Unfair contract terms in Consumer Standard Form Contracts

Unfair contract terms in Consumer Standard Form Contracts
Module 4(c) Winter 2014

This presentation and Copyright therein is the property of Maureen Noonan and is prepared for the benefit of students enrolled in the Commercial Transactions course conducted by the Law Extension Committee and is available for their individual study. Any other use or reproduction, including reproduction by those students for sale without consent is prohibited.

Australian Consumer Law
Unfair Contract provisions commenced 1/7/2010. Remainder of ACL commenced 1/1/2011. ACL is Schedule 2 to CCA.

Unfair Contract Terms Long history and difficulties in defining area warranting attention. Now in ACL. See also Victorian Fair Trading Act. Other countries? UK Unfair Terms in Consumer Contracts Regulation 1999 made pursuant to European directive on Unfair Terms in Consumer Contracts 1993.

Unfair contract terms S. 23 ACL
A term of a consumer contract is void if the term is unfair and the contract is a standard form contract NOTE similarity to s. 32Y of Victorian Fair Trading Act

Unfair contract terms 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 interests is wholly or predominantly for personal domestic or household use or consumption Note this is different to definition of consumer s.2 The subjective purpose of person is what is relevant. Note that businesses excluded other than “sole traders”. See ASIC Act s. 12BF for financial products and services.

Unfair contract terms What is a standard form contract?
Not defined, and if alleged, it is presumed to be one unless proven otherwise. Expressly excluded in s. 28 are: Contract of marine salvage or towage Charter party of a ship Contract for carriage of goods by ship Constitutions of a company managed investment scheme or other kind of body

Unfair contract terms Standard form contract
Not defined, but in deciding whether a contract is a standard form one or not, court must consider (s.27): Whether 1 party has all or most of the bargaining power Whether the contract was prepared by 1 party before any discussion Whether another party was required to accept or reject the terms Whether another party was given an effective opportunity to negotiate terms Whether terms take into account specific characteristics of another party or particular transaction Any other matter prescribed by regulations NOTE similarity with 32ZDA of Victorian Fair Trading Act

Unfair contract terms What does “unfair” mean? S.24
If, it would cause significant imbalance in rights and obligations Not reasonably necessary to protect legitimate interests of party advantaged It would cause detriment (financial or otherwise) if applied or relied upon NOTE similarity to s. 32W of Victorian Fair Trading Act.

Unfair contract terms What does “unfair” mean? S.24
In determining whether unfair, a court may consider any relevant matter, but must consider The extent to which the term is transparent A term is transparent if expressed in reasonably plain language; and legible and presented clearly and readily available to any party affected by the term The contract as a whole.

Examples of unfair terms s.25
Permits one party to avoid or limit performance Permits unilateral termination Penalises one party but not another for breach or termination Permits one party but not another to vary terms Permits one party but not another to renew or not Permits one party to vary the upfront price without giving the other party the right to terminate Permits one party to unilaterally vary characteristics Permits one party to unilaterally determine breach Limits the liability of a party for its agents Permits one party to assign to detriment of other party without consent Limits one party’s right to sue another party Limits the evidence one party can adduce in proceedings on the contract Imposes the evidential burden on one party in proceedings Has an effect prescribed in regulations NOTE similarity to s. 32X of Victorian Fair Trading Act

Terms excluded s. 26 The following terms are excluded from the unfair regime To the extent that the term----- Defines the main subject matter of the contract; or Sets the upfront price payable Is a term required or expressly permitted by law

Effect of term being held unfair
There may be prohibited terms in regulations. Use of such a term will be a contravention of Act Only court can determine whether a term in a standard contract is unfair. Proceedings can be commenced in Federal Court by a party to the contract (s.250ACL) or regulator (s.250ACL) Court can order an injunction (s.80 CCA), prohibiting payment or transfer of money or other property (s.87A CCA), to provide redress to non party consumers (87AAA CCA) and such other orders as it considers appropriate (s.87CCA).

Unfair terms – FTA Victoria
While ACL Unfair terms legislation is new, similar provisions have existed in Part 2B of the Victorian Fair Trading Act since 2003. Some Victorian decisions may therefore be of assistance in understanding the application of the new ACL provisions, developing reasoning and argument and identifying unfair terms. See also Unfair Terms in Consumer Contracts Regulations 1999 (UK) pursuant to EU Directive, mentioned in AAPT with reference to some cases.

Director of Consumer Affairs Victoria v. AAPT Limited [2006] VCAT 1493
Director requested declaration and injunction re AAPT terms, since replaced and giving older contracts benefits of new terms retrospectively. Not granted because no consequence in these circumstances. However, substantial discussion of the meaning of unfair, relevance of “good faith” and history of provisions.

