1. The Tribunal declares that the Agreement between the parties dated 4 April 2018 was properly terminated by A & H Natoli Pty Ltd and Organic Oz Pty Ltd on 18 May 2018.
2. The Tribunal declares that the deed of charge dated 7 April 2018 executed by A & H Natoli Pty Ltd and Organic Oz Pty Ltd in favour of Teen Entertainment Enterprise Network Pty Ltd is of no force or effect.
3. The Tribunal declares that the deed of charge dated 4 April 2018 executed by Helen Natoli in favour of Irene Spaleta, Bob Spaleta and Teen Entertainment Enterprise Network Pty Ltd is of no force or effect.
4. The claim made by Teen Entertainment Enterprise Network Pty Ltd for specific performance of the Agreement dated 4 April 2018 is dismissed.
5. The claim made by Teen Entertainment Enterprise Network Pty Ltd for damages is dismissed.
6. By 10 September 2019 Teen Entertainment Enterprise Network Pty Ltd must file with the Tribunal and serve on the other parties an affidavit setting out a detailed account of the receipt and disbursement of all funds held by Teen Entertainment Enterprise Network Pty Ltd in the bank account referred to in paragraph 35 of the affidavit of Bob Spaleta dated 14 June 2018.
7. By 17 September 2019 A & H Natoli Pty Ltd and Organic Oz Pty Ltd must file with the Tribunal and serve on Teen Entertainment Enterprise Network Pty Ltd an affidavit in relation to the payment of the debts comprising the supplier debts set out in the attachment to the Agreement between the parties dated 4 April 2018.
8. Proceedings C4877/2018 and C5571/2018 are listed for Directions Hearing at 2.00 pm on 20 September 2019 to set down a timetable for the parties to make submissions as to the further orders to be made.

1. Proceedings C4877/2018 and C5571/2018 concern a dispute about whether an arrangement between A & H Natoli Pty Ltd (Natoli) and Organic Oz Pty Ltd (Organic) (together, the Companies) on the one hand, and Teen Entertainment Enterprise Network Pty Ltd (Teen) on the other, constitutes a legally binding agreement.
2. The background to the dispute goes back several years. The Companies operated a green grocery store in Bentleigh. The Companies' common director, Tony Natoli, and his wife, Helen Natoli, ran the store. Tony Natoli's parents were also greengrocers, and he has worked in this field since he left school. The store commenced operation around 2012 and, initially was successful. Soon, though, the business faced difficulties, and in 2014 the Companies were in dispute with the landlord, in relation to rent arrears, and charges for outgoings.
3. Tony Natoli and Helen Natoli were introduced to Irene Spaleta and her husband Bob Spaleta through the soccer club at which their sons played. The introduction was made by another soccer parent who suggested to Helen Natoli that Irene Spaleta might be able to help the Natolis with the dispute with their landlord.
4. Both Tony Natoli and Helen Natoli say they understood Irene Spaleta to be a lawyer experienced in negotiating retail leases, and were glad to have someone skilled to help them with their dispute. Irene Spaleta is not an Australian Lawyer, but readily agreed that she would help the Natolis with their negotiation with the landlord. Although neither is legally qualified, the Spaletas had successfully conducted a long running retail lease dispute in this Tribunal and in the Supreme Court from 2011 to 2016.
5. Irene Spaleta negotiated a resolution to the Natolis' dispute with the landlord. Helen Natoli says that after this, Irene Spaleta offered to provide further assistance to the Companies, to help the business keep on top of the payment plan that had been negotiated with the landlord, and other expenses. Helen Natoli says that Irene Spaleta said she would assist them "pro bono".
6. The Natolis and the Spaletas agree that over the next year or so they met regularly, with their families, usually over dinner at the Natolis' home, most weeks, to review the financial performance of the greengrocer business.
7. Helen Natoli says that this arrangement stopped in late 2015. Helen Natoli's recollection is that Irene Spaleta said she had to focus on litigation she was involved in. Irene Spaleta agrees with this, and also says she withdrew her assistance because she felt the Natolis were not following her advice.
8. The families reconnected again 2017, when Irene Spaleta approached Tony Natoli. The Companies were again experiencing difficulties with the landlord, and Irene Spaleta negotiated a resolution for the Companies. Shortly after this, Irene Spaleta resumed assisting the Natolis in managing the expenses of the business. Once again, the families met regularly for these discussions over dinner at the Natoli's home. This continued throughout 2017 and into 2018.
9. On 30 March 2018 Teen was incorporated, with Irene Spaleta's mother, Ms Stefanija Posaric, as the sole director.
10. On 4 April 2018 the Companies and Teen executed an Agreement, described in clause 1 as "an Agreement for the provision of exclusive management consultancy services by [Teen] to [the Companies]' businesses located at [Bentleigh] for the duration of the lease from 4 April 2018 to 19 August 2027." [1] I deal with the terms of the Agreement later in these reasons. I mention at the outset, though, that the Agreement provided that all the cash coming into Companies' greengrocery business was to go to and be controlled by Teen, to the exclusion of the Companies, which is an extremely unusual arrangement when the Companies owned the business and Teen was merely providing services.
11. In addition to the Agreement, 2 charges were granted in favour of Teen. Tony Natoli executed a charge over the business on 7 May 2018, and Helen Natoli executed a charge over the family home, which was in her name, on 4 April 2018. Helen Natoli also executed a confidentiality agreement.
12. On 18 May 2018 the Companies, through their lawyers, purported to terminate the Agreement, asserting that the Agreement was void on a number of grounds, including that it was a sham, or, alternatively that it was an unfair contract within the meaning of the Competition and Consumer Act 2010 (Cth). For the purposes of this proceeding I have treated that reference as a reference to the Australian Consumer Law (ACL).
13. Despite having been so notified that the Companies considered the Agreement to be void and terminated from 18 May 2018, on 30 May 2018 Teen registered the charge over the business on the Personal Property Securities Register.[2]
14. The Companies applied to the Tribunal on 6 June 2018 for an injunction and freezing order which was granted, ex parte, on 8 June 2018. The order prohibits Teen from removing from Australia or in any way disposing of, dealing with or diminishing the value of the proceeds received by Teen from the conduct of the Companies' business pursuant to clause 15 of the Agreement dated 4 April 2018. The order was extended by the Tribunal's further order dated 18 June 2018.
15. In proceeding C4877/2018 the Companies claim[3]

1. A declaration that the Agreement is void ab initio, or alternatively, that the Agreement was properly terminated by the Companies on 18 May 2018; 2. A declaration that the deeds of charge are of no force or effect[4];

