QUT ePrints

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.

View at publisher

Abstract

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.

Impact and interest:

Citation countsare sourced monthly from Scopus and Web of Science® citation databases.

These databases contain citations from different subsets of available publications and different time periods and thus the citation count from each is usually different. Some works are not in either database and no count is displayed. Scopus includes citations from articles published in 1996 onwards, and Web of Science® generally from 1980 onwards.

Citations counts from the Google Scholar™ indexing service can be viewed at the linked Google Scholar™ search.

Full-text downloads:

321 since deposited on 16 Mar 2009
165 in the past twelve months

Full-text downloadsdisplays the total number of times this work’s files (e.g., a PDF) have been downloaded from QUT ePrints as well as the number of downloads in the previous 365 days. The count includes downloads for all files if a work has more than one.

ID Code: 18791
Item Type: Journal Article
Keywords: Commercial Leases
ISSN: 1039-5598
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

Export: EndNote | Dublin Core | BibTeX

Repository Staff Only: item control page