In 1998 a provision equivalent to the present s 22 in

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In 1998 a provision equivalent to the present s 22 in the Australian Consumer Law was introduced to protect ‘business consumers’ and ‘small business suppliers’ from unconscionable conduct by either corporations or ‘persons’ acting in trade or commerce. In essence the section is designed to protect small business against exploitation by big business misusing its size or market power to gain an unfair advantage. Like s 21, s 22 lists a number of factors which the court may take into account in determining whether there has
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© Stephen Graw 2012 36 been any such exploitative conduct. They include all of the factors listed in s 21 as well as matters such as: the extent to which the dominant party’s conduct towards the business consumer or small business supplier was consistent with its conduct towards other business consumers or other small business suppliers; the requirements of any applicable industry codes; the extent to which the dominant party failed to disclose to the business consumer or small business supplier any intended conduct on its part that might affect the interests of that other party—or any risks to that other party arising from any such intended conduct; the extent to which the dominant party was willing to negotiate the terms of the contract which it entered into with the business consumer or small business supplier, the terms of the contract and how the parties conducted themselves; and the extent to which the dominant party and the business consumer or small business supplier acted in good faith. Remedies Where a supplier has breached the Australian Consumer Law provisions a consumer can effectively terminate the contract and seek compensation for any loss or damage arising out of the unconscionable conduct. Ancillary relief is also available under s 243. That section permits the courts to make orders invalidating or varying a contract, refusing to enforce any or all of its provisions, requiring the company to refund money, return property, reimburse the consumer for any loss or damage, or to repair or provide parts for goods supplied pursuant to the contract, or to supply specified services. The Fair Trading Acts The various State and Territory Fair Trading Acts have all adopted the Australian Consumer Law provisions as the law of their own jurisdictions. That is, they provide that those provisions are equally applicable in each of the states and territories – thereby extended their operation beyond what would be possible if they were simply a Commonwealth law. Illegality and void contracts Legality as an element of enforceability One of the seven elements of a valid contract is legality. Where the aim of a particular ‘contract’ is either achieving a result that is inherently illegal or doing something either illegally or for an illegal purpose the ‘contract’ will not be enforced. The reason is very simple — as Lord Mansfield put it in Holman v Johnson more than 200 years ago:
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