ACT
See section 22. A party to a lease or negotiations for a proposed lease must not deal with other parties to the lease or negotiations in a manner which is unconscionable, or harsh and oppressive.
In determining a dispute, the Magistrates Court may consider any of the following:
- the relative strengths of the bargaining positions of the parties;
- whether the conduct required the other party to comply with conditions which were not reasonably necessary for the protection of the legitimate interests of the party engaging in the conduct;
- whether the party who did not prepare the lease could understand its conditions;
- whether undue influence, pressure or unfair tactics were used;
- whether the tenant could have acquired a lease on similar terms for similar premises from another person;
- the extent to which the landlord's conduct was consistent with its conduct in similar lease transactions towards similar tenants;
- the requirements of the Act;
- whether there was proper disclosure of intended conduct or risk; and
- the extent to which the parties acted honestly.
NSW
Part 7A and sections 62A-62B provide that the landlord or tenant must not engage in conduct that is, in all the circumstances, unconscionable. A party that suffers loss or damage by reason of unconscionable conduct may recover the amount of loss or damage by lodging a claim with the NSW SAT.
Sections 62D and 62E provide that a party to a retail shop lease must not engage in conduct that is misleading or deceptive to another party to the lease or that is likely to mislead or deceive. A party who suffers due to the latter conduct may recover the amount of loss or damage by lodging a claim under section 71.
NT
See Part 10, Unconscionable conduct provisions - similar to sections 62A-62B in NSW but the claim is lodged with a court.
No provisions for misleading and deceptive conduct.
QLD
See section 46A. A landlord or a tenant must not engage in conduct which is, in all the circumstances, unconscionable. Sections 46A-46B only apply to leases entered into on or after 24 June 2001.
QCAT may determine if a party has acted unconscionably and take into account matters similar to those provided for in the Leases (Commercial and Retail) Act 2001 (ACT).
SA
No specific section in the Act.
However note section 20A (Objects) which states that the minimum 5 year term requirement is to achieve "fair dealing" between the landlord and the tenant in relation to renewal/extension of lease. See also section 20M which prohibits any threats to dissuade a tenant from exercising a right or an option to renew or from exercising its rights under Part 4A of the Act.
TAS
See section 3. A person must not engage in conduct that is harsh, unjust or unconscionable. Unconscionable conduct may include the threat by a property owner to subsidise a competitor to the tenant in nearby premises, or not to renew a lease unless the tenant agrees to a proposal of the property owner or is prepared to pay a rental in excess of the CMR.
See section 23(1)(e). The landlord must compensate the tenant if he acts in a manner which, in all the circumstances, is unconscionable.
See section 7(3). If the landlord provides a DS containing misleading information, the tenant may, in addition to other rights, terminate the lease within 3 months after its commencement.
VIC
See Part 9. Similar to NSW except there is no provision for misleading and deceptive conduct and claims must be lodged with the Victorian Civil and Administrative Tribunal.
WA
See Part IIA of the Act.
Unconscionable conduct
A landlord or a tenant under a retail shop lease must not engage in conduct that is, in all the circumstances, unconscionable.
A party who suffers loss or damage by reason of unconscionable conduct that contravenes the Act may recover the amount of loss or damage by lodging a claim with WA SAT.
Part IIA also applies to retail shop leases entered into prior to Part IIA coming into operation.
In determining whether a party has acted unconscionably, the WA SAT may take into account matters similar to those provided for in the Leases (Commercial and Retail) Act 2001 (ACT) and also:
- the requirements of any applicable industry code;
- the extent to which a landlord or tenant was willing to negotiate the terms and conditions of any lease or the rent with the other party;
- the extent to which a landlord or tenant unreasonably used information about the turnover of the tenant or a previous tenant's business to negotiate the rent; and
- the extent to which:
- in the case of the landlord, it required the tenant to incur reasonable refurbishment or fit-out costs; or
- in the case of a tenant, it was willing to incur reasonable refurbishment or fit-out costs.
Misleading and deceptive conduct
See sections 16A-16D (Division 2). These provisions were introduced by the 2013 amending Act.
These are similar to NSW sections 62D and 62E except that the claim is brought before the WA SAT.
Misleading and deceptive conduct is defined as conduct that is misleading or deceptive to another party to the lease or that is likely to mislead or deceive another party to the lease.
Division 2 will not apply to conduct that occurred before the relevant provisions in the amending Act were proclaimed.
A misleading or deceptive conduct claim must be lodged within 6 years after the alleged conduct occurred.
The WA SAT has extensive powers in relation to the orders it may make.