Document ID: chunk:federal_register_of_legislation:C2012C00868:clause:2_21:p1
Version: federal_register_of_legislation:C2012C00868
Segment Type: clause
Provision Reference: sch 2 cl 21 (pt 1/2)
Character Range: 71265–73939

21  Unconscionable conduct

 (1) A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services to another person, engage in conduct that is, in all the circumstances, unconscionable.

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

 (2) Without in any way limiting the matters to which the court may have regard for the purpose of determining whether a person (the supplier) has contravened subsection (1) in connection with the supply or possible supply of goods or services to another person (the consumer), the court may have regard to:
 (a) the relative strengths of the bargaining positions of the supplier and the consumer; and
 (b) whether, as a result of conduct engaged in by the person, the consumer 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 consumer 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 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 person is not to 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 person by reason only that the person 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 person has contravened subsection (1) in connection with the supply or possible supply of goods or services to another person:
 (a) the court must not have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention; and
 (b) the court may have regard to conduct engaged in, or circumstances existing, before the commencement of this section.

 (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