Unconscionability in commercial leasing - distinguishing a hard bargain from unfair tactics?
Christensen, Sharon A. & Duncan, William D. (2005) Unconscionability in commercial leasing - distinguishing a hard bargain from unfair tactics? Competition and Consumer Law Journal, 13(2), pp. 158-175.
Section 51AC of the TPA commenced on 1 July 1998 and was enacted primarily to answer the serious complaints made to the Reid Committee about the allegedly unconscionable conduct of lessors in their dealings with small traders in retail shopping complexes. Since then New South Wales, Victoria and Queensland have enacted derivative provisions in their retail shop leasing legislation allowing retail leasing tribunals to consider instances of unconscionable conduct by lessors. This is the first article that critically analyses how s 51AC and its cognate provisions in the States have been applied by the courts and retail leasing tribunals against the background of existing literature and the High Court decision of ACCC v Berbatis Holdings Pty Ltd, which dealt specifically with the application of s 51AA of the TPA to retail leasing situations. The article examines the types of lessor conduct retail lessees have claimed is unconscionable and concludes with the finding that the situations in which a lessor’s conduct is likely to be unconscionable under s 51AC have generally been limited to circumstances where a lessor's manipulation of their position or legal rights to deliberately force the termination of the lease or cessation of the lessee's business is clearly evident.
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|Item Type:||Journal Article|
|Subjects:||Australian and New Zealand Standard Research Classification > LAW AND LEGAL STUDIES (180000) > LAW (180100)|
Australian and New Zealand Standard Research Classification > LAW AND LEGAL STUDIES (180000) > LAW (180100) > Commercial and Contract Law (180105)
|Divisions:||Current > QUT Faculties and Divisions > Faculty of Law|
Current > Schools > School of Law
|Copyright Owner:||Copyright 2005 LexisNexis Butterworths|
|Deposited On:||16 Mar 2009 12:08|
|Last Modified:||04 Jun 2012 16:26|
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