Introduction
This paper tracks the legislative development of the unfair contract terms regime, recaps the basic elements and exemptions to the regime’s application and then recounts the historic development of the case law in respect of the regime.
The case development focuses on:
the initial cases determined, the first small business cases;
how the Australian Competition and Consumer Commission (ACCC) and the Australian Securities and Investments Commission (ASIC) have approached enforcement of the regime;
how individual litigants have utilised the regime; and
concludes with a consideration of the future in light of the legislative changes which commenced on 9 November 2023 and are being contemplated in a Treasury consultation paper issued 15 February 2024.
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