1. An order requiring Teen to withdraw the security interest registered over [the Companies];

1. An accounting of the receipt of all funds by Teen from the date of the Agreement and the disbursement of those funds from the date of the Agreement, including the date of receipt of any such funds and the date each payment of such funds was made; 2. A declaration that Teen has no right, title or interest in [the Companies]' business or any part of the business; 3. Reimbursement of all money received by Teen pursuant to the Agreement less any amounts properly paid or applied by Teen to a third party (other than Teen); and 4. Costs
2. In proceeding C5571/2018 Teen claims that the Agreement was an "Addendum Agreement" to an earlier oral agreement, and seeks orders[5]:
   1. for specific performance of the Agreement;
   2. that the Companies perform their obligations under the Agreement and Addendum Agreement";
   3. that the business conducted by the Companies and the Lease Agreement over the premises be transferred to Teen;
   4. preventing the Companies being "involved in a business of the same or similar type within 3 kilometres and 3 years.";
   5. for a "pre-transfer inspection of premises by Council environmental health officer" and rectification of any [deficiencies] prior to assignment of the Lease and transfer of the business;
   6. In the alternative, damages for breach of contract;
   7. An amount calculated as $570.52 per day from 4 April 2018 to the date of Lease Assignment and transfer of the business; and
   8. Damages, interest and costs and any orders the Tribunal thinks fit.
3. In the hearing Teen clarified its claim for damages as a claim for $25,111.68, calculated at $570.72 per day for the 44 days between 4 April 2018 when the Agreement was signed and 18 May 2018 when it was purportedly terminated.
4. I conducted a hearing over 2 days in February 2019, and a further 2 days in May 2019. I heard evidence from Irene Spaleta, who is the current director of Teen,[6] Bob Spaleta, Tony Natoli, the sole director of each of the Companies, and from Helen Natoli. At the end of the hearing I gave the parties an opportunity to make written submissions. Written submissions for the Companies were filed on 25 June 2019. Written submissions for Teen were filed on 22 July 2019. Having considered the evidence given in the hearing, and the written submissions, I now give my reasons for decision.
5. The issues I must determine are:
   • What were the terms of the agreement between the parties?
   • Were any of the terms "unfair terms" within the meaning of the ACL?
   • Did Teen, or Bob Spaleta, or Irene Spaleta engage in unconscionable conduct within the meaning of the ACL?
   • Has the agreement been validly terminated?

• Is Teen entitled to specific performance or damages?

What were the terms of the agreement between the parties?

1. The parties agree that the following documents were executed by the parties:

1. The Agreement executed on 4 April 2018 referred to above; 2. A deed of charge over the business of the Companies, made on 7 May 2018;

1. A confidentiality agreement between Teen and Helen Natoli dated 4 April 2018; and

1. A deed of charge granted by Helen Natoli over her primary residence.
2. Teen asserts that the Agreement executed on 4 April 2018 was an "Addendum" to an earlier oral agreement it alleges was formed between Irene Spaleta and the Companies in April 2017. Teen asserts that the Agreement between it and the Companies consists of the earlier 2017 oral agreement and the agreement in writing executed by the parties on 4 April 2018.
3. In its Further Points of Counterclaim dated 29 October 2018, Teen asserted that
   1. Irene Spaleta and the Companies had entered into an oral agreement in April 2017 under which Irene Spaleta would provide services to the companies that included negotiating a rent arrears payment plan with the landlord, "monitoring [the Companies]' financials" and "managing the repayment plan".
   2. fees were agreed of $500 per hour for work in relation to the lease, and $200 per hour for all other work.
   3. the payment of fees would be deferred until the rent arears plan had been completed, and that the Lease would be assigned to Teen when all rent arrears had been settled.
   4. Irene Spaleta would nominate a corporate entity as assignee of her rights to accept the assignments.
   5. it was agreed that Tony Natoli would be engaged by Teen on a salary.
   6. the agreement in writing executed by the parties on 4 April 2018 was intended to supplement the oral agreement reached in 2017.
4. In these reasons, I will refer to the Agreement executed on 4 April 2018 as "the Agreement" and the oral agreement purportedly made in early 2017 as "the Oral Agreement".
5. Teen also asserts that that there had been a constant objective between the Spaletas and the Natolis, and that this objective was the transfer of the Companies' business to the Spaletas.
6. Bob Spaleta asserted that Tony Natoli was tired of running the business and wanted to work fewer hours; that Helen Natoli wanted to spend time and money on renovating the family home; that the Natolis asked for help in running the business; and that he and Irene Spaleta had offered to provide that help, provided that the business could be transferred to them once it was debt free.
7. Bob Spaleta said that the Natolis had made it known to the Spaletas that the business had been put up for sale in 2017. A Statement in accordance with s 52 of the Estate Agents Act 1980 had been prepared. Bob Spaleta relied on the Statement as proof that the Natolis had a continuing desire to sell the business.
8. Both Tony Natoli and Helen Natoli deny this allegation, and dispute that this was their intention.
9. On the basis of its assertions, Teen also asserts that there are further terms to be implied into the Agreement, namely that once the arrears under the lease had been paid, the Lease and the business would be transferred to Teen. I will refer to these at the Implied Terms.
10. I will now deal in turn with the evidence relating to each of the Agreement, the Oral Agreement and the Implied Terms.

1. The Agreement is 3 pages long, comprising 26 clauses, without headings. As I have noted above, clause 1 describes the Agreement as:

an agreement for exclusive management consultancy services ... for the duration of the lease from 4 April 2018 to 19 August 2027.

services for retail and wholesale activities including but not limited to advertising (including social media), market research, procurement, purchasing and pricing of product and other goods and services, financial operations, cash flow management, sales and distribution strategy (including online), staff training, customer services, public relations and community involvement ("the services").

This Agreement is confidential and subject to non-disclosure of information by the parties.

The confidential information not to be disclosed under this Agreement ("Confidential Information") can be described as and includes:

Technical and business information relating to proprietary ideas, patentable ideas and/or trade secrets, existing and/or contemplated products and services, research and development, production, costs, profit and margin information, finances and financial projections, customers, suppliers, marketing, and current or future business plans and models, regardless of whether such information is designated as "Confidential Information" at the time of its disclosure.

[The Companies] agree not to disclose the Confidential Information obtained from [Teen] to any third party.

[The Companies] shall use the Confidential Information only for the purpose of evaluating potential business and investment relationships with [Teen] and agree to expand their existing businesses or open any further greengrocer business in Melbourne only with [Teen].

[The Companies] agree to rebrand their business as "Fattoria di Natoli". The brand name remains in the ownership of [Teen] and cannot be used or changed without prior written consent of [Teen].

