ACT
See section 30. The landlord must give the tenant a DS:
- at least 14 days before the lease is entered into; or
- if the lease contains an option to extend and the tenant, not more than 3 months before the tenant may exercise the option, requests the landlord to give a DS, within 14 days of that request.
The time limits do not apply (or are varied) if the tenant provides the landlord with a certificate signed by a lawyer stating that it is aware of the time limits and has chosen to waive or vary them as set out in the certificate.
NSW
See section 11. The landlord must provide the tenant with a DS at least 7 days before a lease is entered into. The DS must:
- be in writing and (substantially) in the prescribed form;
- contain the tenant's DS which the tenant must complete under section 11A of the Act; and
- contain lease information and be accompanied by relevant material that is required to complete the landlord's DS.
If the tenant is not given a DS as required by the Act, or if the DS provided is incomplete or contains materially false or misleading information, the tenant is entitled to terminate the lease by notice in writing within 6 months of entering into the lease. In the 2021 NSWSC decision of Ausko Cooperation v Junapa Pty Ltd, the lack of a disclosure statement was a material factor indicating that the parties (notwithstanding an agreement to lease in principle) had not entered into a lease for the purposes of the Act.
If the tenant terminates the lease, then the tenant is entitled to recover compensation.
However, the tenant is not entitled to terminate where the landlord has acted honestly and reasonably and ought reasonably to be excused and the tenant is in substantially as good a position as he would have been if the failure had not occurred. There is a penalty imposed on the landlord of up to 50 penalty units if the tenant is not given a DS as required by the Act.
A DS may be amended in writing by agreement between the tenant and landlord before or after a lease is entered into and any such amendment has effect from the date specified in the agreement
NT
See section 19. The landlord must provide the tenant with a DS at least 7 days before the lease is entered into, unless a legal practitioner who is not acting for the landlord certifies in writing that they have explained to the prospective tenant the effect of section 19, and that the giving of the certificate will result in a waiver of the time limit. The details required to be included in the DS are prescribed in the Regulations.
Maximum penalty: 100 penalty units.
If a lease is entered into by way of a renewal, a written statement that updates the provisions of an earlier DS given to the tenant is, in conjunction with the earlier DS, is taken to be the landlord's DS given at the time the landlord's update is given.
See section 20. If the landlord fails to provide the DS or the DS is incomplete or contains information which is materially false or misleading (at the time the DS is given), the tenant may terminate the lease by notice in writing within 6 months after the lease was entered into.
However, the tenant cannot terminate the lease if the landlord acted honestly and reasonably and ought reasonably to be excused from having given an incomplete DS or information that is materially false or misleading, and the tenant is in substantially as good as position as the tenant would have been if the DS had been complete or the information had not been materially false or misleading.
QLD
See section 21B. The landlord is to provide the tenant with a draft lease and DS containing particulars prescribed by regulation at least 7 days before the tenant enters into the lease.
The landlord must also provide a current disclosure statement within 7 days after the tenant exercises any option to renew. The tenant may withdraw the option renewal notice within 14 days after receiving the current disclosure statement. See section 21E.
If the landlord fails to comply, or if the landlord's DS is incomplete in a material particular or contains information which is false or misleading in a material particular, the tenant is entitled to terminate within 6 months of the date the tenant enters into the lease.
Following the 2016 amendments, there is no longer a defence if the landlord acted honestly and reasonably. Any defective statement will allow the tenant to terminate.
The landlord is also liable to pay reasonable compensation to the tenant (decided by way of dispute resolution process) whether or not the lease is terminated.
The prescribed particulars for the DS in Qld are found in section 2 of the Regulation.
The landlord is taken to have given the DS to the tenant within the disclosure period if the tenant provides a waiver notice and legal advice report. The landlord must still give the DS however it only needs to be given before the tenant enters into the lease not 7 days before.
A major lessee does not need to provide a legal advice report to accompany its waiver notice. See section 21B.
Under permitted franchising arrangements, the franchisor may request a DS from the landlord. The landlord must provide the DS within 28 days. The Landlord may recover its reasonable expenses of providing the DS. See section 21D.
SA
See section 12. The tenant must be given a signed DS in duplicate in the form required by the Act and the Regulations before a retail shop lease is entered into.
A DS is not required to be given in respect of a renewal of a retail shop lease.
