Commercial and retail leases in Australia Online [6th ed.]

"Authored by well-established leasing experts including Professor WD Duncan, author of the book Commercial Leases in Australia (6th ed), this loose leaf and online service offers a variety of resources to save solicitors and barristers time when negotiating or disputing commercial leasing matters at home and across the country. This is the only work to offer annotated retail leasing legislation for the three main States, including discussion of tribunal decisions and links directly to equivalent provisions in all other jurisdictions. A comparative table highlights key differences and similarities in retail leasing legislation between all States at a glance. Solicitors are then able to draw upon deeper treatment of commercial leasing in all States in principles-based commentary, and access precedents that are readily adaptable for other jurisdictions." -- publisher website

Franchisor failure : an assessment of the adequacy of regulatory response

Franchisor failure is one of the most problematic areas of the franchise relationship. It impacts negatively on landlords and other suppliers, but the contracting parties that are currently without legal rights to respond when a franchisor fails, and thus without consumer protection, are its franchisees. In this thesis I explore the current contractual, regulatory and commercial environment that franchisees inhabit, within the context of franchisor failure. I conclude that ex ante there are opportunities to level the playing field through consumer protection legislation. I also conclude that the task is not one solely for the consumer protection legislation; the problem should also be addressed ex post through the Corporations Act.

Assignment of lease between lessees as joint tenants-is lessor’s consent required?

The decision of Lockrey v Historic Houses Trust of New South Wales [2012] NSWSC 654 raises an interesting issue about the necessity of seeking the consent of the lessor where there is an assignment of a lease between joint tenants who already hold the lease when one joint tenant sells the business operated on the leased premises to the other joint tenant. A secondary issue raised by the proceedings concerns whether the lessor’s consent was unreasonably withheld under the processes under Retail Leases Act 1994 (NSW) (“the Act”) upon the grounds of lack of provision of information as to the remaining lessee’s financial standing.

Assignments of non-retail commercial leases: Some contentious issues

Assignment clauses in non-retail commercial leases are as infinitely varied as the circumstances in which disputes arise. Each clause must be individually interpreted as part of the lease in which it is embedded. Whilst the assignment of a lease is one of the most commonplace transactions between lessor and lessee, the case law reveals few unifying principles. This article seeks to cautiously identify a set of principles which should be in the mind of any lawyer when a dispute relating to an assignment arises. It concludes with a short checklist of matters which must be considered by such a person to encourage the application of principles in the first instance towards a resolution of the dispute.

Doing Time in the Retail Industry

This paper uses survey data to explore employee satisfaction with working time arrangements within a large supermarket chain in Queensland. The findings confirm those in the literature that employees have a diverse range of working time preferences, and that employees will be more satisfied if those preferences are met by their employer. In general, many full-time employees wanted shorter hours and a sizeable proportion of part-time employees wanted longer working hours. This paper is a preliminary attempt at teasing out the explanations behind working time preferences.

The relationship between Internet use and perceived performance in retail and professional service firms

lnformation technology (IT) and, in particular, the Internet is dramatically impacting on the services sector. This paper specifically investigates the relative impact of several forms of internet use on perceived performance for two groups of service organisations - retail service firms and professlonal health service firms. Using a mailed out self-administered questionnaire, 625 completed questionnaires were obtained and 43 per cent of respondents reported that they used the lternet. Thus the final usable sample in the study comprised 262 respondents. Results showed that the Internet does significantly influence perceived performance in both types of service firms. However,there are differences in the forms of lntemet use between the two service groups and their relative effect on performance. For retail firms, use of transactional function, such as ordering, selling and payment was found to be positively related to increases in perceived performance. In contrast, for professional health service firms, the ability to search for information on products and/or services was found to be positively associated with perceived performance. Finally, theoretical and managerial implications of the findings of this study are discussed.

