Commercial Tenancy (Retail Shops) Agreements Act 1985

A landlord under a retail shop lease shall not, in connection with the lease, engage in conduct that is, in all the circumstances, unconscionable.

Without in any way limiting the matters to which the Tribunal may have regard for the purpose of determining whether a landlord has contravened subsection (1), the Tribunal may have regard to —

the relative strengths of the bargaining positions of the landlord and tenant; and

whether, as a result of conduct engaged in by the landlord, the tenant was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the landlord; and

whether the tenant was able to understand any documents relating to the lease; and

whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the tenant (or a person acting on behalf of the tenant) by the landlord or a person acting on behalf of the landlord in relation to the lease; and

the amount for which, and the circumstances under which, the tenant could have acquired an identical or equivalent lease from a person other than the landlord; and

the extent to which the landlord’s conduct towards the tenant was consistent with the landlord’s conduct in similar transactions between the landlord and other similar tenants; and

the requirements of any applicable industry code; and

the requirements of any other industry code, if the tenant acted on the reasonable belief that the landlord would comply with that code; and

the extent to which the landlord unreasonably failed to disclose to the tenant —

any intended conduct of the landlord that might affect the interests of the tenant; and

any risks to the tenant arising from the landlord’s intended conduct that are risks that the landlord should have foreseen would not be apparent to the tenant;

the extent to which the landlord was willing to negotiate the terms and conditions of any lease with the tenant; and

the extent to which the landlord acted in good faith; and

the extent to which the landlord was not reasonably willing to negotiate the rent under the lease; and

the extent to which the landlord unreasonably used information about the turnover of the tenant’s or a previous tenant’s business to negotiate the rent; and

the extent to which the landlord required the tenant to incur unreasonable refurbishment or fit out costs.

In considering whether a landlord has contravened subsection (1), the Tribunal —

is not to have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention; and

may have regard to circumstances existing before the commencement but not to conduct engaged in before the commencement.