent), or (b) requirements arising under the Real Property Act 1900 that are beyond the control of the lessor. (3) For the purposes of this section, the term of a retail shop lease includes any term for which the lease may be extended or renewed at the option of the lessee. New section 16BA: Lessor must return a bank guarantee within 2 months (the maximum return period) after the lessee completes performance of the obligations under the lease for which the bank guarantee is provided as security. Maximum penalty: 50 penalty units. Compensation payable by the lessor in specified circumstances. Sections 19 and 19A omitted (incorporated into section 31). Section 20(1) additional exclusion from turnover : the amount of revenue from online transactions, other than online transactions where the goods or services concerned are delivered or provided from or at the retail shop (or the retail shopping centre of which the shop forms part) or where the transaction takes place while the customer is at the retail shop (whether or not the goods or services concerned are delivered from or at the retail shop). 16

22 Section 31 incorporates former sections 19 and 19A; powers formerly vested in Tribunal now reside with the Registrar. Appointment of specialist retail valuers now in s 32B. Sections 41 and 41A have been recast: 41 Procedure for obtaining consent to assignment The following procedure applies to the assignment of a retail shop lease that requires the consent of the lessor: (a) A request for the lessor s consent to an assignment of the lease must be made by the lessee in writing. (b) The lessee must provide the lessor with such information as the lessor may reasonably require to be satisfied that the financial resources and retailing skills of the proposed assignee are not inferior to those of the lessee. (c) The lessee must provide the proposed assignee with an updated lessor s disclosure statement (comprising a copy of the lessor s disclosure statement given to the lessee in respect of the lease together with details of any changes that have occurred in respect of the information contained in that disclosure statement since it was given to the lessee). (d) For the purpose of enabling the lessee to provide the proposed assignee with the required updated lessor s disclosure statement, the lessor must provide the lessee with an updated lessor s disclosure statement within 14 days after being requested to do so by the lessee. (e) If the lessor fails to provide the updated lessor s disclosure statement, it is sufficient compliance with the requirement to provide the proposed assignee with an updated lessor s disclosure statement if the lessee instead provides a lessor s disclosure statement completed by the lessee to the best of the lessee s knowledge (but with information as to current outgoings in place of information as to estimated outgoings). (f) The lessor must deal expeditiously with a request for consent to assignment of the lease. (g) The lessor has 28 days (the decision period) to decide whether to consent or to refuse consent to assignment. The decision period starts from when the request for consent was made by the lessee or from when the lessee has complied with the requirements of this section (whichever is later). (h) The lessor is taken to have consented to assignment if the lessee has complied with this section and the lessor has not, within the decision period, given notice in writing to the lessee either consenting or withholding consent to assignment. 17

23 (i) The regulations may prescribe a period that is to replace the period of 28 days as the decision period in this section. 41A Protection of assignor of lease for ongoing business (1) A person (the assignor) who assigns a retail shop lease in connection with the continued use of the shop for the conduct of an ongoing business has no liability to the lessor in respect of amounts payable under the lease by the assignee after the lease is assigned if the lessee complies with the requirements of this section. (2) The assignor must, at least 7 days before the assignment of lease: (a) provide the assignee with an updated lessor s disclosure statement (comprising a copy of the lessor s disclosure statement given to the assignor in respect of the lease together with details of any changes that have occurred in respect of the information contained in that disclosure statement since it was given to the assignor), and (b) provide the assignee with an assignor s disclosure statement in or to the effect of the form set out in Part A of Schedule 2A, and (c) provide the lessor with a copy of the assignor s disclosure statement (as provided to the assignee for the purposes of paragraph (b)) together with a document signed by the assignor and assignee that is in or to the effect of the form set out in Part B of Schedule 2A (the disclosure confirmation). (3) For the purpose of enabling the lessee to provide the proposed assignee with the required updated lessor s disclosure statement, the lessor must provide the lessee with an updated lessor s disclosure statement within 14 days after being requested to do so by the lessee, but if the lessor fails to do so: (a) it is sufficient compliance with the requirement to provide the proposed assignee with an updated lessor s disclosure statement if the lessee instead provides a lessor s disclosure statement completed by the lessee to the best of the lessee s knowledge (but with information as to current outgoings in place of information as to estimated outgoings), and (b) the assignor and assignee can sign the disclosure confirmation on the basis that the lessor s disclosure statement completed and provided by the lessee constitutes the updated lessor s disclosure statement. (4) The protection from liability afforded by this section to the assignor extends to any guarantor or covenantor of the assignor. (5) The assignor (and any guarantor or covenantor of the assignor) is not entitled to the protection of this section if the assignor s disclosure statement contains information that is materially false or misleading. 18

24 New s 47 limiting the power of the landlord to compel the tenant to provide information regarding online transactions (except in the limited circumstances set out in s 47(2)), Tribunal given jurisdiction to deal with rectification claims (s 72AB). Increased monetary jurisdiction to $750,000 (s 73). Penalty notices regime (new s 83A). Amended disclosure statements (Sch 2), Schedule 1A lists uses excluded from the operation of the Act: Automatic teller machine Car parking (not being car parking provided as part of the business of a car park) Children s ride machine Communication towers Digital display screens Display of signage (not including the use of premises from which signage is sold) Internet booth (not being an internet cafe or similar use) Private post boxes Public tables and seating Public telephone Renewable energy generation Renewable energy storage batteries Self-storage units Storage of goods for use or sale in a retail shop (not including storage on premises from which goods are sold) Storage lockers Vending machine * * * * * 19