Western Australian Consolidated Acts Western Australian Consolidated Acts (1) Without limiting
the generality of section 74 or 75, if, in a proceeding instituted under
this Part, or for an offence against this Act, the Supreme Court or the
District Court is satisfied that a person has suffered, or is likely to
suffer, loss or damage by reason of conduct of another person that contravened
a provision of this Act, the Court, whether or not an injunction under this
Part or any other relief is granted or any other order is made in those
proceedings, may make such order or orders as the Court thinks appropriate
against the person who engaged in the conduct or a person who was involved in
the contravention for the purpose of compensating the first-mentioned person
wholly or in part for the loss or damage or of preventing or reducing the
extent of the loss or damage.
(2) Whether or not
other proceedings have been instituted under this Act in relation to a
contravention, the Court may —
(a) on
the application of a person who has suffered, or is likely to suffer, loss or
damage by reason of the contravention; or
(b) on
the application of the Commissioner on behalf of one or more such persons made
with the written consent of each such person,
make orders under this
section.
(3) The orders that
may be made under this section include —
(a) an
order declaring the whole or any part of a contract made between the person
who suffered, or is likely to suffer, the loss or damage and the person who
engaged in the conduct or a person who was involved in the contravention
constituted by the conduct, or of a collateral arrangement relating to such a
contract, to be void and, if the Court thinks fit, to have been void from its
beginning or at all times on and after such date, before the date on which the
order is made, as is specified in the order;
(b) an
order varying such a contract or arrangement in such manner as is specified in
the order and, if the court thinks fit, declaring the contract or arrangement
to have had effect as so varied on and after such date, before the date on
which the order is made, as is so specified;
(c) an
order refusing to enforce any or all of the provisions of such a contract or
arrangement;
(d) an
order directing the person who engaged in the conduct or a person who was
involved in the contravention constituted by the conduct to refund money or
return property to the person who suffered the loss or damage;
(e) an
order directing the person who engaged in the conduct or a person who was
involved in the contravention constituted by the conduct to pay to the person
who suffered the loss or damage the amount of the loss or damage;
(f) an
order directing the person who engaged in the conduct or a person who was
involved in the contravention constituted by the conduct, at the
person’s own expense, to supply specified services to the person who
suffered, or is likely to suffer, the loss or damage; and
(g) an
order, in relation to an instrument creating or transferring an interest in
land, directing the person who engaged in the conduct or a person who was
involved in the contravention constituted by the conduct to execute an
instrument that —
(i)
varies, or has the effect of varying, the first-mentioned
instrument; or
(ii)
terminates or otherwise affects, or has the effect of
terminating or otherwise affecting, the operation or effect of the
first-mentioned instrument.
(4) An application
under subsection (2) in relation to a contravention of section 11 or
11A may be made at any time within 2 years after the cause of action
accrued or, in any other case, at any time within 3 years after the cause
of action accrued.
(5) For the purpose of
determining whether to make an order under this section in relation to a
contravention of section 11 or 11A, the Court may have regard to the
conduct of the parties to the proceedings since the contravention occurred.
(6) The Court shall
not make an order under this section in relation to a contravention of
section 11 or 11A in relation to a contract of insurance to which the
Insurance Contracts Act 1984 of the Commonwealth applies.
(7) The powers
conferred on the Supreme Court and the District Court under this
section in relation to a contract or arrangement do not affect any powers
that any other court may have in relation to the contract or arrangement in
proceedings instituted in that other court in respect of the contract or
arrangement.
[Section 77 amended by No. 47 of 2006
s. 30.]