Victorian Numbered Acts

AUSTRALIAN CONSUMER LAW AND FAIR TRADING ACT 2012 (NO. 21 OF 2012) - SECT 116

    (1)     If the Director institutes, continues or defends proceedings on behalf of a person under section 115—

        (a)     the Director may settle the proceedings either with or without obtaining judgment in the proceedings; and

        (b)     if a judgment is obtained in the proceedings in favour of the person, the Director may take such steps as are necessary to enforce the judgment; and

        (c)     subject to subsections (2) and (3), an amount (other than an amount in respect of costs) recovered by the Director in respect of the person in the proceedings is payable to the person; and

        (d)     an amount in respect of costs recovered in the proceedings is payable to the Director; and

        (e)     subject to subsection (2), the person is liable to pay an amount (not being an amount of costs) awarded against the person in the proceedings; and

        (f)     the Director is liable to pay the costs of or incidental to the proceedings that are payable by the person.

    (2)     If the Director institutes, defends or continues proceedings on behalf of a person without that person's consent or after the person revokes the consent to the institution, defence or continuation of the proceedings—

        (a)     the Director must compensate the person for—

              (i)     any loss suffered as the result of the loss of any settlement offer made to the person; and

              (ii)     out-of-pocket expenses incurred by the person during the proceedings after the revocation of consent; and

        (b)     the Director is liable to pay any amount awarded against the person in the proceedings.

    (3)     If the Director institutes, defends or continues proceedings on behalf of a person without that person's consent or after the person revokes the consent to the institution, defence or continuation of the proceedings, any amount recovered by the Director in respect of the person in the proceedings (including any amount for costs) that exceeds the amount payable to the person under subsection (2) may be applied to the payment of the costs of, and incidental to, the proceedings for which the Director is liable or that are incurred by the Director in relation to the proceedings.

    (4)     If, in proceedings instituted, continued or defended on behalf of a person under section 115—

        (a)     a party to the proceedings files a counterclaim; or

        (b)     the person is entitled to file a counterclaim—

and the counterclaim is not or would not be related to the proceedings and to the interests of the person in the dispute, the Director may apply to the court or VCAT hearing the proceedings for an order that the counterclaim not be heard in the course of those proceedings.

    (5)     If the court or VCAT makes an order under subsection (4), the court or VCAT may make any ancillary or consequential orders that it thinks just.