23. Agreements made unenforceable by section 21 or 22
(2) The amount of compensation recoverable in the event that an Agreement is unenforceable is —
(a) the amount agreed by the parties; or
(b) on the application of either party, the amount determined by the Court.
(3) In considering whether to allow the Agreement to be enforced or (as the case may be) the money or property paid or transferred under the Agreement to be retained the Court must —
(a) if the case arises as a result of section 21, have regard to whether the person carrying on the Regulated Activity concerned reasonably believed that he was not contravening the General Prohibition by making the Agreement; or
(b) if the case arises as a result of section 22, have regard to whether the Provider knew that the Third Party was, in carrying on the Regulated Activity, contravening the General Prohibition.
(4) If the Court is satisfied that it is just and equitable in the circumstances of the case, it may allow —
(a) the Agreement to be enforced; or
(b) money and property paid or transferred under the Agreement to be retained.
(5) If the person against whom the Agreement is unenforceable —
(a) elects not to perform the Agreement; or
(b) as a result of this section, recovers money paid or other property transferred by him under the Agreement;
he must repay any money and return any other property received by him under the Agreement.
(6) If property transferred under the agreement has passed to a Third Party, a reference in section 21 or 22 or this section to that property is to be read as a reference to its value at the time of its transfer under the Agreement.