Victorian Consolidated Legislation

Fair Trading Act 1999 - SECT 32MA

Limitation of liability generally

32MA. Limitation of liability generally



(1) Subject to subsections (2) and (3), a term of a contract of supply of
goods or services is not void under section 32L or 32LA by reason only that
the term limits the liability of the supplier for breach of a condition or
warranty to-

   (a)  in the case of goods, any one or more of the following-

   (i)  the replacement of the goods or the supply of equivalent goods;

   (ii) the repair of the goods;

   (iii) the payment of the cost of replacing the goods or of purchasing
        equivalent goods;

   (iv) the payment of the cost of having the goods repaired; or

   (b)  in the case of services-

   (i)  the supply of the services again; or

   (ii) the payment of the cost of having the services supplied again.

(2) Subsection (1) does not apply in relation to a term of a contract of
supply of goods or services if the purchaser establishes that it is
unconscionable for the supplier to rely on that term.

(3) In determining for the purposes of subsection (2) whether or not reliance
on a term is unconscionable and without in any way limiting the matters to
which a court or the Tribunal may have regard, a court or the Tribunal may
have regard to all the circumstances of the case and in particular to the
following matters-

   (a)  the relative strengths of the bargaining positions of the supplier and
        the purchaser; and

   (b)  whether the term was reasonably necessary for the protection of the
        legitimate interests of the supplier; and

   (c)  whether the purchaser was able to understand the term or any documents
        relating to the term, including whether, when the supply was made, the
        purchaser was aware of the existence and extent of the term (having
        regard, among other things, to any custom of the trade or any previous
        course of dealing between the parties); and

   (d)  whether any undue influence or pressure was exerted on, or any unfair
        tactics were used against the purchaser or a person acting on behalf
        of the purchaser by the supplier or a person acting on behalf of the
        supplier in relation to the term; and

   (e)  the amount for which, and the circumstances under which, the purchaser
        could have been supplied with identical or equivalent goods or
        services from a person other than the supplier under a contract that
        did not include the term; and

   (f)  in the case of a supply of goods, whether the goods were manufactured,
        processed or adapted to the special order of the purchaser.

(4) This section does not apply to the supply of goods or services of a kind
ordinarily acquired for personal, domestic or household use or consumption.

(5) This section does not apply to allow a limitation of liability for a
breach of a condition or warranty implied by section 32G, 32GA or 32GB.