[The Companies] agree that the acquisition of any goods or services from any new supplier of the business from the date of this Agreement are exclusive to this business with [Teen] and cannot be engaged for any other purpose.

[A&H Natoli Pty Ltd] is and remains the leaseholder at the premises and the owner of the equipment situated at the premises and vehicles (truck, van and forklift) which are used at the premises or for the business' purposes.

Natoli must maintain the lease and must not do anything that would cause a breach of the lease, and is responsible for the payment of the rent and outgoings for the premises under the lease and will be reimbursed by [Teen] for these expenses from the proceeds of the business (including service of vehicles (the truck, van and forklift) used to run the business at the premises).

[Tony Natoli] is engaged in the business by [Teen] from the date of this Agreement and [he] will receive payment for his engagement from the proceeds of the business.

All staff within [the Companies]' businesses will be engaged and managed by [Teen].[7]

[Teen] may invest in the [Companies]' businesses from time to time during the duration of this Agreement and as it finds fit.

[The Companies] agree to secure payment for the services provided by [Teen] or investments made in the business by [Teen] by providing security in the form of a charge over its business.

From the date of this Agreement to the end of the lease all proceeds of the [Companies] businesses will be managed and maintained by [Teen] for management dues. Payment systems at the premises will be provided and managed by [Teen] as part of the service. [Teen] will pay for the businesses' expenses, including rent and outgoings under the lease, from the proceeds of the business, but excluding the business loan with interest.

[Teen] has the exclusive right to make decisions on the purchase of any stock for the businesses. [The Companies] agree that [Teen] may change stock items, stock quantities and suppliers. [Teen] will reimburse [the Companies] for the purchase of required stock from the proceeds of the business.

All stock at the premises as of 4 April 2018 and stock purchased after the date of this Agreement is the property of [Teen].

All equipment for the business purchased by [Teen] from the date of this Agreement is the property of [Teen].

[Teen] will repay the debt to the suppliers as per the List of Debt Owed to Suppliers ("the List") from the proceeds of the businesses for as long as Natoli maintains the lease and trades from the premises. The amount as at the date of signing of this Agreement is $37,958.77. The List is attached as appendix "A" to and forms part of this Agreement and signed by Natoli's director Anthony Joseph Natoli.

The amount of debt recorded in the List is $37,958.77. [The Companies declare that they owe no further supplier debt other than the debt recorded in the List.

Business debt (Buxton Real Estate, Gorman Kelly, Knox Tax) will be paid by [Teen] from the proceeds of the business. The business loan plus interest remains the obligation of [A&H Natoli Pty Ltd.]

[The Companies] are prohibited under this Agreement to incur any further debt for the business from the date of this Agreement.

Copies of all keys to the premises and storage facilities, security system codes at the premises, computer passwords and logins and POS system codes of the businesses (sic) will be provided to [Teen] by Natoli from the day of this Agreement to the end of the lease 19 August 2027. [Teen] will maintain logins and passwords of the businesses (sic) and may change from time to time any login, code and password of the businesses (sic) for security purposes. [The Companies] will not prevent access to the premises to [Teen] and will not change any locks, passwords, logins, system and security codes without the written permission from [Teen].

[The Companies] are restrained from changing their directors, appointing any additional director, taking on a co-owner or partner or selling their businesses (sic) or giving away any company shares without the prior written permission of [Teen].

[The Companies] acknowledge that if [the Companies] breach the terms of this Agreement, ownership of [the Companies]' businesses will vest in [Teen].

Any addition or modification to this Agreement must be made in writing and signed by the parties.

WHEREFORE, the parties acknowledge that they have read and understand this Agreement and voluntarily accept the duties and obligations set forth herein.

1. Before turning to the evidence of the Oral Agreement, I note the following points about the Agreement:

1. There is no recital or other reference to Irene Spaleta having assigned to Teen her entitlement under the Oral Agreement to deferred fees. 2. There is no clause referring to a proposed transfer of the business. The Agreement provides only that the business will "vest" in Teen if the Companies are in breach of any of their obligations under the Agreement.

1. The Agreement requires the Companies to maintain the Lease and to meet their obligations under the Lease until 19 August 2027.

1. The effect of the Agreement is that the Companies forgo all income from the business in exchange for the consultancy services to be performed by Teen, "reimbursement" of the rent paid by the Companies to the landlord, and payment to Tony Natoli for his "engagement". Teen is to apply part of the income generated by the business to the supplier debt, and to maintain the balance "for management dues", presumably intended to be a reference to fees for the services provided. 2. Teen is entitled to maintain and manage the proceeds of the business "for management dues" but must pay the business expenses and repay the debt to suppliers.

1. The Companies objected to Teen's claim that the Oral Agreement was incorporated into the Agreement, on basis of the parol evidence rule. They say that the parol evidence rule prevents parties who have reduced their agreement to a final written document from later introducing other evidence, such as the content of oral discussions from earlier in the negotiation process, so as to add to or subtract from, or in any manner to vary or qualify the written contract.[8]
2. The High Court has said, on the question of the application of the so-called parol evidence rule:

the correct rule is that the existence of writing which appears to represent a written contract between the parties is no more than an evidentiary foundation for a conclusion that their agreement is wholly in writing. ... the mere production of a contractual document, however complete it may look cannot as a matter of law exclude evidence of oral terms if the party asserts that such terms were agreed. If that assertion is proved, evidence of the oral terms cannot be excluded because the court will, by definition, have found that the contractual terms are partly to be found in what was agreed orally as well as the document in question.".[9]

