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FAIR TRADING ACT 1987 - SECT 79U

Matters to be considered by Tribunal when making orders

79U Matters to be considered by Tribunal when making orders

(cf CC Act 1998, s 13)

(1) When making any orders under this Division, the Tribunal must be satisfied that the orders will be fair and equitable to all the parties to the claim.
(2) Without limiting subsection (1), when determining whether or not to make an order under this Division, the Tribunal is to take the following factors into consideration if they are material to the particular circumstances of the case--
(a) whether or not there was any material inequality in bargaining power between the parties to the claim,
(b) whether or not any party to the claim was not reasonably able to protect the party's interest because of the age or physical or mental capacity of that party,
(c) whether or not any person who represented any of the parties to the claim was not reasonably able to protect the interests of the party represented because of the age or physical or mental capacity of that person,
(d) the relative economic circumstances, educational background and literacy of the parties to the claim and of any person who represented any of those parties,
(e) whether or not and when independent legal or other expert advice was obtained by the claimant,
(f) whether any undue influence, unfair pressure or unfair tactic was exerted on or used against the claimant--
(i) by any other party to the claim, or
(ii) by any person acting or appearing or purporting to act on behalf of any other party to the claim, or
(iii) by any person to the knowledge of any other party to the claim or of any person acting or appearing or purporting to act on behalf of any other party to the claim,
(g) the conduct of the parties to the claim in relation to similar transactions to which any of them has been a party,
(h) where the subject of the claim is a contract for the supply of goods or services or a contract collateral to such a contract--
(i) whether or not before or at the time when the contract was made its provisions were the subject of negotiation, and
(ii) whether or not it was reasonably practicable for the claimant to negotiate for the alteration of the contract or to reject any of its provisions, and
(iii) whether or not any provisions of the contract impose conditions that are unreasonably difficult to comply with or not reasonably necessary for the protection of the legitimate interests of any party to the claim, and
(iv) if the contract is wholly or partly in writing, the physical form of the contract and the intelligibility of the language in which it is expressed, and
(v) the extent (if any) to which the provisions of the contract and their legal effect were accurately explained by any person to the claimant and whether or not the claimant understood the provisions and their effect, and
(vi) the commercial or other setting, purpose and effect of the contract.
(3) Without limiting subsection (1), when determining whether or not to make an order or orders under section 79N, 79O or 79P, it is appropriate for the Tribunal to consider (if relevant to the particular circumstances of the case)--
(a) any code of practice prescribed under this Act, and
(b) if the Secretary has brought to the attention of the Tribunal any other code of practice (whether or not prescribed by or under any other Act)--that code of practice.



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