Part 1
Unfair conduct
Unconscionable conduct
8Court may have regard to certain matters
When assessing under section 7 whether a person’s conduct is unconscionable, a court may have regard to 1 or more of the following:
- the relative bargaining power of the person engaging in the conduct (the trader) and any person (whether or not an identified individual) who is disadvantaged, or likely to be disadvantaged, by the conduct (an affected person):
- the extent to which the trader and an affected person acted in good faith:
- whether, taking account of the particular characteristics and circumstances of an affected person, the affected person or the affected person’s representative was reasonably able to protect the affected person’s interests:
- whether an affected person was able to understand any documents provided by the trader:
- whether the trader subjected an affected person to unfair pressure or tactics or otherwise unduly influenced an affected person:
- whether the trader unreasonably failed to disclose to an affected person—
- any intended conduct of the trader that might adversely affect the affected person’s interests:
- any risk to the affected person’s interests arising from the trader’s intended conduct, if the trader should have foreseen that the risk would not be apparent to the affected person:
- any intended conduct of the trader that might adversely affect the affected person’s interests:
- if there is a contract to which the conduct relates, anything listed in subsection (2):
- any other circumstance that the court considers relevant.
If the conduct involves a contract between the trader and an affected person, the court may also have regard to—
- the circumstances in which the contract was entered into, including—
- any inducement to enter into it:
- the extent to which the affected person had an effective opportunity to negotiate the terms:
- any inducement to enter into it:
- whether the affected person obtained independent legal advice, or other independent professional advice, about the contract before entering into it:
- the terms of the contract:
- the form of the contract, including, in the case of a written contract, whether its terms are transparent:
- whether the terms of the contract allow the affected person to be reasonably able to meet their obligations under it:
- whether the affected person’s obligations under the contract are reasonably necessary for the protection of the trader’s legitimate interests:
- the conduct of the trader and affected person in complying with the terms of the contract:
- the length of time the affected person has to remedy any breach:
- whether any action by the trader in relation to enforcement of the contract was lawful:
- any other conduct of the trader or affected person, after the contract was entered into, in connection with their relationship.
To the extent (if any) that no particular individual is identified as disadvantaged or likely to be disadvantaged by the conduct, this section applies with all necessary modifications as if—
- references to an affected person were references to the type of person likely to be disadvantaged by the conduct; and
- references to the existence of a particular circumstance were references to the likely existence of that circumstance in relation to that type of person.
Notes
- Section 8: inserted, on , by section 6 of the Fair Trading Amendment Act 2021 (2021 No 32).