1. Accordingly, the Tribunal must consider the evidence before it to determine whether the Agreement is the entire agreement, as the Companies assert, or whether the agreement between the parties was partly in writing and partly oral as Teen asserts.
2. There is no documentary evidence corroborating the formation of the Oral Agreement. Helen Natoli agreed, in the hearing, that Irene Spaleta involved herself in the monitoring of the performance of the Companies' business during 2017 and early 2018. However, Helen Natoli denies that there was any agreement to pay fees. Her evidence in the hearing was that, although she asked about fees for Irene Spaleta's services, Irene Spaleta had offered to assist the Companies pro bono.
3. Irene Spaleta gave evidence in the hearing about the Oral Agreement. She said after she had negotiated a payment plan with their landlord in 2014 she had agreed to work with the Natolis without payment to review their budget and spending, and assist them to meet the payment plan with the landlord. She agreed that she declined to provide further assistance in early 2016, and said that this was because she felt the Natolis were not taking her advice.
4. Irene Spaleta agreed that she contacted Tony Natoli around 19 or 20 April 2017, and that he asked her to help negotiate with the landlord again as they had been issued with a Notice of Default.
5. In the hearing, Irene Spaleta gave the following evidence about fees: "I said to the landlord that I would charge $500 per hour in relation to the Notice and that our payment would come after the lease repayment."
6. Irene Spaleta also gave evidence that, "around 22 to 24 April", in conversation with Tony Natoli sometime before a meeting with the landlord, she told Tony Natoli that she would provide advice on issues related to personal finances at no charge, and would charge $200 per hour for other business advice. Irene Spaleta gave no explanation for her recollection that it was around this time. I note that 22 and 23 April 2017 were a Saturday and a Sunday. Irene Spaleta's oral evidence of the conversation about fees was not put to Tony Natoli in cross examination.
7. Ms Spaleta gave no evidence in the hearing of any conversations with either Tony Natoli or Helen Natoli about deferral of fees.
8. The parties agreed in the hearing that many emails and text messages passed between the Natolis and the Spaletas from April 2017 to April 2018. Those emails and text messages concerned progress in negotiations with the landlord, queries and advice about aspects of the operation of the greengrocery business, and the Natolis' monthly responses to the Spaletas' requests for financial information.
9. Helen Natoli agreed that Irene Spaleta requested, and received, regular reports about sales, turnover, expenditure, stock levels and so on. Irene Spaleta gave evidence about creating Excel spreadsheets for Helen Natoli to complete, so as to track income and expenditure of the business. It is apparent that Irene Spaleta took pains to ensure that she was fully informed on every aspect of the performance of the business. However, it appears that any advice given by Irene Spaleta for improvements to the business was not given in writing, but rather, orally, and on an ad hoc basis.
10. Nevertheless, the evidence before the Tribunal does not provide any support for the contention that there was an agreement to provide services in return for fees.
11. Bob Spaleta asks me to deduce, from the number and frequency of requests made by Helen Natoli to Irene Spaleta, that Irene Spaleta would not have provided such assistance without payment of some kind. The Tribunal cannot speculate in this way. It must make findings on the evidence before it.
12. On the evidence given in the hearing by Irene Spaleta, and by Bob Spaleta, there is no evidence before the Tribunal of the formation of an agreement in 2017, nor any evidence of agreement as to the fees, if any, that would be charged.
13. In the absence of evidence of a meeting of minds as to the consideration for services, there can be no binding contract. I find that there was no binding contract between Irene Spaleta and either Helen Natoli or the Companies in 2017.
14. I reject the assertion that the Agreement executed on 4 April 2018 was an "addendum" to any earlier binding agreement.
15. I find that the written Agreement executed on 4 April 2018, together with the associated deeds of charge and confidentiality, constitute the entire record of the agreement between the parties.

1. In accordance with clause 14 of the Agreement, Tony Natoli executed a charge over the assets of the business on 7 May 2018. Helen Natoli executed a charge over the family home on 4 April 2018 to secure payment of the fees.
2. Tony Natoli gave evidence that Bob Spaleta required him to execute the charge over the business "to keep NMF [the supplier of the EFTPOS facility] from sending us bankrupt". Tony Natoli said that Bob Spaleta asked him to leave the shop and go with Bob Spaleta to the local chemist to have Tony Natoli's signature witnessed by the pharmacist. The charge was registered on the Personal Property Securities Register on 30 May 2018. Tony Natoli received a copy of the charge on 17 May 2018 and it was then that he consulted his lawyer. There is no evidence before the Tribunal of any such demand or threat by the supplier of the EFTPOS facility.
3. Helen Natoli executed a charge over the family home on 4 April 2018 when Tony Natoli executed the Agreement. Bob Spaleta gave evidence in the hearing that the charge over the family home "was intended to secure payment of fees for work Teen might do for Helen Natoli in her personal capacity, for example, in subdivision of the family home".
4. The document containing the charge that was executed by Helen Natoli is expressed to be an agreement between Helen Natoli on the one part, and Irene Spaleta, Bob Spaleta and Teen of the other part. Irene Spaleta, Bob Spaleta and Teen are referred to in the agreement as "the Service Providers".
5. The agreement recites, under the heading "Background" that "the Service Providers provide services and advance money to" Helen Natoli, Natoli and Organic Oz, and that Helen Natoli "agrees to pay for the services within 14 days of written notice by the Service Providers". The agreement also recites that the charge is given over "her property in Hughesdale [address omitted]" "to properly secure the payment for the services."
6. Under the heading "Operative parts" Helen Natoli "acknowledges the provision of the services and she agrees to pay for the services." Helen Natoli also "agrees that a request for payment from the Service Providers constitutes prima facie evidence that the services have been provided and/or money advance and the fee not paid."
7. Clause 3 of the agreement, under the heading "Charge" states

Mrs Natoli hereby charges in favour of the Service Providers with the payment of the moneys owing to the Services Providers for money advanced and services provided, all her right title and interest in the Hughesdale and any other land in Victoria in which Mrs Natoli has any interest in fee simple and consents to the Service Providers at their expense lodging a caveat or caveats for the purpose of securing the charge hereby granted." (emphasis added)

1. I note that there is no provision in the Agreement that contemplates such a charge being executed by Helen Natoli. Helen Natoli is not a party to the Agreement.

1. Bob Spaleta and Irene Spaleta gave evidence that the purpose of the Agreement was to put in place an arrangement that would enable the business and the associated retail lease to be transferred to Teen once the arrears of rent had been caught up. Bob Spaleta asserted that the Natolis wished to sell the business to him and Irene Spaleta and that the arrangement under the Agreement would enable the Natolis to spend more time with their children and other pursuits that interested them.
2. Tony Natoli, and Helen Natoli, both conceded that they had had their accountants prepare a Statement under s 52 of the Estate Agents Act in April 2017, but strongly denied that they intended to surrender control of their business, or to sell the business to Teen or to Bob Spaleta or to Irene Spaleta.
3. Teen's Amended Points of Counterclaim in C5571/2018 seek orders that the business conducted by the Companies and the Lease be transferred to Teen, orders preventing the Companies from competing with Teen "within 3 kilometres and 3 years", and orders that Council Environmental Health Officers carry out a "pre-transfer inspection of premises".
4. Bob Spaleta conceded that there were no discussions with the Natolis about terms to such effect. Rather, the order is said to be sought to give business efficacy to the Agreement.
5. The law in relation to such orders is well established.[10] The conditions necessary to ground the implication of a term are:

(ii) it must be necessary to give business efficacy to the contact, so that no term will be implied if the contract is effective without it;

(iii) it must be so obvious that "it goes without saying";

(v) it must not contradict any express term of the contract.

