The National Energy Retail Law (NERL) regulates and controls the sale of electricity and gas. Under this law, landlords that sell electricity and gas to tenants are required to hold an authorisation or exemption under the NERL. In a variety of circumstances, this authorisation/exemption is not automatic with it being necessary that the landlord apply for it. In particular, in dealings involving commercial properties, the exemption only automatically applies if there are less than 10 tenants purchasing electricity from the landlord. The recent case of Pipe Networks Pty Ltd v 148 Brunswick Street Pty Ltd [2019] FCA 598 the Federal Court held, that a standard lease clause that permitted the landlord to charge the tenant for the supply of electricity, was not enforceable due to the landlord failing to hold an exemption require by the NERL. Despite the Court finding that the clause was illegal due to the absence of the exemption, the landlord ultimately applied for and received the exemption, and was permitted to charge electricity from the date of the exemption. This case is a reminder to landlords who sell electricity or gas to their tenants, to check that they are registered for an exemption, or fall within the exemption category under the NERL.

 

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