BUSINESS TENANCIES (FAIR DEALINGS) REGULATIONS 2004

NORTHERN TERRITORY OF AUSTRALIA BUSINESS TENANCIES (FAIR DEALINGS) REGULATIONS 2004 As in force at 24 May 2017 Table of provisions Part 1 Preliminary 1 Citation ............................................................................................ 1 2 Commencement .............................................................................. 1 Part 2 Forms 3 Prescribed forms ............................................................................. 1 4 Landlord's disclosure statement ...................................................... 1 5 Tenant's disclosure statement ......................................................... 1 6 Assignor's disclosure statement ...................................................... 1 7 Application for determination of retail tenancy claim........................ 2 8 Certificate of failure to resolve tenancy claim .................................. 2 Part 3 Miscellaneous 9 Conciliator: qualifications of Commissioner's delegate .................... 2 10 Exemptions from Act ....................................................................... 2 Schedule Prescribed forms ENDNOTES -- 1 of 20 -- -- 2 of 20 -- NORTHERN TERRITORY OF AUSTRALIA ____________________ As in force at 24 May 2017 ____________________ BUSINESS TENANCIES (FAIR DEALINGS) REGULATIONS 2004 Regulations under the Business Tenancies (Fair Dealings) Act 2003 Part 1 Preliminary 1 Citation These Regulations may be cited as the Business Tenancies (Fair Dealings) Regulations 2004. 2 Commencement These Regulations come into operation on the commencement of the Business Tenancies (Fair Dealings) Act 2003. Part 2 Forms 3 Prescribed forms A reference in these Regulations to a form by number is a reference to the form of that number in the Schedule. 4 Landlord's disclosure statement For section 19(2) of the Act, the information or material to be contained in or attached to a landlord's disclosure statement is specified in Form 1, Part A. 5 Tenant's disclosure statement For section 21(2) of the Act, the information or material to be contained in or attached to a tenant's disclosure statement is specified in Form 1, Part B. 6 Assignor's disclosure statement For section 56(d) of the Act, the information or material to be contained in or attached to an assignor's disclosure statement is specified in Form 2. -- 3 of 20 -- Part 3 Miscellaneous Business Tenancies (Fair Dealings) Regulations 2004 2 7 Application for determination of retail tenancy claim For section 86(3) of the Act, the form of an application in respect of a retail tenancy claim is set out in Form 3. 8 Certificate of failure to resolve tenancy claim For section 104(2) of the Act, the form of the certificate is set out in Form 4. Part 3 Miscellaneous 9 Conciliator: qualifications of Commissioner's delegate For section 89(3) of the Act, the qualifications of a delegate of the Commissioner conducting a conciliation conference are the following: (a) competence in alternative dispute resolution; (b) knowledge of the rights, obligations and liabilities conferred or imposed under the Act on parties to a retail shop lease; (c) knowledge of accepted practices concerning the leasing of retail shops. 10 Exemptions from Act (1) For section 8 of the Act, an airport retail shop lease is exempt from the operation of the Act for 6 months commencing on the date on which this regulation comes into operation. (2) In this regulation: airport retail shop lease means: (a) a retail shop lease granted by Darwin International Airport Pty Ltd (ACN 081 258 157) in respect of property located at Lot 3381 Hundred of Bagot; (b) a retail shop lease granted by Tennant Creek Airport Pty Ltd (ACN 081 258 344) in respect of property located at Lots 998 and 1281 Town of Tennant Creek; or (c) a retail shop lease granted by Alice Springs Airport Pty Ltd (ACN 081 258 246) in respect of property located at NT Portions 428, 429, 569, 806, 995, 1025, 3839, 3840, 4004, 4005, 4054 and 4437. -- 4 of 20 -- Schedule Prescribed forms Business Tenancies (Fair Dealings) Regulations 2004 3 Schedule Prescribed forms regulation 3 FORM 1 regulations 4 and 5 NORTHERN TERRITORY OF AUSTRALIA Business Tenancies (Fair Dealings) Act 2003 sections 19(2) and 21(2) LANDLORD'S AND TENANT'S DISCLOSURE STATEMENTS RELATING TO RETAIL SHOP LEASE PART A – LANDLORD'S DISCLOSURE STATEMENT Note: Complete only the items that are applicable. Where # is indicated, delete the words that are inapplicable. 