22Prohibited conduct in dealings

22 Prohibited conduct in dealings (1) A party to a lease, or a party to negotiations for a proposed lease, must not, in dealings with another party to the lease or negotiations, engage in conduct that is unconscionable or harsh and oppressive. (2) Without limiting the matters the Magistrates Court may consider when making an order in relation to a dispute arising from an alleged contravention of subsection (1) in relation to unconscionable conduct, the court may consider any of the following matters: (a) the relative strengths of the bargaining positions of the lessor and tenant; (b) whether, because of conduct engaged in by a party to the lease or negotiations, the other party was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the party who engaged in the conduct; (c) whether the party to the lease or negotiations who did not prepare the lease or another document relating to the lease could understand the lease or other document; (d) whether undue influence or pressure was exerted on, or unfair tactics were used against, a party to the lease or negotiations (or an agent) by the other party to the lease or negotiations (or an agent) in relation to the lease or negotiations; (e) the circumstances under which the tenant could have acquired a lease on similar terms over similar premises from someone other than the lessor; (f) the extent to which the lessor’s conduct towards the tenant was consistent with the lessor’s conduct in similar lease transactions between the lessor and similar tenants; (g) the requirements of this Act; (h) the extent to which a party to the lease or negotiations (the failing party) unreasonably failed to disclose to the other party (the uninformed party)— (i) any intended conduct of the failing party that might affect the interests of the uninformed party; or (ii) any risk to the uninformed party arising from the failing party’s intended conduct that the failing party should have foreseen would not be apparent to the uninformed party; (i) the extent to which the lessor and the tenant acted honestly. (3) Without limiting subsection (1), a lessor is taken to have engaged in harsh and oppressive conduct if— (a) the lessor discriminates against a tenant because the tenant is a member of, or intends to become a member of, an association to represent or protect the interests of tenants, or intends to form such an association; or (b) the lessor’s conduct has the effect of preventing a tenant from forming or joining, or compelling a tenant to form or join, an association to represent or protect the interests of tenants. (4) Without limiting subsection (1), someone is not taken to have engaged in unconscionable or harsh and oppressive conduct only because the person applied to the Magistrates Court under this Act. (5) When applying subsection (2), the Magistrates Court must not have regard to circumstances that were not reasonably foreseeable at the time of the alleged contravention. Conduct of parties Part 5