Gendered perceptions of experiential value in using web-based retail channels

Purpose – This paper compares the experiential consumption values that motivate consumer choice to purchase online for both male and female purchasers and non-purchasers. Design/methodology/approach – Using the theory of consumption value the study examines gendered perceptions of the functional, social and conditional value of using a virtual consumption setting for purchasing. Data was collected through an online survey and analysed using multiple discriminant analysis to determine meaningful differences between male and female purchasers and non-purchasers. Findings – The findings show that male online purchasers are discriminated from female purchasers by social value and from male non-purchasers by conditional value. Female purchasers are discriminated from male purchasers by functional value and from female non-purchasers by social value. Female non-purchasers are discriminated from female purchasers by conditional value. Male non-purchasers are discriminated from male purchasers by functional and social value. Research limitations/implications – Limitations include using an Internet survey and an Australian sample which may impact the generalisability of the findings to a wider population of Internet users. Future research should involve replication of the study in a country more or less developed in terms of gender composition of internet users to extend the generalisability of the findings. Additionally, researchers should examine whether other dimensions of consumption value,such as social influence through on- and off-line communication networks, may influence consumer choice to purchase online. Practical implications – The study provides practical implications for marketers to leverage consumption values that influence male and female consumers’ choice to purchase online and then drive their behaviour online through integrated marketing campaigns that involve both on- and offline strategies. Originality/value – The research makes an original contribution to the consumer behaviour literature as to date, no research has been found that undertakes such a comprehensive gender-based comparison of the perceived value of using a virtual consumption setting for purchasing.

The implication of a term of good faith in commercial leases

Much has been written in the past decade on the subject of the implication of a term of good faith in contracts in Australia, particularly since the judgment Priestley JA in Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234. Except for an early article by Rachael Mulheron, 'Good Faith and Commercial Leases: New Opportunities for the Tenant' (1996) 4 APLJ 223, very little else has been written with respect to the possible application of the doctrine to the commercial leases.With the advent of two later New South Wales Supreme Court decisions Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349 and, more recently, Advance Fitness v Bondi Diggers [1999] NSWSC 264, the question of the application of the doctrine in the commercial leasing context has been examined. This article briefly considers the nature and substance of the doctrine against the background of the relationship of lessor and lessee and examines in some depth the Australian decisions on commercial leases where it has been sought, unsuccessfully, to apply the doctrine. The article concludes by suggesting that as a standard commercial lease usually covers the field of agreement between lessor and lessee and as a lessee has a high degree of statutory protection derived from equitable principles, there may be little room for the operation of the doctrine in this legal environment.

The implication of a term of good faith in commercial leases — A brief response

By way of response to Professor Duncan's article,1 this article examines the theoretical basis for the implication of contractual terms, particularly the implication of a term at law. In this regard the recent decision of Barrett J in Overlook v Foxtel [2002] NSWSC 17 is considered, to the extent that it provides guidance concerning the implication of an obligation of good faith in the context of a commercial contract. A number of observations are made which may be considered likely to have application to the relationship of commercial landlord and tenant. The conclusion reached is that although the commercial landlord and tenant contractual relationship is highly regulated, this may not deny a remedy to a tenant who is the victim of a landlord's 'bad faith'. Finally, the article concludes by considering the extent to which it may be possible to contractually exclude the implied obligation of good faith.

Down the aisle : the effects of technological change on retail workers skills

Reconfiguration of corporate structures and the retailer-supplier interface in the retail industry have restructured product markets and supply chains, as well as supermarket employment, over the past decade or so (Baret, Lehndorff & Sparks 2000; du Gay 1996). Various studies have examined the consequent changes in labour usage practices within supermarkets or superstores (Baret et al. 2000; Marchington 1995; Penn & Wirth 1993; Sparks 1992; Dawson, Findlay & Sparks 1987, 1986). Commonly, this literature explores the interplay between shifts in the structure of the labour market, broader societal trends and retailers’ employment strategies. One study found that domestic and gender dimensions, accompanied by industrial relations regimes, exert considerable influence on patterns of labour usage (Baret et al. 2000). However, while the types of labour usage and the drivers of changes to labour usage patterns have attracted significant academic attention, research has largely overlooked the ways in which the nature of supermarket work has evolved as a result of changing technology, which effectively bolsters managerial prerogative, and which has affected the skill levels of workers in the industry (Marchington 1995).