New South Wales Consolidated Acts

CONSUMER CLAIMS ACT 1998 - SECT 13

13 Matters to be taken into account by Tribunal when making orders under this Part

(cf Act No 206 of 1987, sec 31)

(1) When making an order or orders under this Part, the Tribunal must make such orders as, in its opinion, will be fair and equitable to all the parties to the claim.

(2) Without limiting subsection (1), when the Tribunal is considering whether or not to make an order or orders under this Part, the following factors are relevant, so far as they are material to the particular circumstances of the case:

(a) whether or not there was any material inequality in bargaining power between the parties to the claim,

(b) whether or not:

(i) any party to the claim was not reasonably able to protect the party’s interest, or

(ii) any person who represented any of the parties to the claim was not reasonably able to protect the interests of any party represented by that person,

because of the age or physical or mental capacity of that party or person,

(c) the relative economic circumstances, educational background and literacy of:

(i) the parties to the claim, and

(ii) any person who represented any of those parties,

(d) whether or not and when independent legal or other expert advice was obtained by the claimant,

(e) whether any undue influence, unfair pressure or unfair tactics were exerted on or used against the claimant:

(i) by any other party to the claim, or

(ii) by any person acting or appearing or purporting to act for or on behalf of any other party to the claim, or

(iii) by any person to the knowledge of any other party to the claim or of any person acting or appearing or purporting to act for or on behalf of any other party to the claim,

(f) the conduct of the parties to the claim in relation to similar transactions to which any of them has been a party,

(g) where the subject of the claim is a contract for the supply of goods or services or a contract collateral to such a contract:

(i) whether or not before or at the time when the contract was made its provisions were the subject of negotiation, and

(ii) whether or not it was reasonably practicable for the claimant to negotiate for the alteration of or to reject any of the provisions of the contract, and

(iii) whether or not any provisions of the contract impose conditions which are unreasonably difficult to comply with or not reasonably necessary for the protection of the legitimate interests of any party to the claim, and

(iv) if the contract is wholly or partly in writing, the physical form of the contract and the intelligibility of the language in which it is expressed, and

(v) the extent (if any) to which the provisions of the contract and their legal effect were accurately explained by any person to the claimant and whether or not the claimant understood the provisions and their effect, and

(vi) the commercial or other setting, purpose and effect of the contract.

(3) Without limiting subsection (1), when the Tribunal is considering whether or not to make an order or orders under section 8, it is appropriate for the Tribunal to take into account, so far as material to the particular circumstances of the case:

(a) any code of practice for fair dealing prescribed under Part 7 of the Fair Trading Act 1987 , and

(b) where the Director-General has brought to the attention of the Tribunal any other code of practice, whether or not prescribed by or under any other Act-that code of practice.