1. THE LANDLORD Landlord's name: Landlord's trading name: Landlord's address: Name of landlord's agent: Address of landlord's agent: 2. THE TENANT Tenant's name: Tenant's trading name: Tenant's address: 3. THE RETAIL SHOP Address of the retail shop being leased: Shop number if the retail shop is within a retail shopping centre: Net lettable area of the retail shop in square metres: (State whether actual or estimated. If estimated, state whether a survey will be conducted.) Finishes, fixtures, fittings, equipment and services to or in the retail shop provided by the landlord: The tenant #is/is not# required to contribute to the cost of finishes, fixtures, fittings, equipment and services to or in the retail shop provided by the landlord. #The extent to which the tenant is required to contribute to those costs: -- 5 of 20 -- Schedule Prescribed forms Business Tenancies (Fair Dealings) Regulations 2004 4 4. THE RETAIL SHOPPING CENTRE (CENTRE) Note: This item must be completed only if the retail shop is located within a retail shopping centre. Name of centre: Address of centre: Number of retail shops in the centre: Gross lettable area of the centre: (State whether actual or estimated. If estimated, state why and state when actual will be available.) Number of car park bays at the centre in total: Number of car park bays at the centre for the tenant's exclusive use: Core trading hours of the centre: Hours of access to the retail shop outside the core trading hours of the centre: The floor plan of the centre is #attached/not attached#. Tenancy mix (by category) of the centre: The tenancy mix of the centre #is/is not# likely to change over the term of the lease. The landlord #has/has not# obtained planning approval for any renovations, redevelopments or extensions of the Centre. (If the landlord has obtained planning approval, provide details.) 5. THE RETAIL SHOP LEASE Note: Under the Business Tenancies (Fair Dealings) Act 2003, tenants have the right to a minimum 5 year tenancy. The tenant may waive this right if the tenant obtains a certificate from a legal practitioner in accordance with section 26 of the Act. 5.1 Term of lease Term: Options for further terms: Actual date, or estimated date if actual date is not known, on which the landlord will hand over the retail shop to the tenant: (If estimated, state how the actual date is to be determined. ) Actual date, or estimated date if actual date is not known, on which the lease will commence: (If estimated, state how the actual date is to be determined. ) 5.2 Permitted use Permitted use: The tenant will have exclusive rights to sell the following goods or services: The tenant may not sell the following goods or services: (State that the tenant is required to conduct permitted use and nothing else, and set out any express exclusions. ) -- 6 of 20 -- Schedule Prescribed forms Business Tenancies (Fair Dealings) Regulations 2004 5 5.3 Base rent The base rent payable by the tenant for the term of the lease is: Period* Rent* Adjustment method on review (e.g. year 1 + 5% ) (e.g. year 1 + 5% ) * Based on estimated commencement date if actual not known. The base rent is payable as follows: Date for rent payments under the lease: (e.g. By equal monthly instalments in advance on the first day of each month except for the first and last payments, which will be pro rata. ) Date for first payment of rent under the lease: (e.g. State commencement date or, if a rent free period, state the number of days/weeks or a date after commencement date. ) #The base rent payable by the tenant for the further term/s of the lease is/are: Period Rent Adjustment method on review 5.4 Percentage/Turnover Rent The tenant #is/is not# required to pay any rent based on turnover. #The rent based on turnover payable by the tenant is calculated as follows: (Include the percentage of gross sales, the base from which percentage rent cuts in and whether that base changes. ) 5.5 Outgoings for retail shopping centres Note: This item must be completed only if the retail shop is located within a retail shopping centre and the lease requires the tenant to contribute (in whole or