Legal Insight Issue 23
25 Nov 2015
Unfair Contract Term Protections
The Australian Consumer Law ("ACL") operates to protect consumers against terms in standard form contracts which are unfair. Amendments to the ACL which take effect in November 2016 will extend these protections to small businesses.
Broadly, a small business will be covered by the new protections if it employs less than 20 people and the price of the contract is $300,000.00 or less (for a 12 months or shorter contract) or $1 million or less (for a contract over 12 months).
Certain types of contracts and contract terms are exempt.
When is a contract term unfair?
There are a number of factors to consider in determining whether a term is potentially unfair. The fairness of a term is considered in the context of the contract as a whole and is ultimately decided by a court.
The Australian Competition and Consumer Commission has suggested the following questions be asked to assist in determining whether a term is potentially unfair term.
- Does the term cause a significant imbalance between your rights and obligations and those of the business?
- Is the term reasonably necessary to protect the legitimate interests of the business?
- Would the term cause you detriment (financial or non-financial) if the business tried to enforce it?
- How transparent is the term?
The Federal Government acknowledges the significance of this change and this is why the operation of the new law has been deferred until November 2016 to allow businesses to implement any necessary changes to standard form contracts.
Business, big or small, should not to ignore this change. Remember, the effect of the legislation is that an "unfair term" is void… that's right, unenforceable and of no effect, as if it was never written in the agreement. Any business which issues standard form contracts to a consumer or small business containing harsh or one-sided contractual terms, should take steps to review, and, where appropriate, amend its contracts before November 2016.
Hugh & Associates – Lawyers can offer competitive pricing for review and amendment of standard form contracts.
Enquiries should be directed to ACL@hughlaw.com or by telephone to Robert Hugh on +61 2 9299 8220
Legal Insight Issue 22
31 Jul 2015
And just when you thought you were getting a handle on the PPSA
The Personal Property Securities Act, 2009 (Cth) ("Act") came into effect in January 2012. Yes, over 3 years ago. In its wisdom (we mean that seriously), the Government buil...
Legal Insight Issue 21
07 May 2015
Franchise Agreements declared void! Will yours stand up?
Justice Murphy of the Federal Court of Australia delivered a recent judgment in the matter of ACCC –v- South East Melbourne Cleaning (in Liquidation)  FCA 25 which found that a franchisor ("Coverall"):...
Legal Insight Issue 20
06 May 2015
Online Dispute Resolution/Cyber Settlement/Cyber Mediation
Traditional Resolution of Disputes
Many of our readers or their clients are, unfortunately, from time to time involved in commercial or other civil disputes. Whether such disputes involve small or large amounts ...
Legal Insight Issue 19
20 Jan 2015
PPSA Update - Tardy Registration has Fatal Effects
In The Creditor (Trustee) -v- Australian Gaming and Entertainment Ltd (In Liq)  FCA 1034, Pozzebon ("Creditor") argued that its security interest did not vest in the company in liquidation ("Grantor") under the Corporations Act...
Legal Insight Issue 18
18 Jun 2014
Misleading Conduct in Advertising
Product Safety Guide for Online Businesses
Proposed Changes to Franchising in Australia
The Importance of Registering on the PPSR
Failure to register security interests has drastic effects!
Legal Insight Issue 17
17 Feb 2014
Discretion of the SMSF Trustee
Commencement of NSW Motor Dealers' Unfair Contracts Regime
Voting Rights at Creditors' Meetings
Are you Ready for Privacy Law Changes?
Covert Recordings – ...
Legal Insight Issue 16
16 Nov 2013
PPSA Update - A Security Interest By Any Other Name
Federal Court Allows Liquidator's Sale
ACCC Enforcement - Recent Examples
Take-Away Food and Fitness Industries - Franchising Audits Coming Your Way
Trusts - Shams - Bankruptcy
Legal Insight Issue 15
05 Sep 2013
Amendments to the Insurance Contracts Act Pass the Senate
Former Trustee in Liquidation Entitled to Sell Trust Assets
The ACCC – A Toothy Tiger
Possession is 9/10ths of the Law!
