Western Australian Consolidated Acts

FAIR TRADING ACT 1987 - SECT 35

35 .         Limitation of liability for breach of certain conditions or warranties (TPA s. 68A)

        (1)         Subject to this section, a term of a contract for the supply of goods or services other than goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption is not void under section 34 by reason only that the term limits the liability of the supplier for a breach of a condition or warranty (other than a condition or warranty implied by section 36) to — 

            (a)         in the case of goods, any one or more of the following — 

                  (i)         the replacement of the goods or the supply of equivalent goods;

                  (ii)         the repair of the goods;

                  (iii)         the payment of the cost of replacing the goods or of acquiring equivalent goods;

                  (iv)         the payment of the cost of having the goods repaired;

                or

            (b)         in the case of services — 

                  (i)         the supplying of the services again; or

                  (ii)         the payment of the cost of having the services supplied again.

        (2)         Subsection (1) does not apply in relation to a term of a contract if the person to whom the goods or services were supplied establishes that it is not fair or reasonable for the supplier to rely on that term of the contract.

        (3)         In determining for the purposes of subsection (2) whether or not reliance on a term of a contract is fair or reasonable, a court shall have regard to all the circumstances of the case and in particular to the following matters — 

            (a)         the strength of the bargaining positions of the supplier and the person to whom the goods or services were supplied (in this subsection referred to as the buyer ) relative to each other, taking into account, among other things, the availability of equivalent goods or services and suitable alternative sources of supply;

            (b)         whether the buyer received an inducement to agree to the term or, in agreeing to the term, had an opportunity of acquiring the goods or services or equivalent goods or services from any source of supply under a contract that did not include that term;

            (c)         whether the buyer knew or ought reasonably to have known of the existence and extent of the term (having regard, among other things, to any custom of the trade and any previous course of dealing between the parties); and

            (d)         in the case of the supply of goods, whether the goods were manufactured, processed or adapted to the special order of the buyer.