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 why.
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.
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