What does unconscionable conduct mean?
The Trade Practices Act prohibits unconscionable conduct in commercial dealings under ss. 51AA and 51AC. Section 51AA prohibits unconscionable conduct within the meaning of the general law. The term unconscionable conduct is not specifically defined in the Act, and has come to refer to circumstances in which: • one party to a transaction suffered from a special disability or disadvantage in dealing with the other party • the disability was sufficiently evident to the stronger party • the stronger party took unfair advantage or unconscionable advantage of its superior position or bargaining power to obtain a beneficial bargain. The essence of special disability is whether or not it seriously affects the ability of the weaker party to judge what is in its best interests. Simply having a disparity in bargaining power would not be considered a special disability. Instances of special disability have included: • ignorance of material facts known to the other party • illiteracy or lack of ed