1. The Agreement is expressed as an agreement to provide services. Terms for transfer of business ownership, and terms relating to competition in time and space are not generally "obvious" inclusions in agreements to provide services.
2. Although Bob Spaleta gave evidence that it had always been Teen's intention to arrive at a transfer of the business from the Companies to Teen, there is no indication of this in the Agreement, and, for the reasons I give in these Reasons, I am not satisfied on the balance of probabilities that there was agreement between the parties on this objective.
3. In the absence of clear evidence that the parties intended the Agreement to effect transfer of the business from the Companies to Teen, it would not be reasonable and equitable to imply such terms into the Agreement.

1. I note that the Agreement is significantly balanced in Teen's favour. For example,

1. It requires the Companies to surrender all control of the business to Teen, including branding, and employees, giving Teen control over all decisions relating to stock acquisition, and control over access to the premises, computer and Point of Sale systems and security codes. In relation to employees, the terms of the Agreement may amount to a "transmission of business" for employment purposes. 2. The Companies are to receive none of the revenue of the business, other than "reimbursement" of rent and outgoings, with no undertaking as to timing of such reimbursement.

1. The Agreement has no details regarding the "engagement" of Tony Natoli, and includes no commitment as to the amount and basis on which Tony Natoli was to be "engaged" and paid, for example, whether as contractor or employee.

1. The Companies are not compensated for the value of the stock on hand at the date of commencement. 2. Although Teen undertakes in clause 19 to "repay the debt to suppliers", Teen does not take over that debt, and neither of the Companies is relieved of that debt by the terms of this agreement. The debts remain those of the Companies; Teen's commitment to make repayments has no timelines. There is no obligation on Teen to ensure that the business or the Companies are not placed at risk of insolvency by Teen's conduct. There is no provision for the Companies to terminate the Agreement if their interests should be compromised. 3. The Companies are required to provide security in the form of a charge over the business "to secure payment for the services provided by Teen" despite Teen being entitled to retain all proceeds of the business as "management dues", from which it will pay expenses and outgoings, other than the "business loan".
2. In contrast, the risk to Teen was largely in its own hands, depending, as it did, on the work its agents, Bob Spaleta and Irene Spaleta might do to improve the performance of the business, and thereby increase the pool of money available to be retained by Teen. Further, payment for the services provided by Teen was secured by the charge over the business, and breach by the Companies resulted in the business "vesting" in Teen.

1. I turn now to the Companies' claim that the Agreement contains "unfair terms" within the meaning of the ACL.
2. Part 2-3 of the ACL,[11] deals with unfair contract terms. Section 23 of the ACL provides that a term of a consumer contract or small business contract is void if the contract is a standard form contract and a term in the contract is unfair. The provisions relating to unfair contract terms thus apply only to consumer contracts and small business contracts that are in the form of a standard form contract.

Is the Agreement a "consumer contract" or "small business contract" within the meaning of s23 of the ACL?

1. A "consumer contract" is defined in s 23(3) of the ACL as

to an individual whose acquisition of the goods, services or interest is wholly or predominantly for personal, domestic or household use or consumption.

1. Regardless or whether the proper characterisation of the agreement is as the supply of services by Teen to the Companies, or the sale or grant of an interest in land by the Companies to Teen, such supply was not to an individual, for personal, domestic, or household use or consumption. Accordingly, the arrangement between the Companies and Teen was not a "consumer contract within the meaning of s 23(3) of the ACL.
2. A "small business contract" is defined in s 23(4) of the ACL as arising if

(a) the contract is for a supply of goods or services, or a sale or grant of an interest in land; and

(b) at the time the contact is entered into, at least one party to the contract is a business that employs fewer than 20 persons; and

(i) the upfront price payable under the contract does not exceed $300,000;

(ii) the contract has a duration of more than 12 months and the upfront price payable under the contract does not exceed $1,000,000.

1. The Companies say that the Agreement is a small business contract on the basis that it is a contract for the supply of services, the Companies each employed fewer than 20 people at the time the contract was entered into, and, there being no upfront price, the upfront price did not exceed $300,000.
2. Teen asserts that because no "price" was stipulated in the agreement, the contract is not a small business contract. I consider Teen's assertion to be misconceived.
3. The ACCC website describes the upfront price payable in the following terms:

"[It includes] any payments to be provided for the supply, sale or grant under the contract that are clearly disclosed at or before the time the contract is entered into. This includes any contingent payments which are referable to the supply, sale or grant under the contract which are disclosed at the time the contract is entered into.

Some parts of the upfront price payable will not be able to be calculated at the time the contract is entered into. For example, where a payment will be calculated as a percentage of an unknown amount (such as a commission on the sale of a property or a franchise royalty calculated as a percentage of future sales). In these circumstances, the term of the contract that includes the contingent payment is unlikely to be subject to the unfair contract term provisions (i.e. it cannot be challenged as unfair), provided it was fully disclosed at the time the contract was entered into. However, for the purposes of determining whether a contract falls under the relevant threshold ($300 000 or $1 million) to meet the definition of a 'small business contract', any amounts that cannot be calculated with certainty at the time the contract is entered are unlikely to be included in the calculation of the upfront price payable. [12] (emphasis added).

1. The ACCC website gives the following example of a franchise agreement:

A franchisee and franchisor enter into a five year franchise agreement. Under the agreement, the franchisee agrees to pay an upfront fee of $500,000 and then a monthly royalty calculated as 5 per cent of the franchisee's sales. When determining whether the upfront price payable falls under the $1 million threshold the $500,000 franchise fee will be included but the royalty payments will not. This is because future sales cannot be calculated with any certainty at the time of entry into the contract.[13]

1. Under the Agreement, whether it is characterised as a contract for services, or a contract for the grant of an interest in land, the quantum of the "fees" payable for the "services" provided by Teen was to be the net profit of the greengrocer business after deduction of rent, "engagement" of Tony Natoli, payment of the $37,000 outstanding debts, and the costs of running the business. This amount relied on both future sales, and future expenses, and could not be calculated with any certainty at the time of entry into the contract.
2. Although no amount was payable on entering into the contract, no fee is necessarily less than the thresholds set out in s23(4). The drafting of the ACL is precise in articulating exceptions and exemptions from the general rule. However, in s 23 there is no exception made in respect of contracts where nothing is paid at the start of a contract. Had Parliament intended to exclude a contract in which nothing was paid on commencement from the operation of s 23(4), it would have done so.
3. I find that the agreement is a small business contract within the meaning of the ACL.

"If a party to a proceeding alleges that a contract is a standard form contract, it is presumed to be a standard form contract unless another party to the proceeding proves otherwise."

