Tasmanian Consolidated Acts Tasmanian Consolidated Acts
(1) Without limiting the generality of section 34, where, in a proceeding instituted under, or for an offence against, this Act, the court having jurisdiction in the relevant proceeding finds that a person who is a party to the proceeding has suffered, or is likely to suffer, loss or damage by conduct of another person who was engaged in (whether before or after the commencement of this subsection) in contravention of a provision of this Act, the court may, whether or not it grants an injunction under section 34 or makes an order under section 36 or 37, make such order or orders as it thinks appropriate against the person who engaged in the conduct or a person who was involved in the contravention (including all or any of the orders mentioned in subsection (5)) if the court considers that the order or orders concerned will compensate the first-mentioned person in whole or in part for the loss or damage or will prevent or reduce the loss or damage.
(1A) A reference in this section to loss or damage does not, if the loss or damage arises from a contravention of Part 2 (section 15 excepted), include a reference to –
(a) the death of a person; or
(b) personal injury to a person (including any pre-natal injury, any impairment of the person's physical or mental condition and any disease).
(2) Without limiting the generality of section 34, the court having jurisdiction in the relevant proceeding may, on the application of a person who has suffered, or is likely to suffer, loss or damage by conduct of another person who was engaged in (whether before or after the commencement of this Act) in contravention of a provision of this Act or on the application of the Director in accordance with subsection (4) on behalf of such a person or 2 or more such persons, make such order or orders as the court thinks appropriate against the person who engaged in the conduct or a person who was involved in the contravention (including all or any of the orders mentioned in subsection (5)) if the court considers that the order or orders concerned will compensate the person who made the application, or the person or any of the persons on whose behalf the application was made, in whole or in part for the loss or damage, or will prevent or reduce the loss or damage suffered, or likely to be suffered, by such a person.
(3) An application may be made under subsection (2) in relation to a contravention of this Act even if a proceeding has not been instituted under another provision of this Part in relation to the contravention.
(4) Where, in a proceeding instituted for an offence against this Act, a person is found to have engaged in conduct in contravention of a provision of this Act, the Director may make an application under subsection (2) on behalf of one or more persons identified in the application who have suffered, or are likely to suffer, loss or damage by the conduct, but the Director shall not make such an application except with the consent in writing given before the application is made by the person, or by each of the persons, on whose behalf the application is made.
(5) The orders referred to in subsections (1) and (2) are as follows:
(a) an order declaring the whole or any part of a contract made between the person who suffered, or is likely to suffer, the loss or damage and the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct, or of a collateral arrangement relating to such a contract, to be void and, if the court having jurisdiction in the relevant proceeding thinks fit, to have been void from its beginning or at all times on and after such date before the date on which the order is made as is specified in the order;
(b) an order varying such a contract or arrangement in such manner as is specified in the order and, if that court thinks fit, declaring the contract or arrangement to have had effect as so varied on and after such date before the date on which the order is made as is so specified;
(c) an order refusing to enforce any or all of the provisions of such a contract;
(d) an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct to refund money or return property to the person who suffered the loss or damage;
(e) an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct to pay to the person who suffered the loss or damage the amount of the loss or damage;
(f) an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct, at his own expense, to repair, or provide parts for, goods that had been supplied by the person who engaged in the conduct to the person who suffered, or is likely to suffer, the loss or damage;
(g) an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct, at his own expense, to supply specified services to the person who suffered, or is likely to suffer, the loss or damage;
(h) an order, in relation to an instrument creating or transferring an interest in land, directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct to execute an instrument that –
(i) varies, or has the effect of varying, the first-mentioned instrument; or
(ii) terminates or otherwise affects, or has the effect of terminating or otherwise affecting, the operation or effect of the first-mentioned instrument.
(6) For the purpose of determining whether to make an order under this section in relation to a contravention of section 15, the court having jurisdiction in the relevant proceeding may have regard to the conduct of the parties to the proceeding since the contravention occurred.
(7) The powers conferred on a court having jurisdiction in the relevant proceeding under this section in relation to a contract or arrangement do not affect any powers that any other court may have in relation to the contract or arrangement in proceedings instituted in that other court in respect of the contract or arrangement.