Commercial Tenancy (Retail Shops) Agreements Act 1985

A tenant 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 tenant 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 tenant, the landlord was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the tenant; and

whether the landlord 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 landlord (or a person acting on behalf of the landlord) by the tenant or a person acting on behalf of the tenant in relation to the lease; and

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

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

the requirements of any applicable industry code; and

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

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

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

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

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

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

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

the extent to which the tenant 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 tenant was willing to incur reasonable refurbishment or fit out costs.

In considering whether a tenant 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.