The principles laid down in cba v amadio have since

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The principles laid down in CBA v Amadio have since been consistently followed and applied in all Australian jurisdictions. Legislation In Australia unconscionable conduct is also the subject of legislation at both Federal and State and Territory level. There are two major statutes which affect the question of unconscionability, the Competition and Consumer Act 2010 (Cth) – (and the adopting provisions in the various state and territory Fair Trading Acts) and the Contracts Review Act 1980 (NSW). The Competition and Consumer Act 2010 A provision equivalent to s 21 of the Australian Consumer Law was inserted into forerunner of the Competition and Consumer Act (the old Trade Practices Act 1974) in 1986 to provide some statutory recognition of unconscionability after the High Court handed down its decision in CBA v Amadio . What it did was to prohibit corporations, ‘in trade or commerce, in connection with the supply or possible supply of goods or services to a person, [from engaging] in conduct that [was], in all the circumstances, unconscionable’. It was purely a consumer protection measure, it did not apply to unconscionability in commercial transactions (those where no consumer was involved) and was subsequently replaced by three other specific provisions to extend the statutory protection to cases where the unconscionable conduct occurred in general commercial transactions or in “business to business” transactions. The new sections did not really extend the law a great deal. What they were designed to do was to incorporate conduct that cases such as Amadio (the ‘unwritten law’) declared to be unconscionable into the Australian Consumer Law. The reason was simple. Under the general law if a court finds that a contract has been entered into because of one party’s unconscionable conduct all it can do is set that contract aside. The Australian Consumer Law provides much greater flexibility in the sorts of remedies that can be ordered, especially using all of the ancillary remedies provided for in s.243. Section 21 simply prohibits a person acting “in trade or commerce, in connection with the supply or possible supply of goods or services to another person, from engaging in conduct that is, in all the circumstances, unconscionable”. It goes on to list five factors which the court may take into account in determining whether there has been such conduct. They are: the relative bargaining strengths of the supplier and the consumer; whether the consumer was required to comply with conditions not reasonably necessary for protection of the supplier’s legitimate interests; whether the consumer was able to understand the documents; whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the consumer; and the amount for which, and the circumstances under which, the consumer could have acquired identical or equivalent goods elsewhere (ie what other options were open to the consumer).
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