Section 23 of the Australian Consumer Law
(ACL), which is contained within Schedule 2 to the
Competition and Consumer Act 2010 (Cth) states that a term
of a consumer contract will be void if the term is unfair and the
contract is a standard form contract.
What is a Consumer Contract?
A consumer contract is a contract for a supply of goods or
services or a sale or grant of an interest in land to an individual
whose acquisition of the goods, services or interest is wholly or
predominantly for personal, domestic or household use or
A contract with a consumer for the provision of health services,
aged care services, pharmaceuticals, medical devices and/or
retirement living services would be a consumer contract.
What is a Standard Term Contract?
If a party alleges that a contract is a standard term contract,
it will be presumed to be one unless the other party proves
otherwise: ACL, section 27.
In determining whether or not a contract is a "standard
term contract", a court may take into consideration matters it
thinks relevant, including:
Whether one of the parties has all or most of the bargaining
power relating to the transaction;
Whether the contract was prepared by one party prior to
Whether the other party was required to accept or reject the
Whether a party was given an effective opportunity to negotiate
the terms of the contract; and
Whether the contract takes into account specific
characteristics of the other party.
What is Unfair?
A term in a contract will only be unfair if three tests are
satisfied: ACL, section 24(1), namely if the term:
causes a significant imbalance in the parties' rights and
obligations under the contract;
is not reasonably necessary to protect the legitimate interests
of the party advantaged by the term; and
causes financial or other detriment to a consumer if it were
What is an example of an unfair contractual term?
Section 25 of the ACL sets out examples of unfair terms,
one party (but not the other) can:
avoid or limit the performance of the contract;
terminate the contract;
penalise for a breach or termination of the contract;
vary the terms of the contract or the upfront price payable or
the services to be supplied;
renew or not renew the contract;
assign the contract to the detriment of the other without the
other's consent; or
terms that limit or has the effect of permitting:
one party's right to sue another party – this applies
to limitation of liability clauses; or
one party's vicarious liability for its agents.
Small Business Contracts
From 12 November 2016 under the Treasury
Legislation Amendment (Small Business and Unfair Contract Terms)
Act 2015, the unfair contract provisions will be extended to
small business contracts.
These will include small businesses to whom health and aged care
providers subcontract services.
What is a Small Business Contract?
A contract is a "small business contract" if:
the contract is for a supply of goods or services, or a sale or
grant of an interest in land; and
at the time the contract is entered into, at least one party to
the contract is a business than employs fewer than 20 persons
(including casual employees who are employed on a regular and
systemic basis); and
the upfront price payable under the contract does not exceed
the contract is more than 12 months and the upfront price
payable under the contract does not exceed $1 million.
The provisions do not apply to terms that:
define the subject matter of the contract, such as the product
or service to be supplied;
set the upfront price payable under the contract; or
is required or permitted by another law.
There are some contracts to which the unfair contracts
provisions do not apply including:
financial services or for financial products, including
insurance contracts, however, private health insurance contracts
constitutions of companies; and
contracts for the shipping of goods.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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This case shows how the Court applies the reasonable person test to determine if conduct is likely to mislead or deceive.
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