Queensland Consolidated Acts

RETAIL SHOP LEASES ACT 1994 - SECT 46B

46B Matters QCAT may consider in deciding if a party’s conduct is unconscionable

(1) In deciding whether a party to a retail tenancy dispute has engaged in unconscionable conduct in connection with the retail shop lease, QCAT may have regard to the following matters—

(a) the relative strengths of the bargaining positions of each of the parties;

(b) whether, as a result of conduct engaged in by the party, the other party was required to comply with conditions that were not reasonably necessary for the protection of the other party’s legitimate interests;

(c) whether the other party was able to understand any documents relating to the lease;

(d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the other party or a person acting for the other party by the party or a person acting for the party in relation to the lease;

(e) the amount for which, and the circumstances under which, the other party could have acquired an identical or equivalent lease from a person other than the party;

(f) the extent to which the party’s conduct towards the other party was consistent with the party’s conduct in similar transactions between the party and parties like the other party;

(g) the requirements of any applicable industry code;

(h) the requirements of any other industry code, if the other party acted on the reasonable belief that the party would comply with the code;

(i) the extent to which the party unreasonably failed to disclose to the other party—

(i) any intended conduct of the party that might affect the other party’s interests; and

(ii) any risks to the other party arising from the party’s intended conduct (being risks that the party should have foreseen would not be apparent to the other party);

(j) the extent to which the party was willing to negotiate the terms and conditions of any lease with the other party;

(k) the extent to which the party and the other party acted in good faith.

(2) QCAT may also have regard to circumstances existing before the commencement of section 46A .

(3) Subsections (1) and (2) do not limit the matters to which QCAT may have regard in making its decision.

(4) However, QCAT must not have regard to the following—

(a) any circumstances that were not reasonably foreseeable at the time of the alleged contravention of section 46A (1) or (2) ;

(b) conduct engaged in before the commencement of section 46A .

(5) In this section—

"applicable industry code" has the meaning given under the Competition and Consumer Act 2010 (Cwlth) , section 51ACA .

"industry code" has the meaning given under the Competition and Consumer Act 2010 (Cwlth) , section 51ACA .