32Unconscionable conduct by contractors

32 Unconscionable conduct by contractors

(1) A contractor must not engage in unconscionable conduct with respect to a hirer.

(2) Without in any way limiting the matters to which the Tribunal may have regard for the purpose of determining whether a contractor has contravened subsection (1), the Tribunal may have regard to any one or more of the following—

(a) the relative strengths of the bargaining positions of the contractor and the hirer;

(b) whether, as a result of conduct engaged in by the contractor, the hirer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the contractor;

(c) whether the hirer was able to understand any documents relating to the provision or possible provision by the contractor of services to the hirer;

(d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the hirer or a person acting on behalf of the hirer by the contractor or a person acting on behalf of the contractor in relation to the provision or possible provision by the contractor of services to the hirer;

(e) the amount for which, and the circumstances in which, the hirer could have acquired identical or equivalent services from a person other than the contractor, including from an employee;

(f) the extent to which the contractor's conduct towards the hirer was consistent with the contractor's conduct in similar transactions between the contractor and other like hirers;

(g) the requirements of any applicable code of practice;

(h) the extent to which the contractor unreasonably failed to disclose to the hirer—

(i) any intended conduct of the contractor that might affect the interests of the hirer;

(ii) any risks to the hirer arising from the contractor's intended conduct, being risks that the contractor should have foreseen would not be apparent to the hirer;

(i) the extent to which the contractor was willing to negotiate the terms and conditions of any contract for the provision or possible provision of services by the contractor;

(j) the extent to which the contractor and the hirer acted in good faith.