in part) to any outgoings of the centre. The estimated outgoings for the retail shopping centre for the current outgoings year are set out in the following table. This estimate was prepared at the commencement of the outgoings year. Actual outgoings will be calculated and reconciled with appropriate adjustments made at the end of the outgoings year. -- 7 of 20 -- Schedule Prescribed forms Business Tenancies (Fair Dealings) Regulations 2004 6 Outgoings category Estimate per annum Air conditioning Ventilation Building intelligence and emergency systems Security Fire protection Insurance Electricity Water Telephones Gas and oil Lifts and elevators Public address and music Signs Uniforms Child minding Car parking Gardening and landscaping Cleaning Disposals Local government rates and charges Repairs and maintenance Sewerage and drainage rates and charges Administration costs Management fees Pest control Audit fees Energy Management Systems Other charges to be borne by the tenant (Specify) The following formulae are used to apportion outgoings expenses to the tenant: Core trading hours outgoings Outgoings directly assessed on retail shop After hours outgoings Services (gas, telephone, electricity, water etc.) (State whether the tenant will be required to pay direct to the supply authority for water, gas, telephone and electricity supplied to and consumed in the retail shop or whether they will be part of outgoings .) -- 8 of 20 -- Schedule Prescribed forms Business Tenancies (Fair Dealings) Regulations 2004 7 Other (Specify) 5.6 Outgoings for retail shop not located in a retail shopping centre Note: This item must be completed only if the retail shop is not located within a retail shopping centre and the lease requires the tenant to contribute (in whole or in part) to any outgoings of the landlord. The estimated outgoings for the current outgoings year for the building in which the retail shop is located are set out in the following table. This estimate was prepared at the commencement of the outgoings year. Actual outgoings will be calculated and reconciled and, where appropriate, adjustments made at the end of the outgoings year. Outgoings category Estimate per annum Air conditioning Ventilation Building intelligence and emergency systems Security Fire protection Insurance Electricity Water Telephones Gas and oil Lifts and elevators Public address and music Signs Uniforms Child minding Car parking Gardening and landscaping Cleaning Disposals Local government rates and charges Repairs and maintenance Sewerage and drainage rates and charges Administration costs Management fees Pest control Audit fees Energy Management Systems Other charges to be borne by the tenant (Specify) -- 9 of 20 -- Schedule Prescribed forms Business Tenancies (Fair Dealings) Regulations 2004 8 #The following formulae are used to apportion outgoings expenses to the tenant: Core building hours outgoings Outgoings directly assessed on retail shop After hours outgoings Services (gas, telephone, electricity, water etc.) (State whether the tenant will be required to pay direct to the supply authority for water, gas, telephone and electricity supplied to and consumed in the retail shop or whether they will be part of outgoings.) Other 5.7 Promotions and marketing The tenant must pay the following marketing and promotional expenses during the term of the lease: Expenses items Estimate per annum Contribution to promotion/marketing fund Centre catalogues Tenant advertising Other 5.8 Goods and services tax The tenant #must/is not required to# pay the landlord the amount of any goods and services tax payable on any supply from the landlord to the tenant under or as a result of the lease. 6. TENANT'S FITOUT AND REFURBISHMENT WORKS The landlord requires the tenant to perform, at the tenant's expense, the following fitout or refurbishment works (or both): Before the commencement date of the lease: During the term of the lease: 7. RELOCATION/DEMOLITION The lease #does/does not# include a relocation clause. The lease #does/does not# include a demolition clause. -- 10 of 20 -- Schedule Prescribed forms Business Tenancies (Fair Dealings) Regulations 2004 9 8. ADDITIONAL REPRESENTATIONS The following representations were made by the landlord or the landlord's agent to the tenant during negotiations for the lease: Other than the representations included in this landlord's disclosure statement and the lease, no other representations were made by the landlord or the landlord's agent. 