Victorian Consolidated Legislation

Fair Trading Act 1999 - SECT 32ZC

Declaration by Court or Tribunal

32ZC. Declaration by Court or Tribunal









(1) The Director may apply to the Supreme Court, the County Court or the
Tribunal for an order declaring that-

   (a)  a contract is a consumer contract or standard form contract;

   (b)  a term of a consumer contract is an unfair term;

   (c)  a term of a standard form contract is a prescribed unfair term.

(2) The Court or the Tribunal may make a declaration in relation to a matter
under subsection (1) or any related matter.

(3) The Tribunal's power to make a declaration under this section is
exercisable only by a presidential member.

(4) If the Court or the Tribunal makes an order under subsection (1) declaring
that a term of a consumer contract is an unfair term or that a term of a
standard form contract is a prescribed unfair term, the Court or the Tribunal
may make any one or more of the following orders-

   (a)  an order for the payment of a sum of money-

   (i)  by way of damages (including exemplary damages and damages in the
        nature of interest); or

   (ii) by way of restitution;

   (b)  an order that the contract is varied in the manner specified in the
        order and that the variation takes effect from the time specified in
        the order;

   (c)  an order that-

   (i)  money paid by a person under the contract be refunded to that person;
        or

   (ii) property transferred by a person under the contract is returned to
        that person;

   (d)  an order in the nature of an order for specific performance of the
        contract;

   (e)  an order for rescission of the contract;

   (f)  an order for rectification of the contract;

   (g)  an order that all or any of the provisions in the contract are not to
        be enforced;

   (h)  an order declaring that a debt is, or is not, owing;

        (i)    an order that a person do something, including an order that-

   (i)  the person repair or provide parts for goods provided under the
        contract to another person; or

   (ii) the person supply services required to be supplied under the contract
        to another person;

   (j)  an order that a person refrain from doing something.

(5) In awarding damages in the nature of interest, the Tribunal may base the
amount awarded on the interest rate fixed from time to time under section 2 of
the Penalty Interest Rates Act 1983 or on any lesser rate it thinks
appropriate.