Commercial and retail leases Lawyers Sydney

Commercial & Retail Leases

A lease is a legally binding contract between two parties (1) the lessor (or landlord) and (2) the lessee (or tenant), that defines their rights and obligations with respect to property. The key distinguishing factor between a lease and licence is that a lease entitles the lessee to exclusive possession whereas a licence does not. Commercial lease is a catch–all term that describes all leases of a commercial nature including retail leases. 

Retail leases

When it comes to business leases, the lease you require depends on the nature of the business you wish to conduct on the premises. You will require a retail lease if you wish to use the leased premises, wholly or predominantly, for the purpose of a business that is prescribed by legislation as being a retail lease e.g. shops found in shopping centres etc or, in summary, a business that engages in the selling, hiring or providing of goods or services to the public in a retail setting. In NSW, retail leases attract additional regulation under the Retail Leases Act 1994 (NSW) and generally provide greater protections for the lessee than commercial leases.

Commercial leases

Whilst resembling retail leases, commercial leases contain a number of complexities that can be overlooked. These oft–overlooked intricacies can have far–reaching implications for the future success of your business or investment. If you are a landlord or a tenant, the involvement of an experienced commercial leasing lawyer can ensure the preservation of your interests in your commercial leasing agreements. 

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For landlords, the appropriate drafting of a lease agreement is essential for the protection of your investment. We ensure that the lease complies with all relevant laws and regulations to ensure its enforceability.  For tenants, a commercial leasing agreement may impact your business practice, the opportunities you pursue, and your options for expansion and relocation in future.  It is important to negotiate appropriate terms at the outset.

At Heathfield Grosvenor, we take the time to understand your business so that we may provide commercially intelligent advice that is tailored to your objectives. We ensure your understanding of your rights and obligations under it so as to avoid discrepancies that might arise in future due to misunderstanding or breach. This approach is consistent with our objective of offering effective and affordable legal solutions.

Our NSW based team of commercial leasing specialists can assist with a number of services, including:

  • Drafting and reviewing both commercial and retail lease agreements
  • Negotiating for the inclusion of specific clauses to best protect the interests of your business
  • Advising as to contractual terms
  • Assigning, varying or surrendering a lease
  • Acting for you in lease related dispute resolution, including litigation if required


CONTACT our NSW based commercial leasing specialists for a free initial discussion and fixed fee quote.

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Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017

The Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017 (Bill) was introduced by the House of Representatives on 1 March 2017.  A report of the Senate Education and Employment Legislation Committee is presently due by 9 May 2017.  It is anticipated that the Bill (in its current form or otherwise with amendments) will receive Royal Assent later this year. The Bill addresses the findings of various well publicised reports regarding the exploitation of workers (including migrant workers under temporary work visas).  Briefly, the measures to be introduced include: Higher penalties[1] for “serious contraventions[2]” of various workplace laws[3] (to act as a deterrent); Prohibitions against employers unreasonably requiring their employees to make payments (e.g. requiring their wages to be paid back in cash); Making franchisors and holding companies[4] potentially liable for underpayments by their franchisees or subsidiaries where they “knew or could reasonably be expected to have known” that the contraventions, or similar contraventions, would at least be likely to occur and failed to take reasonable steps[5] to prevent them; Higher penalties for record keeping failures; and Increased evidence gathering / investigatory powers of the Fair Work Ombudsman. The following activities are examples of some reasonable steps which could be taken by franchisors and holding companies (who have a significant degree of influence or control over their franchisees or subsidiaries) to try to avoid a contravention of the Bill (if and when enacted), depending on the size and influence of the relevant franchisor or holding company: ensuring that the franchise agreement or other business arrangements require franchisees to comply with workplace laws. Consider appropriate amendments to your franchise manual for example; providing franchisees or subsidiaries with a copy of the FWO’s free Fair Work Handbook and information notices / circulars; encouraging franchisees or subsidiaries to cooperate with any audits by the FWO; establishing a contact or phone number for employees to report any potential underpayment to the business; and auditing of companies in the network. ……………………… [1] Up to $108,000 for individuals and $540,000 for corporations [2] Where the conduct constituting the contravention was deliberate (i.e. expressly, tacitly, or impliedly authorised) and part of a systematic pattern of conduct bearing in mind the number of contraventions, the period of time during which the contraventions occurred, the effect of the contraventions, and any other relevant considerations [3] e.g. contravening the National Employment Standards, a modern award, enterprise agreement, workplace determination, national minimum wage order, equal remuneration order, certain payment related provisions and record provisions [4] Who have a significant degree of influence or control over the affairs of their franchisee or subsidiary [5] The court will take into account factors such as the size and resources of the franchisor or holding company, their ability to influence or control, any action taken to ensure that the franchisee or subsidiary knew about their obligations under the specific workplace laws, any arrangements in place for assessing compliance with the specific workplace laws, whether there are any complaints related arrangements in place, and the extent to which compliance with the specific workplace laws is encouraged or required by the franchisor or holding company

