Retail legislation  The gift that keeps on giving

Retail legislation
The gift that keeps on giving

So many things have annoyed me about the retail legislation since Christmas that it is hard to know where to start. Let me give an example of how the legislation can be manipulated to achieve outcomes for which I hope it was never intended. Relocation In NSW, I have been assisting the owner of an office tower with ground floor retail. The development is a single complex, but it is possible to manage the office and retail components separately. The owner needed to refresh the retail podium. This required substantial work. There was…Read more
Time to defenestrate the five year term

Time to defenestrate the five year term

In 2013 the Small Business Commissioner of New South Wales published a Review of the Retail Leases Act. One of the important issues flagged in the Review questions whether the minimum five year term is still required. The question is important because the minimum five year term sucks a lot of oxygen out of the management greenhouse. I am not sure what informed the decision to legislate for a minimum five year term in the first place, but the thinking seems to have been that tenants sometimes make a significant investment in fit…Read more
The Home Building Amendment Bill 2014

The Home Building Amendment Bill 2014

In June 2014 the Home Building Amendment Bill 2014 (Bill) received Royal Assent. Introducing over 50 amendments to the current Home Building Act 1989 (Act), the Bill is the product of an extensive reform process targeted towards ensuring the Act reflects current industry practice and procedure. Once the Bill is proclaimed, the following key amendments will take effect. Statutory warranties for “major defects” For the purposes of statutory warranties, distinguishing between structural and non-structural defects will become a thing of the past. The Bill replaces “structural defects” with the concept of “major defects”…Read more
Landlord v Administrator  A Bare Knuckle Brawl

Landlord v Administrator
A Bare Knuckle Brawl

Perceptive readers may have sensed my antipathy towards the retail lease legislation. In order to show that I am not just a one trick pony, this article will give the legislation a rest. Instead we will touch on one of my other interests: the interaction of lease and insolvency law when a tenant goes belly up. (I know, I know: I have to get out more). For a lawyer, there is nothing more elemental than a bare knuckle fight between an administrator and a landlord over rights to a failed tenant’s fitout. What…Read more
Retail Lease Legislation  Yesterday’s Hero

Retail Lease Legislation
Yesterday’s Hero

As shopping centre owners and retailers struggle for traction in the face of significant commercial headwinds, it is important for the industry to find ways of becoming more efficient and competitive. The patchwork quilt of Australian retail lease legislation now hangs like an anchor around the neck of the retail industry. When enacted, between 15 and 20 years ago, the legislation was designed to redress perceived imbalance in negotiating power between landlords and tenants. The legislative framework established minimum standards for lease provisions, and imposed conditions on landlord conduct, designed to protect tenants…Read more
Review of Queensland’s Retail Leasing Legislation

Review of Queensland’s Retail Leasing Legislation

The Queensland Department of Justice and Attorney-General has released a Discussion Paper, designed to “form the basis of the consultation process for the review” of the Retail Shop Leases Act 1994. The need for the review stems from section 122 of the Act which provides that every seven years: “The Minister must carry out reviews of the operation of this Act to decide whether its provisions remain appropriate” Like so much of the retail leasing legislation in Australia, this enactment is ambiguous. On one view, the section calls for a line by line…Read more
Core trading hours  Making productivity harder

Core trading hours
Making productivity harder

It is hard these days to go past a politician or economist who is not flogging the productivity horse. Businesses are exhorted at every turn to implement micro reforms with the goal of improving their productivity. Try implementing micro reform in the management of shopping centres with the dead weight of the retail legislation hanging around your neck. The regulation of core trading hours is a good example of the way in which the retail legislation tangles up the path to productivity. In New South Wales, the core trading hours of a shopping…Read more
Retail lease legislation Doing more harm than good

Retail lease legislation
Doing more harm than good

My New Years' resolution was to stop kicking the retail lease legislation dog, and to let the legislation do its important work in peace. After all, the legislation has paid for the education of my children: I should be grateful for its spotty application and its ability to defy rational understanding. But I am weak, and I have been thinking about Lockrey v Historic Houses Trust NSW [2012] NSWSCA. There is a full moon, and I cannot resist the urge to come out of the cage for another swipe. The judgment is yet…Read more
Shopping centre management in a post Paddy’s state

Shopping centre management in a post Paddy’s state

The decision of the Court of Appeal in Sydney Markets Limited v Wilson [2011] NSW CA 201 (the Paddy's Market Case) appears to have made shopping centre management a little trickier. Section 3 of the RLA defines "retail shop" to mean: premises that: (a)  are used, or proposed to be used, wholly or predominantly for the carrying on of one or more of the businesses prescribed for the purposes of this paragraph .., or (b)  are used, or proposed to be used, for the carrying on of any business…in a retail shopping centre…Read more
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