1. The effect of this provision is to reverse the burden of proof. Accordingly, it is Teen that must prove that the contract is not a standard form contract.
2. In determining whether a contract is a standard form contract the Tribunal may take into account such matters as it thinks relevant, but must take into account the factors set out in s 27(2) of the ACL. These are:

(a) whether one of the parties has all or most of the bargaining power relating to the transaction;

(b) whether the contract was prepared by one party before any discussion relating to the transaction occurred between the parties;

(c) whether another party was, in effect, required either to accept or reject the terms of the contract (other than the terms referred to in section 26(1)) in the form in which they were presented;

(d) whether another party was given an effective opportunity to negotiate the terms of the contract that were not the terms referred to in section 26(1);

(e) whether the terms of the contract (other than the terms referred to in section 26(1)) take into account the specific characteristics of another party or the particular transaction;

(f) any other matter prescribed by the regulations.[14]

1. The onus is on Teen to prove that these circumstances do not exist.[15]
2. The Companies assert that Teen presented no evidence to rebut the presumption in s 27(1), and that the presumption has not been rebutted.

1. Helen Natoli gave evidence that the Companies were unable to make payments to suppliers, to whom debts totalling $37,958.77 were owed, and a further amount had been claimed by NBF, the supplier of accounting software.
2. In emails to Irene Spaleta, Helen Natoli repeatedly referred to Irene Spaleta having "saved her family from being on the streets" and "saving me from a nervous breakdown". It is apparent that Tony and Helen Natoli were finding it difficult to keep their heads above water in the business, and were overwhelmed by the challenge of paying the rent, creditors and suppliers on time. In contrast, Bob and Irene Spaleta had made an informed financial assessment of the Natoli's business and determined that they could, if they had complete control over the business, bring it into profit. I find that Bob and Irene Spaleta had all or most of the bargaining power relating to the transaction.
3. Teen asserted that there was no imbalance of bargaining power. I find that the financial circumstances in which the Natolis sought the assistance of the Spaletas, and the stated, unilateral, objective of Teen to obtain transfer of the business to it, are factors which make it clear that there was an imbalance of bargaining power between the parties.

1. In the hearing Bob Spaleta gave oral evidence that it was he who prepared the Agreement for Teen, and its terms were drafted specifically for the transaction between the Companies and Teen.[16] Bob Spaleta gave evidence that he drafted the Agreement on the instructions of Irene Spaleta, and that he believed her instructions reflected discussions she had with the Natolis.
2. The question of who prepared the contract bears on the balance of power between the parties. An essential requirement of an agreement is that there is a mutual agreement of the parties, sometimes referred to as a "meeting of the minds". When drafts of a contract are exchanged between the parties, with each contributing to the drafting of the clauses, it is more likely that the parties have a common understanding of the full import of the terms negotiated between them. When only one party undertakes the contract preparation, this may indicate an absence of bargaining equality. The evidence before me shows clearly that Tony Natoli and Helen Natoli did not contribute to the drafting of the Agreement.

1. Helen Natoli gave evidence that there had been several meetings on the Saturdays between herself and Irene Spaleta in the weeks before the Agreement was signed. Helen Natoli said Bob Spaleta attended only one of those meetings. Helen Natoli's recollection of the discussions was that Irene Spaleta wanted to "come on board" the greengrocer business, and that Bob Spaleta would do so also as it was "too much" for Irene Spaleta alone.
2. Bob Spaleta asserted that the Natolis were fully informed about the purpose and effect of the Agreement. Irene Spaleta's evidence did not bear this out. Although Irene Spaleta gave evidence that there were several meetings with Helen Natoli, and that they discussed various aspects of the business, Irene Spaleta's evidence of those discussions, and the matters agreed between her and Helen Natoli and Tony Natoli was surprisingly lacking in detail. She gave no evidence of what topics were discussed on what day, or of any other options considered but not adopted. Teen put no contemporaneous documentary evidence of those discussions and agreements before the Tribunal.
3. Helen Natoli said she understood Irene Spaleta to be offering to invest $37,000, which would pay off the supplier debt, and negotiate a solution to the EFTPOS software dispute. Tony Natoli gave evidence that he understood Irene Spaleta and Bob Spaleta would come into the business as partners, and that they would look after marketing and social media, things that he could not do. Tony Natoli said that he signed the Agreement believing that this was its effect.
4. Bob Spaleta asserted that several drafts of the Agreement had been discussed. However, he was only able to point to one draft of the Agreement and could not show when or if it had been provided to the Natolis.
5. Both Tony Natoli and Helen Natoli said they had not been provided with any draft of the Agreement at any time prior to the meeting when it was signed. Helen Natoli said Bob Spaleta encouraged Tony Natoli to sign the Agreement by assuring them the Agreement was exactly as discussed with Irene Spaleta.
6. On the evidence before me, I am satisfied that it is more probable than not that Irene Spaleta discussed aspects of the proposed Agreement with Helen Natoli. However, on the evidence before me I am unable to be satisfied on a balance of probabilities that those discussions were in the nature of a negotiation. I find that it is more probable than not that the Companies were asked to accept the terms of the contract in the form in which they were presented on 4 April 2017. I find, on the balance of probabilities that the Companies were not given an effective opportunity to negotiate the terms of the contract.
7. Nevertheless, I am not satisfied that the Agreement was a standard form contract in the sense contemplated by s 27(2)(e). The Agreement was prepared by Bob Spaleta specifically for the transaction.
8. Bob Spaleta asserted that there must be repetition for there to be a finding that a contract was a standard contract. I note that Miller's Australian Competition and Consumer Law Annotated states "It is to be expected that, in order to be a standard form contract, repetition is required.[17] The implication to be drawn from this is that a one-off contract cannot be a standard form contract. I anticipate that there may be circumstances where the first use of a standard form contract may be found to be in breach of Part 2-3 of the ACL, however, a bespoke contract is plainly not a standard form contract.
9. Accordingly, Part 2-3 of the ACL has no application to the Agreement.

1. The Companies claim that Teen has behaved unconscionably.
2. Section 20 of the ACL provides

(1) A person must not, in trade or commerce, engage in conduct that is unconscionable, within the meaning of the unwritten law from time to time.

(2) This section does not apply to conduct that is prohibited by section 21.[18]

1. Section 21 of the ACL provides

A person must not, in trade or commerce, in connection with

(a)the supply or possible supply of goods or services to a person (other than a listed public company); or

(b)the acquisition or possible acquisition of goods or services from a person (other than a listed public company);

engage in conduct that is, in all the circumstances, unconscionable.

