78Unconscionable conduct of a tenant

78 Unconscionable conduct of a tenant S. 78(1) amended by No. 82/2005 s. 33(a)(b). (1) A tenant under a retail premises lease or a proposed retail premises lease must not, in connection with the lease or proposed 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 tenant and landlord; 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 tenant's legitimate interests; 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 the landlord's behalf by the tenant or a person acting on the tenant's behalf 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 landlord's interests; 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 fit out costs. (3) In considering whether a tenant has contravened subsection (1), the Tribunal— (a) must not 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 of this section but not to conduct engaged in before that commencement.