The NSW Government is looking at the law covering retail leases, the Retail Leases Act 1994 (NSW). Similar reviews of equivalent Acts have taken place in states such as Victoria, Queensland and Western Australia.

The Office of the NSW Small Business Commissioner and Registrar of Retail Tenancy Disputes suggests that the retail sector is changing.

They say retailers face new challenges such as rapidly growing online sales and overseas retailers entering the market.

The following issues are listed amongst those being considered:

  • Information asymmetry – this relates to the claimed lack of information currently available to retailers when entering into a lease. For example, side deals (incentives negotiated between the parties) are not registered, making it hard for retailers to determine the whole of the true financial deal for other tenancies from looking at the register. The review asks whether information about side deals should be in a publicly available site/location.
  • Outgoings – outgoings are the expenses incurred by a landlord in the operation, maintenance or repair of the property. This includes taxes. What outgoings should landlords be allowed to recover from tenants? Is there a way to provide more certainty as to what outgoings a tenant will have to pay the landlord? Will management fees be excluded?
  • Fair dealings – should there be a requirement under the Act to act in good faith?
  • Coverage of the Act – does the Act cover all that it should? For example, should the Act cover retail shops that are part of office towers?
  • Technical issues – what is the appropriate way for provisions of the Act to be enforced? Should penalties/remedies under the Act be changed? Should the Act also deal with revenue from online sales?

You can view the Review Paper in full on the NSW Small Business Commissioner's website.

The Government has invited recommendations or comments by interested stakeholders. If you would like to contribute, a survey is available at <http://www.smallbusiness.nsw.gov.au/RLA-review-2013> or send an email to retail.review@smallbusiness.nsw.gov.au.

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