South Australian Consolidated Acts

FAIR TRADING ACT 1987 - SECT 57

57—Unconscionable conduct

        (1)         A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services to another person, engage in conduct that is, in all the circumstances, unconscionable.

        (2)         Without in any way limiting the matters to which a court may have regard for the purposes of determining whether a person has contravened subsection (1) in connection with the supply or possible supply of goods or services to another person (in this subsection referred to as the "consumer"), a court may have regard to—

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

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

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

            (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 person or a person acting on behalf of the person in relation to the supply or possible supply of the goods and 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 person.

        (3)         A person will 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 another person by reason only that the person—

            (a)         institutes legal proceedings in relation to that supply or possible supply; or

            (b)         refers a dispute or claim in relation to that supply or possible supply to arbitration.

        (4)         For the purposes of determining whether a person has contravened subsection (1) in connection with the supply or possible supply of goods or services to another person—

            (a)         a court is not to have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention; and

            (b)         a 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.