Victorian Consolidated Legislation

Fair Trading Act 1999 - SECT 8

Unconscionable conduct

8. Unconscionable conduct



(1) A person must not, in trade or commerce, in connection with the supply or
possible supply of goods or services of a kind ordinarily used for personal,
household or domestic purposes to a purchaser, engage in conduct that is, in
all the circumstances, unconscionable.

(2) Without in any way limiting the matters to which a court or the Tribunal
may have regard for the purpose of determining whether a person has
contravened subsection (1), a court or the Tribunal may have regard to-

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

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

   (c)  whether the purchaser 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 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 supply or possible supply of the goods or
        services; 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.

(3) A person must not be taken to have contravened subsection (1) by reason
only that the person institutes legal proceedings in relation to the supply or
possible supply of goods or services to a purchaser.

(4) For the purpose of determining whether a supplier has contravened
subsection (1)-

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

   (b)  the court or the Tribunal may have regard to conduct engaged in, or
        circumstances existing, before the commencement of this section.

(5) This section does not apply to the supply or possible supply of goods if
the supply or the possible supply of the goods is for the purpose of
re-supply, in trade or commerce, or for the purpose of using the goods up or
transforming the goods in trade or commerce.