TRADE PRACTICES REVISION ACT 1986 No. 17 of 1986 - SECT 22

TRADE PRACTICES REVISION ACT 1986 No. 17 of 1986 - SECT 22

22. After section 52 of the Principal Act the following section is inserted:
Unconscionable conduct   "52A. (1) A corporation shall not, in trade or
commerce, in connection with the supply or possible supply of goods or
services to a person, engage in conduct that is, in all the circumstances,
unconscionable.

"(2) Without in any way limiting the matters to which the Court may have
regard for the purpose of determining whether a corporation has contravened
sub-section (1) in connection with the supply or possible supply of goods or
services to a person (in this sub-section referred to as the 'consumer'), the
Court may have regard to-

   (a)  the relative strengths of the bargaining positions of the corporation
        and the consumer;

   (b)  whether, as a result of conduct engaged in by the corporation, the
        consumer was required to comply with conditions that were not
        reasonably necessary for the protection of the legitimate interests of
        the corporation;

   (c)  whether the consumer was able to understand any documents relating to
        the supply or possible supply of the goods or services;

   (d)  whether any undue influence or pressure was exerted on, or any unfair
        tactics were used against, the consumer or a person acting on behalf
        of the consumer by the corporation or a person acting on behalf of the
        corporation in relation to the supply or possible supply of the goods
        or services; and

   (e)  the amount for which, and the circumstances under which, the consumer
        could have acquired identical or equivalent goods or services from a
        person other than the corporation.

"(3) A corporation shall not be taken for the purposes of this section to
engage in unconscionable conduct in connection with the supply or possible
supply of goods or services to a person by reason only that the corporation
institutes legal proceedings in relation to that supply or possible supply or
refers a dispute or claim in relation to that supply or possible supply to
arbitration.

"(4) For the purpose of determining whether a corporation has contravened
sub-section (1) in connection with the supply or possible supply of goods or
services to a person-

   (a)  the Court shall not have regard to any circumstances that were not
        reasonably forseeable at the time of the alleged contravention; and

   (b)  the Court may have regard to conduct engaged in, or circumstances
        existing, before the commencement of this section.

"(5) A reference in this section to goods or services is a reference to goods
or services of a kind ordinarily acquired for personal, domestic or household
use or consumption.

"(6) A reference in this section to the supply or possible supply of goods
does not include a reference to the supply or possible supply of goods for the
purpose of re-supply or for the purpose of using them up or transforming them
in trade or commerce.".