Fair Trading Act 2010

Without limiting the generality of section 99 or 100, if, in a proceeding instituted under this Part, or for an offence against this Act, the Supreme Court or the District Court is satisfied that a person has suffered, or is likely to suffer, loss or damage by reason of conduct of another person that contravened a provision of this Act, the Court may make such order or orders as the Court thinks appropriate against the person who engaged in the conduct or a person who was involved in the contravention for the purpose of compensating the first‑mentioned person wholly or in part for the loss or damage or of preventing or reducing the extent of the loss or damage.

The Court may make an order under this section whether or not an injunction under this Division or any other relief is granted or any other order is made in the proceedings.

Whether or not other proceedings have been instituted under this Act in relation to a contravention, the Court may make orders under this section —

on the application of a person who has suffered, or is likely to suffer, loss or damage by reason of the contravention; or

on the application of the Commissioner on behalf of one or more such persons made with the written consent of each such person.

The orders that may be made under this section include the following —

an order declaring the whole or any part of a contract made between the person who suffered, or is likely to suffer, the loss or damage and the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct, or of a collateral arrangement relating to such a contract, to be void and, if the Court thinks fit, to have been void from its beginning or at all times on and after such date, before the date on which the order is made, as is specified in the order;

an order varying such a contract or arrangement in such manner as is specified in the order and, if the Court thinks fit, declaring the contract or arrangement to have had effect as so varied on and after such date, before the date on which the order is made, as is so specified;

an order refusing to enforce any or all of the provisions of such a contract or arrangement;

an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct to refund money or return property to the person who suffered the loss or damage;

an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct to pay to the person who suffered the loss or damage the amount of the loss or damage;

an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct, at the person’s own expense, to supply specified services to the person who suffered, or is likely to suffer, the loss or damage;

an order, in relation to an instrument creating or transferring an interest in land, directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct to execute an instrument that —

varies, or has the effect of varying, the first‑mentioned instrument; or

terminates or otherwise affects, or has the effect of terminating or otherwise affecting, the operation or effect of the first‑mentioned instrument.

The powers conferred on the Supreme Court and the District Court under this section in relation to a contract or arrangement do not affect any powers that any other court may have in relation to the contract or arrangement in proceedings instituted in that other court in respect of the contract or arrangement.

In this section, a person (the first person) is an associate of another person if —

the first person holds money or other property on behalf of the other person; or

if the other person is a body corporate, the first person is a wholly‑owned subsidiary (within the meaning of the Corporations Act 2001 (Commonwealth)) of the other person.

A Court may, on the application of the Minister or the Commissioner, make an order or orders of the kind specified in subsection (4) if —

proceedings of a kind referred to in subsection (3) have been taken against a person, or proceedings of a kind referred to in subsection (3)(d) may be taken against a person; and

the Court is satisfied that it is necessary or desirable to make the order or orders for the purpose of preserving money or other property held by, or on behalf of, the person if the person is liable or may become liable under this Act —

to pay moneys by way of a fine, damages, compensation, refund or otherwise; or

to transfer, sell or return other property;

the Court is satisfied that the making of the order or orders will not unduly prejudice the rights and interests of any other person.

For the purposes of subsection (2)(a), the kinds of proceedings taken against the person are as follows —

proceedings in the Supreme Court or the District Court against the person for an offence against this Act;

an application under section 99 or 100 for an injunction against the person in relation to a contravention of a provision of this Act;

an action under the Australian Consumer Law (WA) section 236(1) against the person in relation to a contravention of a provision of this Act;

an application for an order under section 105 against a person in relation to a contravention of a provision of this Act.

The Court may make the following orders under subsection (2) in relation to money or other property held by, or on behalf of, a person (the respondent) —

an order prohibiting, either absolutely or subject to conditions, a person who is indebted to the respondent, or to an associate of the respondent, from making a payment, in total or partial discharge of the debt —

to the respondent; or

to another person at the direction or request of the respondent;

an order prohibiting, either absolutely or subject to conditions, a person who is holding money or other property on behalf of the respondent, or on behalf of an associate of the respondent —

from paying all or any of the money to the respondent, or to another person at the direction or request of the respondent; or

from transferring the other property to the respondent, or to another person at the direction or request of the respondent, or otherwise parting with possession of that property;

an order prohibiting, either absolutely or subject to conditions, the taking or sending by any person of money of the respondent, or of an associate of the respondent, to a place outside the State;

an order prohibiting, either absolutely or subject to conditions, the taking, sending or transfer by any person of other property of the respondent, or of an associate of the respondent, to a place outside the State;

if the respondent is a natural person, an order appointing a receiver or trustee of the property, or of part of the property, of the respondent with such powers as are specified in the order.

If the Court makes an order under this section, the order operates —

for a period specified in the order (which must not be longer than 30 days if the application for the order was made in the absence of the person against whom the order is sought); or

if proceedings in relation to which the order is made are concluded before the end of that period, until the conclusion of those proceedings.

This section —

has effect subject to the Bankruptcy Act 1966 (Commonwealth); and

does not affect any other powers of the Supreme Court or the District Court.