Western Australian Consolidated Acts Western Australian Consolidated Acts (1) A supplier
shall not, in trade or commerce, in connection with the supply or possible
supply of goods or services to a consumer, engage in conduct that is, in all
the circumstances, unconscionable.
(2) Without limiting
the matters to which a court may have regard for the purpose of determining
whether a supplier has contravened subsection (1) in connection with the
supply or possible supply of goods or services, the court may have regard
to —
(a) the
relative strengths of the bargaining positions of the supplier and the
consumer;
(b)
whether, as a result of conduct engaged in by the supplier, the consumer was
required to comply with conditions that were not reasonably necessary for the
protection of the legitimate interests of the supplier;
(c)
whether the consumer was able to understand any documents relating to the
supply or possible supply of the goods or services;
(d)
whether any undue influence or pressure was exerted on, or any unfair tactics
were used against, the consumer (or a person acting on behalf of the consumer)
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 consumer could have
acquired identical or equivalent goods or services from a person other than
the supplier.
(3) A supplier shall
not be taken for the purposes of this section to engage in unconscionable
conduct in connection with the supply or possible supply of goods or services
to a consumer only because the supplier institutes legal proceedings in
relation to that supply or possible supply or refers a dispute or claim in
relation to that supply or possible supply to arbitration.
(4) For the purpose of
determining whether a supplier has contravened subsection (1) in
connection with the supply or possible supply of goods or services to a
consumer —
(a) a
court shall not have regard to any circumstances that were not reasonably
foreseeable at the time of the alleged contravention; and
(b) a
court may have regard to conduct engaged in, or circumstances existing, before
the commencement of this Act.
(5) A reference in
this section to goods or services is a reference to goods or services of
a kind ordinarily acquired for personal, domestic or household use or
consumption.
(6) A reference in
this section to the supply or possible supply of goods does not include a
reference to the supply or possible supply of goods for the purpose of
re-supply or for the purpose of using them up or transforming them in trade or
commerce.