In August 2021, Parliament enacted a number of amendments to the Fair Trading Act 1986. Some minor changes were of immediate effect, with major changes coming into force from 16 August 2022. A key change coming into force this year is an extension of existing protections against unfair contract terms.
Previously, such protections have prohibited the inclusion of unfair contract terms in standard form consumer contracts. From August, these protections will be extended to some standard form business to business contracts, being those where the value of the contract is less than $250,000 in any year.
The amendments retain the current test used to determine whether a term can be declared unfair, namely in circumstances where: 
Crucially, the effect of a contract term being declared unfair is that it is unenforceable in its entirety, meaning a Court will not look to rewrite the term in such a way that makes it “fair” in their view.
In light of this coming into force, we recommended that businesses consider conducting a thorough review of their terms of trade , in particular, to mitigate any risk of these terms being declared unenforceable post 16 August 2022.
Should you have any concerns, our Business experts are available to assist in reviewing such terms and are able to provide recommendations in anticipation of the changes coming into force.
 Fair Trading Act 1986, s 46I.
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