Western Australian Consolidated Acts Western Australian Consolidated Acts (1) In this
section —
applicable industry code , in relation to a person
who is a participant in an industry, means a code of practice relating to the
industry that has been prescribed under section 43 and that is in force;
commencement means the commencement of
section 27 of the Retail Shops and Fair Trading Legislation Amendment Act
2006 ;
industry code means a code regulating the conduct
of participants in an industry towards other participants in the industry or
towards consumers in the industry;
listed public company has the same meaning as it
has in the Income Tax Assessment Act 1997 of the Commonwealth.
(2) A person shall
not, in trade or commerce, in connection with —
(a) the
supply or possible supply of goods or services to another person (other than a
listed public company); or
(b) the
acquisition or possible acquisition of goods or services from another person
(other than a listed public company),
engage in conduct that
is, in all the circumstances, unconscionable.
(3) Without in any way
limiting the matters to which a court may have regard for the purpose of
determining whether a person (the supplier ) has contravened
subsection (2) in connection with the supply or possible supply of goods
or services to a person (the business consumer ), the court may have regard
to —
(a) the
relative strengths of the bargaining positions of the supplier and the
business consumer;
(b)
whether, as a result of conduct engaged in by the supplier, the business
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 business 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 business consumer (or a person acting on behalf of the
business 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;
(e) the
amount for which, and the circumstances under which, the business consumer
could have acquired identical or equivalent goods or services from a person
other than the supplier;
(f) the
extent to which the supplier’s conduct towards the business consumer was
consistent with the supplier’s conduct in similar transactions between
the supplier and other similar business consumers;
(g) the
requirements of any applicable industry code;
(h) the
requirements of any other industry code, if the business consumer acted on the
reasonable belief that the supplier would comply with that code;
(i)
the extent to which the supplier unreasonably failed to
disclose to the business consumer —
(i)
any intended conduct of the supplier that might affect
the interests of the business consumer; and
(ii)
any risks to the business consumer arising from the
supplier’s intended conduct that are risks that the supplier should have
foreseen would not be apparent to the business consumer;
(j) the
extent to which the supplier was willing to negotiate the terms and conditions
of any contract for the supply of the goods or services with the business
consumer; and
(k) the
extent to which the supplier and the business consumer acted in good faith.
(4) Without in any way
limiting the matters to which a court may have regard for the purpose of
determining whether a person (the acquirer ) has contravened
subsection (2) in connection with the acquisition or possible acquisition
of goods or services from a person (the small business supplier ), the court
may have regard to —
(a) the
relative strengths of the bargaining positions of the acquirer and the small
business supplier;
(b)
whether, as a result of conduct engaged in by the acquirer, the small business
supplier was required to comply with conditions that were not reasonably
necessary for the protection of the legitimate interests of the acquirer;
(c)
whether the small business supplier was able to understand any documents
relating to the acquisition or possible acquisition of the goods or services;
(d)
whether any undue influence or pressure was exerted on, or any unfair tactics
were used against, the small business supplier (or a person acting on behalf
of the small business supplier) by the acquirer or a person acting on behalf
of the acquirer in relation to the acquisition or possible acquisition of the
goods or services;
(e) the
amount for which, and the circumstances in which, the small business supplier
could have supplied identical or equivalent goods or services to a person
other than the acquirer;
(f) the
extent to which the acquirer’s conduct towards the small business
supplier was consistent with the acquirer’s conduct in similar
transactions between the acquirer and other similar small business suppliers;
(g) the
requirements of any applicable industry code;
(h) the
requirements of any other industry code, if the small business supplier acted
on the reasonable belief that the acquirer would comply with that code;
(i)
the extent to which the acquirer unreasonably failed to
disclose to the small business supplier —
(i)
any intended conduct of the acquirer that might affect
the interests of the small business supplier; and
(ii)
any risks to the small business supplier arising from the
acquirer’s intended conduct that are risks that the acquirer should have
foreseen would not be apparent to the small business supplier;
(j) the
extent to which the acquirer was willing to negotiate the terms and conditions
of any contract for the acquisition of the goods or services with the small
business supplier; and
(k) the
extent to which the acquirer and the small business supplier acted in good
faith.
(5) A person is not to
be taken for the purposes of this section to engage in unconscionable conduct
in connection with —
(a) the
supply or possible supply of goods or services to another person; or
(b) the
acquisition or possible acquisition of goods or services from another person,
only because the
first-mentioned person institutes legal proceedings in relation to that
supply, possible supply, acquisition or possible acquisition or refers a
dispute or claim in relation to that supply, possible supply, acquisition or
possible acquisition to arbitration.
(6) For the purpose of
determining whether a person has contravened subsection (2) —
(a) a
court is not to 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 circumstances existing before the commencement but
not to conduct engaged in before the commencement.
(7) A reference in
this section to the supply or possible supply of goods or services is a
reference to the supply or possible supply of goods or services to a person
whose acquisition or possible acquisition of the goods or services is or would
be for the purpose of trade or commerce.
(8) A reference in
this section to the acquisition or possible acquisition of goods or services
is a reference to the acquisition or possible acquisition of goods or services
by a person whose acquisition or possible acquisition of the goods or services
is or would be for the purpose of trade or commerce.
(9) A reference in
this section to the supply or possible supply of goods or services does not
include a reference to the supply or possible supply of goods or services at a
price in excess of $3 000 000, or such higher amount as is
prescribed.
(10) A reference in
this section to the acquisition or possible acquisition of goods or services
does not include a reference to the acquisition or possible acquisition of
goods or services at a price in excess of $3 000 000, or such higher
amount as is prescribed.
(11) For the purposes
of subsections (9) and (10) —
(a)
subject to paragraphs (b), (c), (d) and (e), the price for —
(i)
the supply or possible supply of goods or services to a
person; or
(ii)
the acquisition or possible acquisition of goods or
services by a person,
is taken to be the
amount paid or payable by the person for the goods or services;
(b)
section 6(3)(c) applies as if references in that provision to the
purchase of goods or services by a person were references to —
(i)
the supply of goods or services to a person pursuant to a
purchase; or
(ii)
the acquisition of goods or services by a person by way
of purchase,
as the case requires;
(c)
section 6(3)(d) applies as if —
(i)
the reference in that provision to a person acquiring
goods or services otherwise than by way of purchase included a reference to a
person being supplied with goods or services otherwise than pursuant to a
purchase; and
(ii)
a reference in that provision to acquisition included a
reference to supply;
(d)
section 5(3) applies as if the reference in that provision to the
acquisition of goods or services by a person, or to the acquisition of
services by a person, included a reference to the supply of goods or services
to a person, or to the supply of services to a person, as the case requires;
and
(e) the
price for the supply or possible supply, or the acquisition or possible
acquisition, of services comprising or including a loan or loan facility is
taken to include the capital value of the loan or loan facility.
[Section 11A inserted by No. 47 of 2006
s. 27.]