9. DECLARATION BY LANDLORD OR LANDLORD'S AGENT I acknowledge that this landlord's disclosure statement contains all written representations by the landlord and the landlord's agent in relation to the proposed retail shop lease. I am satisfied that all agreements are fully reflected in this landlord's disclosure statement. I have not knowingly withheld information that is likely to have an impact on the tenant's proposed business. Signed: …………………………................................. #Landlord/Landlord's Agent# Date: …………………..……………………………. PART B – TENANT'S DISCLOSURE STATEMENT Note: This tenant's disclosure statement must be completed by the tenant and returned to the landlord or the landlord's agent before the lease is entered into by the parties. A lease is entered into on the earliest of the following: (i) the tenant entering into possession of the retail shop; (ii) the tenant commencing to pay rent; (iii) the lease being signed by all parties. 1. ACKNOWLEDGMENT OF RECEIPT The tenant acknowledges that a copy of the proposed retail shop lease was received from the landlord or the landlord's agent before the tenant entered into the lease. The tenant acknowledges that the landlord's disclosure statement was received from the landlord or the landlord's agent: # at least 7 days before entering into the lease. # less than 7 days before entering into the lease and the tenant has obtained a certificate from a legal practitioner in accordance with section 19(6) of the Business Tenancies (Fair Dealings) Act 2003. -- 11 of 20 -- Schedule Prescribed forms Business Tenancies (Fair Dealings) Regulations 2004 10 2. ADDITIONAL REPRESENTATIONS The tenant has not, in entering into the retail shop lease, relied on any representations made by the landlord or the landlord's agent other than those set out in the lease and at item 8 of the landlord's disclosure statement. Apart from the representations and statements referred to in the previous paragraph, no other promises, representations, warranties or undertakings have been made or given by the landlord or the landlord's agent in respect of the retail shop, or the business to be carried out at the retail shop or (if applicable) the retail shopping centre or building in which the retail shop is located. The tenant has #sought/not sought# independent advice in respect of the commercial terms contained in the landlord's disclosure statement and the obligations contained in the proposed retail shop lease. The tenant believes that the tenant will be able to fulfil the obligations contained in the lease, including the payment of the proposed rent, outgoings and other amounts, based on the tenant's own business projections for the business. Signed: ………………………………….…………. Date: ………………….. #Tenant/On behalf of tenant# ……………………………...………………. Full name of person signing (please print) ………………………………...……………. Position of person signing -- 12 of 20 -- Schedule Prescribed forms Business Tenancies (Fair Dealings) Regulations 2004 11 FORM 2 regulation 6 NORTHERN TERRITORY OF AUSTRALIA Business Tenancies (Fair Dealings) Act 2003 section 56(d) ASSIGNOR'S DISCLOSURE STATEMENT 1. The assignor has provided the assignee with the most recent landlord's disclosure statement in respect of the retail shop lease together with details of any changes (of which the assignor is aware) to the information contained in the disclosure statement since the statement was given. 2. The assignee has been advised that there are no outstanding notices in respect of the retail shop lease. 3. The assignee has been advised that there are no outstanding notices from any authority in respect of the retail shop. 4. The assignee has been advised that there #are/are not# any encumbrances on the retail shop lease. 5. The assignee has been advised that there #are/are not# any encumbrances on, or outside ownership of, any of the fixtures and fittings within the retail shop. 6. The landlord #has/has not# conferred any rent concessions or other benefits on the assignor during the term of the lease. #The concessions and benefits conferred on the assignor are: Signed: ………………………………….