Authors: Joe Edwards, Troy Pilkington
Published: 3 October 2022
Pages: 25

Introduction

On 16 August 2022, two significant changes to the Fair Trading Act 1986 (FTA) came into force:1

1. a new statutory prohibition on unconscionable conduct in trade was introduced; and
2. the unfair contract term (UCT) regime of the FTA, which previously applied only to standard form consumer (B2C) contracts, was extended to also apply to certain business-to-business (B2B) contracts.

The introduction of these two changes brings the FTA more into line with its Australian counterpart, the Australian Consumer Law.

From our perspective, these prohibitions are some of the most significant changes to New Zealand's commercial law framework in recent memory. Going forward, they are likely to have far-reching impacts on the way that businesses negotiate, engage and contract with one another and with consumers.

This paper discusses these two key changes, highlighting key themes and principles that stem from the enforcement of similar provisions in Australia under the Australian Consumer Law, as well as practical steps for businesses to follow to ensure that they comply with the FTA.

Content outline

• The prohibition against unconscionable conduct
• Unfair contract terms business-to-business extension