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Damages for Republication of Defamatory Statement by Third Party

Milne v Ell [2017] NSWSC 555 Home This case serves as a reminder of how liability for defamatory statements can extend to the republication of the statement by third parties, even where the republication has not been expressly authorised (but impliedly authorised).  In summary, an original publisher will be liable for the repetition of his or her original defamatory publication, including in altered form where the republication adheres to the sense and substance of the original publication and: he or she expressly or impliedly requested or authorised the repetition of the original publication; he or she intended that the repetition should take place; the repetition is the natural and probable consequence of the original publication; or there is a duty or obligation on the recipient of the original publication to repeat the original publication. The defendant, Mr Ell, originally brought an action for defamation against the plaintiff, Ms Milne and Mr Ell was awarded $15,000 in damages plus costs in 2014. Shortly after the 2014 judgement, Mr Ell was contacted by a journalist to whom Mr Ell said (referring to Ms Milne) “She’s not a fit and proper person to be a councillor…” (Statement).  This and other statements were subsequently published by the journalist in a printed article appearing in NSW and QLD as well as online. Ms Milne succeeded in obtaining an award of damages for defamation against Mr Ell arising from the Statement, and its subsequent republication by the journalist. In summary, it was held: Requirement of specificity of pleading imputations: The words “She’s not a fit and proper person to be a councillor…” referring to Ms Milne were sufficient by themselves to give rise to a defamatory imputation (i.e. they constituted an act or condition asserted of or attributed to a person). It was unnecessary for the pleading in the statement of claim to be more specific in the circumstances. Defence of honest opinion / fair comment: The imputation was one which related to a matter of public interest (because it related to whether or not a public officer was a fit and proper person to hold the position). On the question of whether or not the Statement was an expression of opinion rather than fact, the Court is required to examine the context, including whether the imputation is a “bare comment”, denuded of the facts upon which it is based or notorious facts presumed to be known by the reader, or without any of the other elements necessary to substantiate the defence.  In the circumstances a reasonable recipient would understand the Statement as a statement of fact and not the offering of an opinion based upon stated facts.  Accordingly, because the Statement was not an opinion and was not based upon stated facts, the defence of honest opinion / fair comment did not apply. Republication: The republication of the Statement made to the journalist was the natural and probable result of uttering the words in the Statement to the person (who was known to Mr Ell to be a journalist) and Mr Ell was therefore liable for its republication. In the circumstances of a press conference, or interview by the press, express authority or a request to publish is not necessary. Damages: In determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded. The purposes of an award of damages have been described as including: the consolation to the personal distress and hurt caused by the publication; reparation for the harm done to the personal and business reputation of the person defamed; and vindication of the reputation of the person defamed.  If there had been no republication in this case then the damages would have been nominal (if any).  In terms of the republication, the relevant publication issue had sales of approximately 36,000 newspapers and a readership of approximately 135,000.  The online publication also caused additional damage and, in some respects, notwithstanding its withdrawal from the website, it may still be causing damage.  The judge also accepted the “grapevine” effect of the publication of the article in print and the broadcasting of the website so that the damage was not confined to those that read the article or opened and/or downloaded the website article.  Taking into account the fact that a public apology had been published by the publishers of the article (thereby vindicating Ms Milne to an extent), damages of $45,000 were awarded to Ms Milne plus costs. C

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Protecting your brand & trade mark registration

Before choosing your brand: We have previously discussed important considerations when choosing the name of your business.  Before you decide upon your brand (which may consist of a letter, word, name, number, logo, aspect of packaging, shape, colour, sound or scent) and launch it (including before you register your domain name) a trade mark availability search should be conducted by a professional to determine whether there are any existing registered or unregistered rights which may exist in similar brands. Benefits of trade mark registration: The mere registration of your company name or business name with the Australian Securities and Investments Commission (ASIC) does not protect your brand identity, or provide registered trade mark rights in your brand.  Registration with ASIC is a legal obligation.  However, registration as a trade mark with the Australian Trade Marks Office can provide your business with: an exclusive statutory monopoly to use your registered brand identity in respect of the goods and/or services for which it is registered in Australia; an easy way to prevent cybersquatting (the registration of a domain name which incorporates your brand by others); much easier and cheaper enforcement of your rights in your brand if someone else infringes your rights, for example, by using a brand which is either substantially identical or deceptively similar to your brand in respect of the same or similar goods and/or services; and a registered “asset” which can be licensed, assigned, and monetised. Only registered trade marks can apply the ® symbol.  This puts others on notice that your brand is registered, and that you are likely to prosecute infringement. Costs: Your brand is your identity.  It is valuable property to which your goodwill and reputation are attached.  People who infringe your brand may derive benefits from your hard work or diminish your brand’s value through their actions (e.g. by selling inferior goods or services). Registration as a trade mark is typically a fairly inexpensive exercise if your brand does not currently infringe the rights of others (please refer to our earlier article here for further information).  Goods and services are divided into “classes”.  It is possible to obtain protection with IP Australia in one class for $330.  This is a drop in the ocean when compared to the potential costs to your business of non-registration.  Registration lasts for 10 years and is renewable. We provide trade mark registration advice and assistance at cost effective fixed fee rates.

