Australia: NSW government invites submissions on review of Retail Leases Act by 7 February 2014

Last Updated: 3 February 2014
Article by Gary Newton and Jackie Cheung

In brief - Information asymmetry, fidelity of the bargain and fair dealings among areas of concern

The NSW government has invited submissions from interested parties on a number of areas of concern in the Retail Leases Act, as identified in its recently released discussion paper.

Discussion paper identifies key areas of concern in Retail Leases Act

In late November 2013, the NSW Minister for Small Business and Primary Industries, Katrina Hodgkinson, released a discussion paper, 2013 Review of the Retail Leases Act 1994. With changes experienced in the retail leasing market in the past decade, the discussion paper ("the 2013 Review") outlines problems associated with the current operation of the Retail Leases Act ("the Act").

In particular, the 2013 Review identifies eight key areas of concern - information asymmetry, outgoings, fidelity of the bargain, streamlining/simplicity, fair dealings, coverage of the Act, reducing prescriptive regulation and technical issues.

NSW retail leasing legislation and reasons for review

The Act was enacted to promote fair and efficient dealings between tenants and landlords by prescribing minimum standards in retail leasing. However, submissions from the Registrar of Retail Tenancy Disputes, the Office of the NSW Small Business Commissioner and various stakeholders have identified concerns with:

  • The proper administration of the provisions of the Act
  • Continuing and emerging problems within the market which are not adequately addressed by current provisions
  • Current provisions which may no longer be appropriate

Key areas of concern, submissions and closing date

The 2013 Review seeks submissions with respect to the following areas.

Information asymmetry: In light of tenants' disadvantage relative to landlords in access to information, the government is considering whether information on the "whole of the financial deal" relating to a lease should be lodged in a publicly accessible location. The whole of the financial deal refers to the sum of the face rent with adjustment for any side deals agreed under the lease, including all financial and non-financial incentives and concessions.

Further, the 2013 Review also raises the possibility of provisions for the collection of turnover rent data to assist the effective management of the performance of shopping centres.

Outgoings: The recovery of outgoings and the streamlining of reporting obligations of landlords are being considered to promote greater certainty for tenants and to reduce unnecessary costs associated with reporting activities.

Outgoings specifically addressed by the 2013 Review include management fees, advertising and promotion levies, land tax and environmental upgrade agreements. In particular, the government is considering whether land tax should be recoverable from a tenant as an outgoing.

Fidelity of the bargain: The 2013 Review addresses the role of tenants, sub-tenants and lot owners of strata schemes and whether they are afforded adequate protection under the Act. To promote fair and efficient dealings between parties, the 2013 Review considers the introduction of a right of first refusal or a right of last refusal to improve security of tenure for tenants.

Streamlining/simplicity: The 2013 Review considers the development of a standard retail lease and whether such a lease will be of benefit to the leasing industry. Particularly as there are currently numerous versions of retail leases being used in NSW which differ significantly, a standard lease would promote more efficient and fair dealings.

The streamlining of the process of appointing specialist retail valuers, registration, disclosure statements and mortgagee consent fees are also being considered.

Fair dealings: Although there is an implied duty to act in good faith in the performance of contractual obligations, an express duty to act in good faith has been proposed to reduce the number of disputes which arise when parties do not act in good faith.

Coverage of the Act: The government is considering the clarification of the definition of a "retail shop" and the range of commercial premises which are intended to be covered by the Act. In particular, the 2013 Review considers whether publicly listed companies and their subsidiaries should be excluded from the operation of the Act.

Reducing prescriptive regulation: To reduce unnecessary costs and red tape for businesses, the government is considering the removal of the minimum term of five years for a retail lease. The removal of other restrictions in retail tenancy legislation has also been proposed, including assignment and termination for inadequate sales.

Technical issues: In light of the growing online retail market, further clarification of the contribution of turnover data from online sales is required, as the Act does not explicitly provide for online revenue streams.

The 2013 Review also raises problems associated with the remedies and penalties currently imposed under the Act and minor drafting issues which should be remedied.

How to lodge submissions on the review of the Retail Leases Act

Any interested party should make written submissions or comments on the issues addressed by the 2013 Review or other related matters concerning the Act to the Office of the NSW Small Business Commissioner prior to the closing date of Friday 7 February 2014. The Commissioner's website also has the option of an online survey to facilitate the process of lodging submissions.

Gary Newton Jackie Cheung
Leasing - commercial and retail
CBP Lawyers

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Gary Newton
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.