1. Section 22 of the ACL sets out the matters which the Tribunal may have regard to in determining whether a supplier has contravened s 21 in connection with the supply or possible supply of goods or services. Those factors are very similar to the factors set out in s 27(2), discussed above. Relevantly, they include:

(a) the relative strengths of the bargaining positions of the supplier and the customer;

(b) whether, as a result of conduct engaged in by the supplier, the customer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the supplier;

(c)whether the customer was able to understand any documents relating to the supply or possible supply of the goods or services;

(d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against the customer by the supplier;

(e) the amount for which, and the circumstances under which, the customer could have acquired identical or equivalent goods or services from a person other than the supplier;

(j) if there is a contract between the supplier and the customer for the supply of the goods or services:

(i) the extent to which the supplier was willing to negotiate the terms and conditions of the contract with the customer;

(iii) the conduct of the supplier and the customer in complying with the terms and conditions of the contract; and

(iv) any conduct that the supplier or the customer engaged in, in connection with their commercial relationship after they entered into the contract; and

(k) without limiting paragraph (j), whether the supplier has a contractual right to vary unilaterally a term or condition of a contract between the supplier and the customer for the supply of the goods or services; and

(l) the extent to which the supplier and the customer acted in good faith.

1. The Agreement between the Companies and Teen was expressed to be a contract for the supply of services by Teen to the Companies. It therefore comes within the scope of s 21 of the ACL.
2. I consider that the evidence before me shows that there was unconscionable conduct within the meaning of s 21 of the ACL. As I have discussed above, the evidence shows that the Companies were in a weaker bargaining position in relation to Teen. The Companies were experiencing financial difficulties, and, through the trust that Bob Spaleta and Irene Spaleta had built up with Tony Natoli and Helen Natoli, Bob Spaleta and Irene Spaleta gained a highly detailed insight into the Companies' financial performance. The Companies had no involvement in the drafting of the Agreement, and no opportunity was given to the Natolis to obtain legal advice before executing the documents placed before them.
3. The Companies were required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of Teen. Clause 14 of the Agreement required the Companies to grant a charge over the assets of the business "to secure payment for the services provided by Teen or investments ... made by Teen". This is despite the significant protection given to Teen by Clause 15 which entitled it to retain all proceeds of the business. Further, Teen required Helen Natoli to grant a charge over the family home, where this was not contemplated by the Agreement. Clause 25, under which the business "vested" in Teen in the event of any breach by the Companies, was a further condition that was not reasonably necessary for the protection of the legitimate interests of Teen. I note that Bob Spaleta submitted that this term was necessary to enable Teen to retain the benefit of its investment of time and energy in the business. However, the contract provided for the proceeds of the business to be retained as consideration to Teen for the performance of its services. This was the measure of fees payable to Teen under the contract. There was no entitlement under the contract to other fees in the event that the balance of the proceeds of the business was nil.
4. These were conditions imposed on the Companies that were not reasonably necessary for the protection of Teen's legitimate interests.
5. Both Helen Natoli and Tony Natoli gave evidence that they did not understand the effect of the terms of the Agreement, albeit that each conceded that they did not make a great effort to try to read and understand those terms. It is well established that a signed contract is binding on the parties, whether they have read it or not.[19] The only exception to that general rule is where there has been misrepresentation or mistake.[20]
6. The evidence given by Bob Spaleta in the hearing was that Teen's objective of the Agreement was to facilitate transfer of the business to Teen. Tony Natoli and Helen Natoli denied that this had been their intention or understanding. The Agreement does not record this objective. On the contrary, the Agreement is described as being for "services" such as advertising, procurement, sales and distribution strategy. Tony Natoli and Helen Natoli say they believed that Irene Spaleta and Bob Spaleta were "coming on board" to help improve the performance of the business. Representation of the Agreement as being for "services" rather than for transfer of the business, is in my view, both a misrepresentation within the meaning of s 18 of the ACL, and conduct that amounts to unfair tactics within the meaning of s 27(2) of the ACL.
7. Further evidence of undue influence or pressure was given by Tony Natoli when he recounted that Bob Spaleta insisted that the charge over the business assets was necessary "to avoid NBF filing for bankruptcy", yet there was no evidence that such proceedings had been proposed by NBF. Bob Spaleta did not dispute Tony Natoli's evidence. Such conduct is evidence of duress being applied in the performance of the contract.
8. The evidence shows that the contract prepared by Bob Spaleta was presented to Tony Natoli and Helen Natoli without an opportunity to negotiate amendments or to obtain legal advice. As I have noted above, the terms of the Agreement are significantly in Teen's favour.
9. The Companies claim that Bob Spaleta and Irene Spaleta misrepresented themselves as persons having expertise in marketing and social media, and with skills in turning around a failing business. The Companies point to the absence of webpages, personal resumes, or other achievements to substantiate the representations as to skills and experience of either Bob Spaleta or Irene Spaleta in these fields. Tony Natoli, as Director of the Companies, and Helen Natoli claim that they executed the Agreement in the belief that Bob Spaleta and Irene Spaleta had such expertise.
10. I find that the evidence before me clearly supports a finding of unconscionable conduct contrary to s 22 of the ACL.

What is the consequence of the finding of unconscionable conduct?

