(1) A tenant under a
retail shop lease shall not, in connection with the lease, engage in conduct
that is, in all the circumstances, unconscionable.
(2) 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 —
(a) the
relative strengths of the bargaining positions of the landlord and tenant; and
(b)
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
(c)
whether the landlord was able to understand any documents relating to the
lease; and
(d)
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
(e) 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
(f) 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
(g) the
requirements of any applicable industry code; and
(h) the
requirements of any other industry code, if the landlord acted on the
reasonable belief that the tenant would comply with that code; and
(i)
the extent to which the tenant unreasonably failed to
disclose to the landlord —
(i)
any intended conduct of the tenant that might affect the
interests of the landlord; and
(ii)
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;
and
(j) the
extent to which the tenant was willing to negotiate the terms and conditions
of any lease with the landlord; and
(k) the
extent to which the tenant acted in good faith; and
(l) the
extent to which the tenant was not reasonably willing to negotiate the rent
under the lease; and
(m) 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
(n) the
extent to which the tenant was willing to incur reasonable refurbishment or
fit out costs.
(3) In considering
whether a tenant has contravened subsection (1), the Tribunal —
(a) is
not to have regard to any circumstances that were not reasonably foreseeable
at the time of the alleged contravention; and
(b) may
have regard to circumstances existing before the commencement but not to
conduct engaged in before the commencement.
[Section 15D inserted: No. 47 of 2006 s. 23.]