On August 16, 2021, the Fair Trading Amendment Bill has received the Royal Assent. The Fair Trading Amendment Act 2021 introduces significant changes to the Fair Trading Act 1986.
- Clause 6 of the Act inserts a new provisions relating to unfair conduct.
- New Provision prohibits conduct in trade that is unconscionable.
- Provision outlines the factors that a court may have regard to when assessing whether conduct is unconscionable including (but not limited to):
- relative bargaining power
- the extent to which the trader and an affected person acted in good faith
- whether unfair pressure or undue influence was used
- whether an affected person was able to understand documents provided by the trader.
Where a contract is entered into between a trader and an affected person, the court may also consider (among other things):
- any inducement to enter into the contract
- whether the affected person obtained legal advice or other professional advice
- the terms of the contract
- whether the terms of the contract allow the affected person to reasonably meet their obligations
- the length of time the affected person has to remedy any breach.
- Clause 7 extends the prohibition to a newly defined “small trade contract” – a contract between parties in trade that does not form part of a trading relationship that exceeds an annual value of $250,000 for goods or services, or interest in land, when the contract is first entered into.
For more details, refer HERE