1. A person who has suffered loss or damage because of unconscionable conduct may recover the loss or damage arising from that unconscionable conduct.[21] The Companies have not claimed damages in this proceeding.
2. Additionally, the Tribunal has powers, under s 184 of the Australian Consumer Law and Fair Trading Act 2010 (ACLFTA) that include the power to declare a term of a contract to be void, to order refund of any money paid under a contract or void contract, to make an order in the nature of an order for specific performance of a contract, and to order rescission or rectification of a contract. The Companies seek orders declaring the Agreement to be void.
3. I consider that the effect of the unconscionable conduct I have referred to above rendered the Agreement between the Companies and Teen voidable, but not void. Accordingly, the Agreement was capable of being brought to an end by the Companies, but was not void ab initio. The Companies had to make an election whether to affirm or terminate the Agreement, and termination required express action by the Companies. The Companies' letter dated 18 May 2018 notifying Teen that the Agreement was terminated was such express action. It follows from this that the Companies' conduct, in purporting to terminate the Agreement was effective.
4. As I have found that the Agreement has been terminated, the remedy of specific performance sought by Teen is not appropriate. However, for completeness I note that specific performance is a discretionary remedy,[22] and is not generally ordered in relation to contracts to the performance of services.[23] Further, unconscionable conduct is generally a bar to the grant of specific performance.[24] It would not have been appropriate to order specific performance in the circumstances of this proceeding.
5. Teen has claimed damages for termination of the Agreement in the sum of $25,111.68 being calculated as $570.72 per day for 44 days from the date of execution of the Agreement to the date of termination. The terms of the Agreement do not specify the amount of "management dues" or when these were to be payable. I note that clause 15 states only that "all proceeds of the [business] will be managed and maintained [by Teen] for management dues". The rate of $570.72 per day is said, by Bob Spaleta, to be the "management dues" due to Teen under the Agreement. The amount claimed has been calculated by reference to historical data in Teen's possession for the period 1 July 2016 to 30 June 2017. Data relating to the performance of the business in the 2016/2017 year is of limited relevance to the period 4 April 2018 to 18 May 2018. Bob Spaleta says he does not have access to the data for the relevant period.
6. As I have noted above, Clause 19 required Teen to repay the debt to the suppliers as per the List of Debt Owed to Suppliers ("the List") from the proceeds of the businesses. I am satisfied that this was a primary objective of the Agreement. Accordingly, payment of the debt owed to suppliers necessarily must have priority over any entitlement Teen may have to "management dues". I find that the combined effect of clauses 15 and 19 is that Teen had an obligation to meet the supplier debt before it could be entitled to retain to itself any proceeds of the business as "management dues".
7. There is no evidence before me as to whether the supplier debt, or any of it, had been paid at the date of termination of the Agreement. If it had not been paid off at all, no payment would be due to Teen under the Agreement for the period 4 April 2018 to 18 May 2018. I will make orders for the Companies to give evidence on the status of the supplier debts at the date of termination.
8. I referred at the beginning of these reasons to the "freezing order" made by the Tribunal on 8 June 2018. That order prohibited Teen from dealing with the proceeds received by Teen, in accordance with clause 15 of the Agreement, from the conduct of the Companies' business. The freezing order also required Teen to provide details of the bank account in which those proceeds were held. Teen has provided details of that bank account in paragraph 35 of the affidavit of Bob Spaleta dated 14 June 2018.
9. As I have found that the Agreement has been properly terminated, if Teen has no entitlement to damages, Teen must be directed to return the proceeds of the business to the Companies. I will make an order directing Teen to give a detailed account of the receipt of all funds held by Teen in that bank account and the disbursement of those funds from 4 April 2018. The proceedings will be listed for further Directions Hearing to hear submissions on the orders that should be made.
10. I will order that:

1. The Tribunal declares that the Agreement between the parties dated 4 April 2018 was properly terminated by the Companies on 18 May 2018. 2. The Tribunal declares that the deed of charge dated 7 April 2018 executed by the Companies in favour of Teen is of no force or effect.

1. The Tribunal declares that the deed of charge dated 4 April 2018 executed by Helen Natoli in favour of Irene Spaleta, Bob Spaleta and Teen is of no force or effect.

1. Teen's claim for specific performance of the Agreement dated 4 April 2018 is dismissed. 2. Teen's claim for damages is dismissed. 3. By 10 September 2019, Teen must file with the Tribunal and serve on the other parties an affidavit setting out a detailed account of the receipt and disbursement of all funds held by Teen in bank account 063145 10457168 from 4 April 2018 to the date of the affidavit. 4. By 17 September 2019, the Companies must file with the Tribunal an affidavit in relation to the payment of the debts comprising the supplier debts set out in the Attachment to the Agreement. 5. Costs will be reserved.

[1]Tony Natoli gave evidence in the hearing that although the Agreement was purportedly executed by Ms Posaric, when Bob Spaleta and Tony Natoli attended the local chemist for Tony Natoli's signature to be witnessed, Bob Spaleta asked the chemist to "witness" Ms Posaric's signature by reference to Ms Posaric's passport. The notation of the pharmacist on the Agreement accords with this evidence, which was not contradicted by Bob Spaleta. Ms Posaric was not called to give evidence. It is, therefore, open to doubt whether the Agreement was properly executed by Teen.

[2] Exhibit BK3 to the Affidavit sworn by Bill Karvela on 7 June 2018.

[3] Particulars of Claim filed by the Companies dated 13 June 2018.

[4] Although the Particulars of Claim referred only to one "deed of charge" it is apparent that this was a typographical error and both deeds were intended.

[5] Summarised from Teen's Further Points of Claim dated 29 October 2018.

[6] Neither Bob Spaleta nor Irene Spaleta were directors of the company at the time of its first registration. Irene Spaleta appears to have become the sole director of Teen some time prior to 21 August 2018.

[7] This did not occur. Teen was therefore in breach of this term at the date of termination by the Companies.

[8] Goss v Lord Nugent [1833] EngR 618; (1833) 110 ER 713, cited in Codelfa Construction Pty Ltd v Sate Rail Authority of New South Wales (1982) 149 CLR 337 at [457].

[9] State Rail Authority of New South Wales v Heath Outdoor Pty Ltd (1986) 7 NSWLR 170 at 192, per McHugh J.

[10] BP Refinery Pty Ltd v Hastings Shire Council (1977) 52 ALJR 20 at 26; referred with approval in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales etc.

[11] Sections 23 to 28.

[12] https://www.accc.gov.au/business/business-rights-protections/unfair-contract-terms/unfair-contract-terms-faqs.

[14] No other matters have been prescribed by the regulations.

[15] Australian Competition and Consumer Commission v ACN 117 372 915 Pty Limited (in liq) (formerly Advanced Medical Institute Pty Limited) [2015] FCA 368 at [946].

[16] Given that Teen was not formed until 30 March 2018, the drafting was, presumably, in anticipation of the formation of Teen.

[17] See, for example, 18th edition [27.20].

[18] Section 21 of the ACL is concerned with unconscionable conduct in trade and commerce relating to the supply or acquisition of good or services. Unlike the unwritten law, s 21 extends to systems of conduct and patterns of behaviour (s21(4)(b) and is not limited to the circumstances surrounding the formation of the contract (s21(4)(c)) but may include consideration of the terms of the contract and the manner in which the contract was carried out. The principles which inform whether conduct is unconscionable are common to both sections 20 and 21.

[19] Toll (FCGT) Pty Ltd v Alphapharm Pty Ltd & ors [2004] HCA 52; (2004) 219 ClR 165.

[20] Curtis v Chemical Dry Cleaning [1951] 1 KB 805.

[22] Lamare v Dixon (1873) LR 6 HL 414 at 423; Dowsett v Reid [1912] HCA 75; (1912) 15 CLR 695 at 705-706; Gurney v Gurney (No 2) [1967] NZLR 922 at 927.

[23] JC Williamson Ltd v Lukey [1931] HCA 15; (1931) 45 CLR 282 at 298 per Dixon J.

[24] Magnacrete Ltd v Douglas-Hill (1988) 48 SASR 565.