If a DS is not provided, or at the time it is given is materially false or misleading, the Magistrates Court may make orders to avoid or vary the lease, or require the landlord to refund money or pay compensation.
TAS
See section 6. The landlord must provide the tenant with a DS at least 7 days before the earliest event of the tenant signing a lease, or signing an agreement to lease or entering into occupation of the premises, or paying rent.
The DS is to be in the form of Appendix B to the Code and is to be signed both on behalf of the landlord and the tenant.
See section 7. The Tenant may terminate the lease within 3 months of its commencement if the landlord fails to notify the tenant in writing of any material changes to the information contained in the DS if the change occurs after the DS is signed but before the earlier of the date on which the tenant signs the lease or enters into occupation of the premises. However, the landlord may contest the tenant's termination on the grounds that the landlord has acted honestly and reasonably and ought fairly to be excused for the contravention and that the tenant is substantially in as good a position as he would have been if there had been no contravention.
VIC
See section 17. The landlord, a person acting on behalf of the landlord or a prospective landlord must provide the DS at least 14 days before the parties enter into the lease. If the landlord gives a disclosure statement and/or proposed lease to a tenant less than 14 days before the lease is entered into, the term of the lease will not commence until 14 days after those documents are provided.
The DS is to be in the form prescribed by the Regulations (it is in the prescribed form if it contains the information and material specified in the relevant schedule but the layout of the DS need not be the same as the prescribed DS). The Regulations prescribe 4 forms of DS to be used in the following circumstances:
- Schedule 1 – retail premises not located in retail shopping centres
- Schedule 2 – retail premises located in retail shopping centres
- Schedule 3 – on renewal of a lease
- Schedule 4 – assigned lease with an ongoing business.
A sub-landlord who has been given a DS concerning a head lease is only required to give a sub-tenant a copy of that DS and details of changes from that DS.
If the tenant is not given the DS before entering into the lease, the tenant may give the landlord, no earlier than 7 days and no later than 90 days after entering into the lease, a notice that he has not received the DS. If such notice is given, the tenant may withhold payment of rent until the day on which the landlord gives the tenant the DS and the tenant may give the landlord a written notice of termination at any time within 7 days of the landlord giving the DS to the tenant.
If the premises are not available for handover to the tenant or prospective tenant on the date specified in the DS, the tenant or prospective tenant is not liable to pay rent attributable to a period before the date on which the premises are available for handover.
If the DS is misleading, false or materially incomplete or the tenant is not given a copy of the proposed lease at least 7 days before entering into the lease, the tenant may terminate the lease at any time within 28 days of the tenant being given the DS, the tenant being given a copy of the lease or the lease being entered into, whichever happens last.
The tenant may not terminate the lease if the landlord has acted honestly and reasonably and ought fairly to be excused for the contravention and the tenant is substantially in as good a position as the tenant would have been in if there had been no contravention.
If a tenant has been given a DS before entering into an agreement for a retail premises lease, the landlord is not required to give a further DS before subsequently entering into a retail premises lease if that lease is in accordance with the earlier agreement for lease.
See section 26. A landlord must give a DS at least 21 days before the end of the current term of a lease where the tenant has exercised or is entitled to exercise an option to renew, or no later than 14 days after the parties have entered into an agreement to renew a lease. Any disclosure statement issued on renewal of a lease must set out how the statement differs from any previous disclosure statement and include information that is current from a specified date that is within 3 months before the statement is given.
WA
See section 6. The landlord must provide the tenant with a duly completed DS, and that DS must be signed by both the landlord and tenant, at least 7 days before the "lease" is entered into.
The details required to be included in the DS are set out in the prescribed form and must contain a statement notifying the tenant to seek independent legal advice. The DS must attach a copy of the "lease" (as broadly defined). The DS includes a place for the tenant to make disclosure to the landlord of its requirements and representations made to the tenant.
If the tenant is not given a DS as required by the Act, or if the DS provided is incomplete or contains materially false or misleading information, in addition to any other rights the tenant may have (including compensation, as referred to above) the tenant is entitled to terminate the lease by notice in writing within 6 months of "entering into the lease". However, the tenant is not entitled to terminate where the landlord has acted honestly and reasonably and ought reasonably to be excused and the tenant is in substantially as good a position as he would have been if the failure had not occurred.
A DS does not need to be given by the landlord:
- on a renewal of a retail shop lease under an option to renew contained in the lease; or
- on an assignment of the retail shop lease.
Definitions and currency