Page 5477 - Week 17 - Wednesday, 4 December 1991
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"Retail premises" is defined as:
premises used or intended to be used, in whole or in part, for carrying on a business involving the sale or hire of goods by retail or the retail provision of services (whether or not that business is carried on with a view to profit) ...
This definition of retail premises has some exclusions which relate mainly to financial services and offices where surgery or professional services are the principal business. Examples of businesses not covered by these exemptions are chiropractors, architects, consulting engineers, dentists, legal practitioners, business consultants, real estate agents and tax agents, while barbers, beauticians, hairdressers, optometrists and pharmacists are covered by the legislation. We have used the lists of inclusions and exclusions from the draft New South Wales code I have already referred to.
Legislation in other States applies only to retail; but there will always be situations where items such as operating expenses of a building will, or at least should, be applied equally to all tenants in the building. These provisions are those relating to the right to renew when a tenant's site's specific goodwill is important to a retailer but only marginal to other service tenancies. The provisions relating to disclosure statements, where once again the retailer is in a very vulnerable position, if unexpected competition is imposed by the decision of a landlord, are also important. They are very important when a tenant is deciding whether to renew or seek a renewal of the lease.
In relation to excessive rentals, this Bill sets out the provisions which deal with the imposition of excessive rentals, that is, rentals that are more than a prudent business person would pay for premises. There is no attempt to protect a business person from his own folly in paying more than the proper rental, if that is the agreement. However, some of the provisions will alleviate the opportunity to have excessive rentals forced onto an unwilling tenant, who may well be forced to accept the arrangement if he wants to renew or continue, or face the loss of his home. These provisions are not entirely new; we have drawn on some provisions that already exist in other States.
The right to seek a renewal - and I emphasise "right" - is probably the most controversial of all the provisions, but the heading I have used provides a real clue. It is the provision which makes all other provisions workable. It provides a real opportunity for the tenant to insist on the rights given in the lease and rights given elsewhere in the Bill.
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