The Fair Trading Amendment Act 2021 comes into force in August 2022 and this will place new obligations on businesses while providing new protections for consumers and small businesses.
The key change is that “standard form small trade contracts” will now be subject to the unfair contract principle.
To understand the significance of this change we first need to identify what constitutes a “small trade contract”? A small trade contract will need to be:
■ Between two parties engaged in trade;
■ Not a consumer contract; and
■ Not part of a trading relationship with an initial annual value exceeding $250,000.00 including GST.
Examples of a small trade contract will include terms of trade presented to a customer with little time for the terms to be reviewed or negotiated.
Prohibition of “unfair contract terms” A term will be considered “unfair” where:
■ It creates a significant imbalance of rights and obligations between the contracting parties;
■ the imbalance is not required to protect a party’s interests; and
■ if used, the term could disadvantage the other party. A provision giving only one party the ability to take certain actions (for example, varying the terms or terminating the contract) is likely to be considered “unfair”. Other terms that may be considered unfair include automatic rollover and renewal clauses, early termination charges and some forms of indemnity terms.
It is really important to remember that the Fair Trading Act is not designed to – and won’t – disadvantage a business that has a legitimate business interest and a term is required to protect this interest.
Unlike “unfairness”, the principle of “unconscionable conduct” is more nuanced, and less defined. Unconscionability will be considered on a case-by-case basis.
Factors that can be considered include:
■ Relative bargaining power of the parties;
■ Extent to which the parties acted in good faith;
■ Whether there was any undue influence;
■ If the affected party was able to understand the documents;
■ Commerce Commission.
The Commerce Commission has authority to commence proceedings against a business, if it believes that the terms of a contract are unfair, even if they are not party to the agreement or contract. As a result, it is important for a business to understand its obligations and to ensure that its standard form contracts will comply with the Fair Trading Act.
These changes will not apply to any contracts entered into before 16 August 2022.
However, take care when making any changes to existing contracts as the provisions will apply to contracts amended or varied after 16 August 2022 irrespective of when the contract was first entered into.