Federal Court Orders – "Unfair Terms"...
Legal Insight Issue 14
11 Jul 2013
Enforceability of Contractual Dispute Resolution Provisions
ACCC Takes Action Alleging "Unfair Terms"
Negotiated Penalty Arrangements with ASIC/ACCC for Civil Penalty Infringements of Corporations Act, 2001/Competition and Consumer Act, 2010
Update on Franchising ...
Legal Insight Issue 13
08 Mar 2013
Federal Court decision regarding Franchising & Competition and Consumer Act
ACCC issues small business, franchising and industry codes six monthly report
Proposed new tribunal for New South Wales
2013 review of the Franchising Code of Conduct
Legal Insight Issue 12
11 Dec 2012
Retailing- Take care when advertising "sales"
Powers of Attorney- Conditions or Limitations on the Power must be strictly followed.
Court removes liquidator due to impartiality concerns
Be careful with your prediction...
Legal Insight Issue 11
22 Jun 2012
Severe Impact of Non-Compliance with "Genuine Steps Statement" Requirements
Australia Wide Business Name Register
Defects in the Personal Property Securities Act Register
Public Examinations – Examinees Granted Access to Affidavit in Support of Examination S...
Legal Insight Issue 10
30 Mar 2012
Former Employee Ordered to Pay Damages to Former Employer for Poaching Clients
ACCC 2012 Objectives and Updated Compliance and Enforcement Policy
ACCC's action regarding "unfair terms" in contracts
Amendments to the Home Building Act
Legal Insight Issue 9
19 Dec 2011
Large Australian Retailer Fined $1.25 Million For Trade Practices Act/Australian Consumer Law Breaches
ACCC – The Tiger Showing Its Teeth
A High Court Decision Confirms That Extreme Care Is Required When Drafting Documents
See Red And Stop before Making Green Claims...
Legal Insight Issue 8
21 Nov 2011
Pre-Litigation "Reasonable Steps" Delayed Further in NSW
Proceedings Against Liquidators Personally
Liquidator Successfully Seeks Assistance of English Court to Enforce Judgments
Trustee's Right of Indemnity Hard ...
Legal Insight Issue 7
04 Jul 2011
Pre-Litigation Requirements: Transitional Period
New Federal Court Rules
Insolvency Practitioners: Beware Making Representations on Fees
Employees and the Duty of Fidelity
Legal Insight Issue 6
04 Apr 2011
Liquidator to Pay Costs on an Indemnity Basis Personally
Misleading and Deceptive Conduct – "Reasonable Consumer" Test Confirmed
Amendments to the Building and Construction Industry Security of Payment Act ("ACT")
Steps you Must Take Before Commenc...
Legal Insight Issue 5
08 Nov 2010
Expert Determination Clause Binding on Parties
Examination Transcripts Cannot be used Against Others
Building Industry - Payment Claims - Setting Aside an Adjudicator's Determination
Clarification by High Court as to what Constitutes an Appealable Error of Law...
Legal Insight Issue 4
04 Oct 2010
ADR - A Prerequisite to Commencing all Federal Civil Litigation
Building and Construction Industry Payments Act - Adjudicator's Determination Set Aside
Unfair Contracts - It's Now Law!
Protect Your IP - New Free Government Service
Legal Insight Issue 3
08 Mar 2010
The Chocolates 4 U Case – not so sweet!
Legal Professional Privilege – Employees Waiving Your Privilege
Succession Law Update
Legal Insight Issue 2
09 Nov 2009
"Unfair" Contracts Amendments to Trade Practices Act
Update on Alternative Dispute Resolution and Civil Litigation
Appointment of Voluntary Administrator Amounts to a "Change in Ultimate Control"
Personal Property Securities Law