Determining if the Contract is Unfair

1 min read

The first B2B standard terms contract test case goes to Court

Since 2010 consumers have been able to challenge certain unfair contracts in the Courts.

In November 2016 that right was effectively extended to small businesses where that business had less than 20 employees and the upfront payment was $300000 or less or $1,000,000 if payable over 12 months.


Under the new laws introduced last year a term in a standard form contract will be unfair if it is excessive , favours one party unreasonably , not necessary to protect the legitimate interests of the party seeking to impose it and would cause a detriment to the other party . In such cases the court could avoid the unfair term so that it became unenforceable


For some time now the ACCC has been proactive in this space . Earlier this year it organised meetings with some large business enterprises such as Uber Fairfax Lendlease and Sensis which resulted in these businesses changing terms in their standard forms which may have been unfair.

In addition the ACCC had announced that it was going to zero in on unfair contracts as part of its compliance strategy this year


Early in September the ACCC commenced action against the waste management entity JJ Richard and Sons Pty Ltd ( the company ) in the Federal Court alleging that at least 8 terms in their contracts were unfair and should be declared void


Those terms include for example :


Allowing the company to unilaterally vary the prices it charges


Continuing to charge customers for services after the contract has been suspended or terminated


Giving the company an overarching and unlimited indemnity in any circumstance


These are just 3 of a number of terms which the ACCC has promised to target with others including automatic contract renewal and liquidated damages on the radar


Although the federal court is yet to determine this test case it would be wise for all businesses but particularly those larger enterprises to consider reviewing their contract terms to ensure they are fair or risk the possibility of an action by the ACCC or other party in the courts


If you have not had your standard terms contract reviewed then this is the time to contact David or Reuben at PBL to do so

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Authored By
PBLTeam

Director Lawyer, PBL Law Group

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Anita Bradley has been an absolute dream to deal with. Anita's conveyancing skills and knowledge knows absolutely no boundaries along with her effective communication skills which has made selling and buying a completely stress free exchange for us. We recommend PBL Law to everyone looking for outstanding service. We will definitely be returning clients.
Kushlan Aluwihare
PBL Law Group were fantastic. Anita from PBL worked with us closely during our property search and made the exchange and settlement process smooth and stress free. Highly recommended.
Gail Whitford
PBL handled my late mothers estate, they were very obliging and patient with any and all questions that we had, thank you to David , Sharon and the other staff that we dealt with, everyone was so easy to talk to and friendly .David came to the home where my Mother was living and helped her to get her will in order, Sharon helped us through the process of executing her wishes when the time came even doing a house call which was so much easier, thank you all so much
S M
I have experienced an excellent service from PBL (especially from Anita) during the sale of my recent property on Central Coast, and during the purchase of our current property in Sydney. Throughout many challengers, especially with the sale, Anita presented her very professional and knowledgeable conveyancer, positively solving all obstacles. "Above and Beyond" Award going to Anita!!! :-)
Amanda Reitzin
The five-star reviews are well-deserved. I needed a motion and a bylaw drawn up for urgent repairs of my strata unit and the AGM was in two weeks' time. My solicitor was friendly, efficient, knew what documents to ask for, and had all the paperwork prepared well within the timeframe. She also took the time to run through all the legalese and the different possible scenarios with me to make sure I understood. I am so glad to have found this firm and I will not hesitate to use their services again in future if the need arises.
Ricky Cooper
Anita is amazing! So attentive, approachable and communicates everything every step of the way. I have now bought and sold property with Anita and I cannot recommend her highly enough.
Ron Thomsen
Our Commercial Property conveyancing was handled very professionally. Anita’s experience and responsiveness was an asset in this transaction.
Trace M
I am so grateful for Anita Bradley from PBL Law Group helped me with this property settlement, she has went above beyond to ensure I understand everything because of our deafness. I will recommended Anita or their team. Thank you so much for all the hard work you have done for us.
Tricia Wheatstone
For almost 18 months I have been a client of Alex Ilkin. Alex is very knowledgeable and professional and has consistently provided me with thorough, honest and well set out advice, including steering my case through appeal proceedings. He always worked for my best interests with integrity and compassion. I recommend Alex and his team at PBL.