Held Lawyers: Law Matters

HELD LAWYERS
Est.1991
Property & Commercial Law
Law Matters
March 2013 Newsletter
Welcome
In this months bulletin, we consider proposed changes to retail leases legislation in Victoria;
look further at matters relating to Owners Corporations; and note future of financial advice
reforms.
If there are topics you would like us to look into, please let us know.
Each bulletin touches on a broad range of topics in an easy to read, practical way. We aim to
give you a brief, but better understanding of current issues as they arise, and food for thought!
We are happy to visit you in 2013 and provide staff or client briefings about a range of topics
or matters of interest to you. Please feel free to contact us in that regard.
We hope to see you (again) soon in person.
Changes to Retail Leases regulations

(update)
the current all-encompassing disclosure statement will

be replaced by 4 variants: shopping centre tenancy similar to existing
format
non-shopping centre tenancy similar to
existing format
renewal of lease landlord is only required to
disclose
costs arising under the new lease
alteration works
other matters known to the landlord which
may affect the tenant
assignment of lease associated with an ongoing
business to be completed by the tenant and

given to both landlord and proposed assignee
tenant is required to disclose matters including
business records
notices from the landlord
material lease variations
outgoings details
current disputes with the landlord
other matters known to the tenant which may
affect the business as a going concern
a landlord will no longer be obliged to notify the Small
Business Commissioner (SBC) of details of a lease/
renewal within fourteen (14) days after the lease/
renewal is signed by all parties
clarification that any person who offers or advertises
premises for lease must provide, as soon as
negotiations are entered into, a copy of the following
pro-forma lease
disclosure statement
SBC prescribed Information Brochure (a new
version has been released)
Malvern Office
Carlton Office
Postal Address
Contact Details
Level 1, 180-182
Glenferrie Rd
MalvernVIC3144
(corner Winter St)
Melway59C8
113 Cardigan St
CarltonVIC3053
Melway2BF10
P.O. Box 467

Malvern VIC 3144
W: www.heldlawyers.com
T: 03 9509 0710
M: 0407 548 632
F: 03 9500 0805
E: [email protected]
In our December 2012 Newsletter, we alerted you to

proposed changes to retail leases legislation in Victoria.
The Retail Leases Regulations 2013 are proposed
to replace existing regulations which expire on 23 April
2013. Main changes include:
and the proposed tenant must receive the above

copies at least
seven (7) days before a new lease is entered into
twenty-one (21) days before the end of the
current lease term for a lease renewed by option
fourteen (14) days after an agreement to renew
for a lease renewed by agreement
Owners Corporation certificates, part 2

How much can an Owners Corporation (manager) charge
for complying with Section 32(3A) of the Sale of Land
Act 1962? The prescribed fee for an Owners Corporation
Certificate pursuant to regulation 10 of the Owners
Corporation Regulations 2007 is $150.00. However,
increasingly common practice which we have encountered
is that:
such a certificate will for the prescribed fee be
supplied within ten days of ordering and payment
for a certificate supplied within three days, add an
urgency loading of a further $150 (i.e. $300 total)
sometimes for a certificate supplied within 24 hours,
add an urgency loading of around a further $300
(i.e. around $450 total)
Furthermore, we have also come across examples where:
(compulsory from 1 July 2013):

requiring financial advisers to act in their clients
best interests
banning financial advisers of new clients receiving
commissions from firms selling financial products
adviser agreements must be renewed every 2 years
ASIC has now released regulatory guides, outlining new
disclosure requirements for Australian Financial Services
licensees, which include:
fee disclosure statements will need to be provided
annually by licensees to clients who pay under an
ongoing fee arrangement (Regulatory Guide 245)
the best interests duty and related obligations rest
with the individual financial adviser, not the providing
entity (Regulatory Guide 175)
While best interests has not been defined, the key objective
test will be whether the client, in all the circumstances will
be left in a better position according to the standard of a
reasonable advice provider. Factors to take into account
are listed in RG175. An advice provider must show they
have taken steps set out in Section 961B(2) in order to
show they have complied with the best interests duty.
there are several active Owners Corporation

affecting a property, with virtually identical owners
corporation certificates being supplied but
nevertheless charged for at the same full rate.
If the advice provider has complied with the their Section

961B best interests duty, Section 961G provides that
the resulting advice only be given if it can reasonably be
concluded that is appropriate for the client.
a request for an update on an owners corporation

certificate has been met with a request for a fresh
fee to issue a new owners corporation certificate. In
our May 2012 Newsletter, we noted that:
Referrals
certificates can be relied upon for as long as the

information contained therein is accurate
this might be 1 month, or 6 months, or even a
year.
In a recent article by Nick McKenzie and Richard Baker
in The Age (6/2/2013, p. 4), they report that there is
currently little regulation or oversight of Victorias 500 or
so Owners Corporation managers. They point out that
the State Government has committed to registering all
managers in a new national system by the end of 2013.
However, this will not at this time lead to more oversight or
enforcement.
Future of Financial Advice (FOFA) reforms

best interests
In our June 2012 Newsletter, we noted that legislation had
just passed the Senate, taking effect from 1 July 2012
Should you require non-legal assistance with various

matters, we are happy to provide you with contact details for
a range of service providers, including financial institutions,
accountants, real estate agents, brokers, etc.
Areas of practice
Property Law including conveyancing and leasing
Commercial and Business Law
Banking and Finance Law including mortgages
and guarantees
Wills and Estates Law
Intellectual and Industrial Property Law
Litigation
If you would like further details or assistance or to discuss
information contained in this publication or generally, please
do not hesitate to contact us. For copies of this and other
publications, visit our website at www.heldlawyers.com.
Disclaimer
This publication is intended to provide commentary and general information only. It should not be relied upon as legal advice. It is not intended to be a complete
or definitive statement of the law on the subject matter covered. Further professional advice should be sought before any action is taken in relation to the matters
described in this publication. Persons listed may not be admitted in all jurisdictions.
Liability limited by a scheme approved under Professional Standards Legislation
ABN: 55 568 546 729

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HELD LAWYERS

Property & Commercial Law

March 2013 Newsletter

Changes to Retail Leases regulations

the current all-encompassing disclosure statement will

business to be completed by the tenant and

P.O. Box 467

In our December 2012 Newsletter, we alerted you to

and the proposed tenant must receive the above

Owners Corporation certificates, part 2

(compulsory from 1 July 2013):

there are several active Owners Corporation

If the advice provider has complied with the their Section

a request for an update on an owners corporation

certificates can be relied upon for as long as the

Future of Financial Advice (FOFA) reforms

Should you require non-legal assistance with various

ABN: 55 568 546 729

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