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Department of Justice and Community Safety

UNCONSCIONABLE CONDUCT

What is unconscionable conduct?

Unconscionable conduct is any behaviour which has the effect of unlawfully placing the other party to a transaction at a serious disadvantage. Section 13 of the Fair Trading Act (the Act) provides a remedy by empowering the court to order a trader to change his/her behaviour in relation to the supply of goods or services normally purchased for personal or domestic use.

What sort of behaviour is unconscionable?

Situations where conduct may be considered unconscionable include where:

  • the bargaining strengths of the supplier and the consumer are unequal;
  • the consumer was unable to understand any documents involved;
  • the consumer was required to agree to conditions which were unnecessary to the transaction;
  • any undue influence or pressure was exerted on the consumer;
  • where any unfair tactics were used against the consumer.

In practical terms, this means that a business person cannot use a particular weakness of a person in order to gain business. Nor can the business person try to put the consumer at a disadvantage in order to gain his/her business. Examples of unconscionable conduct may include:

  • not ensuring that a consumer with limited reading skills or of limited English fully understood and agreed to any contract signed;
  • using a friend or relative of the consumer to influence the consumer's decision;
  • inducing the consumer to sign a blank contract;
  • taking advantage of the consumer's sickness, age or disabilities;
  • contracts which make false statements;
  • one-sided contracts, for instance contracts which are unclear about the consumer's rights, contracts which are so tough the consumer cannot help breaking them or contracts which can be broken easily by the business, but not by the consumer;
  • using high pressure tactics, for example refusing to take "no" for an answer.

Be careful when signing contracts! It is important to remember that consumers do not have to sign anything they don't agree to. Even if the business uses a standard contract, consumers have a right to try and negotiate terms that suit them better. Consumers also have a right to be informed about exactly what terms they will be agreeing to.