Ray and Barbara Malam have become part of legal history,
winning one of the first cases to be brought under the unfair
contracts provisions of the Australian Consumer Law. The law makes
unfair terms in standard form consumer contracts void. This is a
big worry for online sellers, and the Malams have just proved
The Malams bought a glass-topped Tuscany Square dining table
from graysoline.com, an auction website. They had the table picked
up by courier, and when it arrived at their place the glass was
broken. Obviously, the courier didn't break it, that never
happens. So it must have been broken already. Anyway, that's
what the Tribunal decided had happened.
The standard terms of graysonline, which you accept by clicking
the "I accept" button after not reading the terms like we
all do, excluded all liability for the damage. The terms were 13
pages long. The Tribunal found that the terms which excluded
liability were unfair to the Malams and therefore void. It based
this on findings that the agreement was long, the structure was
confusing, there was inconsistency between some of the terms and
– critically – the terms were not reasonably
necessary to protect the interests of graysonline.
So the Malams got their money back and graysonline has a
headache, given the difficulty of proving when and where damage to
a sold item has occurred.
For any business selling to consumers online and relying on
standard "click here to accept" terms (and there's no
other way to do it, is there), the unfair contracts law is a
sleeper. If you haven't reviewed your terms to make them as
short and neat as possible and to delete the really nasty bits,
you're going to have a problem sooner or later.
We do not disclaim anything about this article. We're
quite proud of it really.
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The Sportscraft refunds and returns policy limitations went beyond consumer's rights under the Australian Consumer Law.
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