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Unfair Contract Term Protections for Small Businesses

BACKGROUND Following public consultation processes, new laws[1] came into force on 12 November 2016 which extended existing consumer protection laws against unfair contract terms to “small business contracts” (e.g. business to business contracts). Under these laws, small businesses can also have an “unfair” term in a “standard form contract” declared as void in specified circumstances. In doing so they would not have to comply with the term. Findings identified in the Explanatory Memorandum to the Treasury Legislation Amendment (Small Business and Unfair Contract Terms) Bill 2015 suggest that, like consumers, small businesses are vulnerable to the inclusion of unfair terms in standard form contracts as they often lack: the resources to identify unfair terms, appreciate their significance and determine whether they can manage the associated risks; the resources to engage in negotiations over the terms of a contract; the bargaining power to successfully negotiate the terms of a contract; and/or the resources and bargaining power to resist the enforcement of unfair contract terms. The stated objective of this reform[2] is to promote fairness in contractual dealings with small businesses with regard to standard form contracts. This will reduce small business detriment and have positive impacts on the broader economy by increasing small business certainty and confidence, and providing for a more efficient allocation of risk. WHEN DOES PROTECTION TO CONSUMERS / SMALL BUSINESSES APPLY The unfair contract terms protection provisions are contained in ss23 – 28 of Schedule 2 to the Competition and Consumer Act 2010 (Cth) (Australian Consumer Law). Section 23 provides that a term of a “consumer contract” and “small business contract” is void if the term is “unfair” and the contract is a “standard form contract”. We do not examine consumer contracts which were protected prior to the amendments but examine the concepts of “small business contracts”, “standard form contracts” and when terms will be considered to be “unfair”. Small business contract In summary, in order for the contract to be a small business contract, each of the following must apply: The contract must be for the supply of goods or services or a sale or grant of an interest in land; At least one of the parties to the contract is a business that employs less than 20 people[3]; and The upfront price[4] payable under the contract is $300,000 or less, or the contract is for a duration of more than 12 months and the upfront price is $1,000,000 or less. Standard form contracts Standard form contracts are everywhere for example IT services contracts, advertising services contracts, mobile phone contracts, licences of office space, gym memberships etc. They are an efficient and effective way for businesses to contract. The Court will take into account any facts that it considers to be relevant however at the time of writing it “must” take into account the following in determining whether a contract is a standard form contract: whether one of the parties has all or most of the bargaining power relating to the transaction; whether the contract was prepared by one party before any discussion relating to the transaction occurred between the parties; whether another party was, in effect, required either to accept or reject the terms of the contract (other than certain excluded terms discussed below)in the form in which they were presented; whether another party was given an effective opportunity to negotiate the terms (other than certain excluded terms discussed below); and whether the terms of the contract (other than certain excluded terms discussed below) take into account the specific characteristics of another party or the particular transaction. Excluded terms: the protection does not extend to terms to the extent that they define the main subject matter of the contract, set the upfront price payable under the contract, or are terms required by law. Excluded contracts: the protection does not extend to contracts which are individually negotiated, or to certain types of contracts such as contracts of marine salvage or towage, a charterparty of a ship, and contracts for the carriage of goods by ship, constitutions of companies or managed investment schemes or other kinds of bodies. After 12 November 2016: The contract needs to have been entered into, renewed or rolled over after 12 November 2016. The law also applies to amendments to contracts after 12 November 2016 but not to the terms which have not been amended. Unfair terms There is a three limb test to unfairness. A term will be “unfair” if: it would cause a significant imbalance to the parties’ rights and obligations arising under the contract; it is not reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by them; and it would cause detriment to a party if it were to be applied or relied on. The Court “must” take into account the extent to which the term was transparent[5] and the contract as a whole. Make sure your print is not too fine! Some prescribed examples of the types of terms which may be unfair are as follows: a term that permits, or has the effect of permitting, one party (but not another party) to avoid or limit performance of the contract; a term that permits, or has the effect of permitting, one party (but not another party) to terminate the contract; a term that penalises, or has the effect of penalising, one party (but not another party) for a breach or termination of the contract; a term that permits, or has the effect of permitting, one party (but not another party) to vary the terms of the contract; a term that permits, or has the effect of permitting, one party (but not another party) to renew or not renew the contract; a term that permits, or has the effect of permitting, one party to vary the upfront price payable under the contract without the right of another party to terminate the contract; a term that permits, or has the effect of permitting, one party unilaterally to vary the characteristics of

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