…………. Date: ………………….. #Assignor/On behalf of assignor# ……………………………...…… ………………………... Full name of person signing (please print) Position of person signing Signed: ………………………………….…………. Date: ………………….. #Assignee/On behalf of assignee# ……………………………...………… ………………………………... Full name of person signing (please print) Position of person signing Note: # Delete if inapplicable. -- 13 of 20 -- Schedule Prescribed forms Business Tenancies (Fair Dealings) Regulations 2004 12 FORM 3 regulation 7 NORTHERN TERRITORY OF AUSTRALIA Business Tenancies (Fair Dealings) Act 2003 section 86(3) APPLICATION TO COMMISSIONER OF BUSINESS TENANCIES FOR DETERMINATION OF RETAIL TENANCY CLAIM Note: Before completing this form, please read the notes at the foot of the form. To: Commissioner of Business Tenancies 1st Floor The Met Building 13 Scaturchio Street, Casuarina, NT 0810 or PO Box 40946 Casuarina, NT 0811 Phone: 8999 1999 Toll free: 1800 019 319 Fax: 8999 6260 Email: [email protected] 1. DETAILS OF RETAIL SHOP LEASE (Complete applicable items. ) Tenant's name on retail shop lease: Business or trading name of tenant: Tenant's ACN: Tenant's ABN: Tenant's postal address: Landlord's name: Business or trading name of landlord: Landlord's postal address: Street address of the retail shop, including the shop number and (if applicable) the shopping centre name: Type of use of the retail shop: Date of commencement of the current retail shop lease or lease extension: -- 14 of 20 -- Schedule Prescribed forms Business Tenancies (Fair Dealings) Regulations 2004 13 2. DETAILS OF APPLICANT (the person making this application) (Complete applicable items. If there is more than one applicant, provide the name and address of the second and each subsequent applicant, and of each applicant's representative, using copies of the attachment to this form.) Applicant's status: [ ] Landlord (tick as applicable) [ ] Tenant [ ] Assignee [ ] Other (describe) 2.1 Details if applicant is a company Company name: Company's ACN: Company's ABN: Name of person to contact for applicant: Postal address, including suburb/city/town, State and postcode: Phone (b/h): Email address: 2.2 Details if applicant is not a company Name: ABN: Postal address, including suburb/city/town, State and postcode: Phone (b/h): Email address: 2.3 Details of applicant's representative (e.g. legal practitioner) (Refer to section 111 of the Act for details about other persons who may represent a party.) Name: Postal address, including suburb/city/town, State and postcode: Phone (b/h): Email address: -- 15 of 20 -- Schedule Prescribed forms Business Tenancies (Fair Dealings) Regulations 2004 14 3. DETAILS OF RESPONDENT (the other party to the dispute) (Complete applicable items. If there is more than one respondent, provide the name and address of the second and each subsequent respondent, and of each respondent's representative, using copies of the attachment to this form.) Respondent's status: [ ] Landlord (tick as applicable) [ ] Tenant [ ] Assignee [ ] Other (describe) 3.1 Details if respondent is a company Company name: Company's ACN: Company's ABN: Name of person to contact for respondent: Postal address, including suburb/city/town, State and postcode: Phone (b/h): Email address: 3.2 Details if respondent is not a company Name: ABN: Postal address, including suburb/city/town, State and postcode: Phone (b/h): Email address: 3.3 Details of respondent's representative (if known) (Refer to section 111 of the Act for details about persons who may represent a party.) Name: Postal address, including suburb/city/town, State and postcode: Phone (b/h): Email address: 4. DETAILS OF DISPUTE (Give a brief summary nature of the dispute, briefly setting out the facts relevant to the claim. THE SUMMARY AND FACTS WILL BE FORWARDED TO THE RESPONDENT. LODGMENT OF THIS FORM INDICATES YOUR AGREEMENT TO THIS. If you wish to provide additional documents relevant to this matter, e.g. the -- 16 of 20 -- Schedule Prescribed forms Business Tenancies (Fair Dealings) Regulations 2004 15 lease, attach them to this form or forward them separately under cover of a letter to the Commissioner of Business Tenancies, clearly identifying the dispute.) Total monetary claim: $......................................... Remedy sought: (Specify briefly. ) SIGNATURE OF APPLICANT: ......................................................................... Date: ....................../................