The Retail and Other Commercial Leases (COVID-19) Regulation 2020 (Regulation) was amended on 3 July by the Retail and Other Commercial Leases (COVID-19) Amendment Regulation 2020 (Amendment Regulation). You can read our update on the Regulation, written when the Regulation was initially released in April 2020, here.
The obligation to renegotiate rent and other terms - changes to clause
The main change to the Regulation introduced by the Amendment Regulation is to the clause which sets out the obligation to renegotiate rent and other terms of commercial leases before the lessor can take a prescribed action (clause 7 of the regulation made under the Retail Leases Act 1994; clause 5 of schedule 5 of the amendment of the Conveyancing (General) Regulation 2018).
The Amendment Regulation has clarified that the clause only applies to a lease to which an impacted lessee is a party.
Further, new sub clauses now provide that an impacted lessee must give a statement to the lessor that the lessee is an impacted lessee and provide supporting evidence. If the impacted lessee fails to do so, the lessor is taken to have complied with the clause.
Relevance of change
The statement that the lessor will be taken to have complied with the clause is relevant due to clause 7(1) (of the regulation made under the Retail Leases Act 1994), which states that a lessor must not take any prescribed action against an impacted lessee due to a failure to pay rent during the prescribed period unless the lessor has complied with the clause. Therefore, this amendment makes clear that if a lessee has failed to provide sufficient proof that they are an impacted lessee, the lessor has complied with clause 7 and is permitted to take prescribed actions during the prescribed period.
The changes apply only to negotiations which have not yet completed, and do not extend to matters for which court or Tribunal proceedings are underway.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2021.