Victorian Consolidated Legislation

Fair Trading Act 1999 - SECT 32X

Assessment of unfair terms

32X. Assessment of unfair terms

Without limiting section 32W, in determining whether a term of a consumer
contract is unfair, a court or the Tribunal may take into account, among other
matters, whether the term was individually negotiated, whether the term is a
prescribed unfair term and whether the term has the object or effect of-

   (a)  permitting the supplier but not the consumer to avoid or limit
        performance of the contract;

   (b)  permitting the supplier but not the consumer to terminate the
        contract;

   (c)  penalising the consumer but not the supplier for a breach or
        termination of the contract;



   (d)  permitting the supplier but not the consumer to vary the terms of the
        contract;

   (e)  permitting the supplier but not the consumer to renew or not renew the
        contract;

   (f)  permitting the supplier to determine the price without the right of
        the consumer to terminate the contract;

   (g)  permitting the supplier unilaterally to vary the characteristics of
        the goods or services to be supplied under the contract;

   (h)  permitting the supplier unilaterally to determine whether the contract
        had been breached or to interpret its meaning;

        (i)    limiting the supplier's vicarious liability for its agents;

   (j)  permitting the supplier to assign the contract to the consumer's
        detriment without the consumer's consent;

   (k)  limiting the consumer's right to sue the supplier;

   (l)  limiting the evidence the consumer can lead in proceedings on the
        contract;

   (m)  imposing the evidential burden on the consumer in proceedings on the
        contract.