/.................... Application fee: At this time no application fee has been prescribed under section 87(1) of the Business Tenancies (Fair Dealings) Act 2003. Lodged with the Commissioner on …………………………………… Date Notes Before completing this Application, please consider discussing this matter with a legal practitioner or contacting NT Consumer Affairs on 08 8999 1999 or 1800 019 319. This form is to be used to apply to the Commissioner of Business Tenancies for a determination of a retail tenancy claim. Further information in relation to business tenancies can be found in the Business Tenancies section of the NT Consumer Affairs website (www.consumeraffairs.nt.gov.au). If you have any questions relating to the dispute resolution process, please contact NT Consumer Affairs for assistance. ATTACHMENT TO FORM 3 (To be used if there is more than one applicant or respondent, to provide the name and address of the second and each subsequent applicant or respondent, and of each representative.) Details relating to: Second / Third / Fourth / Fifth (circle applicable applicant or respondent number) Applicant / Respondent (circle applicable) -- 17 of 20 -- Schedule Prescribed forms Business Tenancies (Fair Dealings) Regulations 2004 16 Details if applicant/respondent is a company Company name: Company's ACN: Company's ABN: Name of person to contact for applicant: Postal address, including suburb/city/town, State and postcode: Phone (b/h): Email address: Details if applicant/respondent is not a company Name: ABN: Postal address, including suburb/city/town, State and postcode: Phone (b/h): Email address: Details of applicant's/respondent's representative (if known) (Refer to section 111 of the Act for details about persons who may represent a party.) Name: Postal address, including suburb/city/town, State and postcode: Phone (b/h): Email address: -- 18 of 20 -- Schedule Prescribed forms Business Tenancies (Fair Dealings) Regulations 2004 17 FORM 4 regulation 8 NORTHERN TERRITORY OF AUSTRALIA Business Tenancies (Fair Dealings) Act 2003 section 104(2) CERTIFICATE OF FAILURE TO RESOLVE RETAIL TENANCY CLAIM I, , the Commissioner of Business Tenancies, issue this certificate to the following parties to an application for determination of a retail tenancy claim: Applicant/s name/s and status: Respondent/s name/s and status: The application was lodged on: The following conferences were held in an attempt to resolve the claim: I am satisfied that the parties have failed to resolve the claim and are unlikely to do so, and the claim is within a court's jurisdiction referred to in section 105 of the Business Tenancies (Fair Dealings) Act 2003. The details of the claim are as follows: Name of tenant: Trading name of tenant: Name of landlord: Trading name of landlord: Details of retail shop: Brief description of the dispute: Total monetary claim: Signed: ……………………..……………..……………….. Commissioner of Business Tenancies -- 19 of 20 -- ENDNOTES Business Tenancies (Fair Dealings) Regulations 2004 18 ENDNOTES 1 KEY Key to abbreviations amd = amended od = order app = appendix om = omitted bl = by-law pt = Part ch = Chapter r = regulation/rule cl = clause rem = remainder div = Division renum = renumbered exp = expires/expired rep = repealed f = forms s = section Gaz = Gazette sch = Schedule hdg = heading sdiv = Subdivision ins = inserted SL = Subordinate Legislation lt = long title sub = substituted nc = not commenced 2 LIST OF LEGISLATION Business Tenancies (Fair Dealings) Regulations (SL No. 18, 2004) Notified 9 June 2004 Commenced 1 July 2004 (r 2, s 2 Business Tenancies (Fair Dealings) Act 2003 (Act No. 55, 2003) and Gaz G9, 3 March 2004, p 5) Amendment of Business Tenancies (Fair Dealings) Regulations (SL No. 42, 2004) Notified 22 December 2004 Commenced 22 December 2004 Business Tenancies (Fair Dealings) Amendment Regulations 2017 (SL No. 9, 2017) Notified 24 May 2017 Commenced 24 May 2017 3 GENERAL AMENDMENTS General amendments of a formal nature (which are not referred to in the table of amendments to this reprint) are made by the Interpretation Legislation Amendment Act 2018 (Act No. 22, 2018) to: rr 1 and 2 and sch. 4 LIST OF AMENDMENTS r 10 ins No. 42, 2004, r 2 sch amd No. 9, 2017, r 3 -- 20 of 20 --