DCA v. Backloads.com Pty Ltd VCAT C5253/2007
Removalist Contract for household items a consumer contract because Contract was for services of a kind ordinarily acquired for personal, domestic or household use or consumption for the purposes of their ordinary personal, domestic or household use or consumption. Many unfair terms found in contract

“2(e) This agreement shall be governed by and interpreted and enforced in accordance with the laws applicable in the Australian Capital Territory. This agreement shall be deemed to have been entered into in the ACT” UNFAIR because: Contrary to fact and reality because Contract in Victoria Term has object or effect of limiting consumer’s right to sue or deterring non ACT consumers from enforcing contract- thereby creating a significant imbalance in the parties’ rights and obligations to the detriment of the consumer.

“8(b) If the information supplied is incorrect, inadequate, inaccurate or varied after a quotation has been given, the Company may at its discretion perform the work strictly as per its quotation or vary its charges in accordance with a pro-rata adjustment based on the variation in the specified quantity, volume or weight of the goods plus any variation of estimated loading and unloading times charged at the time rate.” UNFAIR (s.32W) because: Object or effect of penalising consumer by permitting company in its discretion to perform contract as originally agreed without regard to consumer desire or need to vary contract. Permits company to determine or vary or determine and vary price without right of consumer to terminate (s. 32X(f)), permits unilateral variation of characteristics of services (s. 32X(g), permits company to unilaterally determine whether contract has been breached or to interpret its meaning Term creates uncertainty for the consumer, and only the consumer-no mutuality-thereby creating a significant imbalance in parties rights and obligations.

“9(b) The Company hereby assigns its rights and the rights of any persons on behalf of whom it is acting, to collect all charges and payments from Clients to the Contractor. The Contractor agrees to issue invoices and to collect all such charges and payments directly from Clients.” UNFAIR (s.32W) because: Term has object or effect of assigning rights to an unidentified non party…and to permit that unidentified party to issue invoices and collect all charges payable by the consumer It creates uncertainty for the consumer because the “Contractor” is not a party to the removalist services contract It has the object or effect of permitting supplier to assign the contract to consumer’s detriment without consent of consumer (s. 32X(j)). Thereby creates a significant imbalance in parties’ rights and obligations to the detriment of the consumer.

“10(a) All goods of the Client, or carried on behalf of the Client, that are received by the Company shall be subject to a general lien for any monies owed by the Client or the owner of the goods to the Company or the Contractor as a result of this agreement or any previous agreement between the Company and the Client or the owner of the Goods.” UNFAIR (s.32W) because: Imposes general lien for monies owed by a non party to the contract and in respect of other contracts. Unreasonable. Imposes a broad general lien in circumstances where contract requires payment on or before pick up and in a manner seeking to overcome the common law limitations on imposition of a lien. Unreasonably excessive to protect legitimate interests of respondents. Inconsistent with 9(b) Purports to extend operation of general lien to benefit of Contractor-unidentified non-party Imposes an unreasonable burden on consumers, given effect of 8(b), 8(c) and 11(c), which create uncertainty for consumer.

“10(b) In order to exercise its rights under the aforementioned lien, the Company shall have the right to seize or retain or to defer or refuse delivery of any goods that are the subject of this lien should circumstances arise that make it reasonable to conclude that the Client is unwilling or unable to pay any due charges in the required form or at the required place or time.” UNFAIR (s.32W) because: Inconsistent with 9(b) See also 10(c)

“10(c)Where the charges of the Company remain unpaid for a minimum period of 28 days, the Company may give 28 days written notice by certified or registered mail to the last known address of the Client of intention to sell. If the amount owing is not paid within that further period the Company may open any packages, DISPOSE OF THE GOODS or SELL ALL OR ANY OF THE GOODS by auction or by private treaty at its absolute discretion. Out of any monies arising the Company may retain its charges and all charges and expenses of the detention and sale. It shall credit the surplus, if any, to the person entitled to it. Any such sale shall not prejudice or affect any other rights that the Company may have to recover any outstanding charges due or payable in respect of such service or the said detention or sale.” UNFAIR (s.32W) because: Having assigned rights to collect, terms 10(b) and (c) inconsistently purport to permit enforcement of lien. 10(b) and (c) each impose unreasonable burden on consumers given effect of 8(b), and (c), 9(b) and 11(c), which create uncertainty. No mutuality-certainty of contract only removed for consumer.

Terms 10(a), (b) and (c) each have object or effect of: Penalising consumer but not company for breach of contract (s. 32X(c)) Permitting Company to unilaterally determine whether contract has been breached or to interpret its meaning (s. 32X(b) Thereby creating significant imbalance in parties’ rights and obligations arising under the contract to the detriment of the consumer.

11(a) Movement of incorrect goods. The Client shall provide an authorised representative who will be responsible for ensuring that the correct goods are loaded. Whether or not such a representative is provided, and WHETHER OR NOT the Client provided the Company with a LIST of ITEMS to be moved, the Client shall pay all reasonable additional charges whatsoever resulting from the movement of incorrect goods or non-movement of goods that the Client intended to have moved”. Unfair (s.32W) because 11(a) penalises consumer for the movement of “incorrect goods” or non movement of goods even if consumer provides a correct list and even if the movement of the “incorrect goods” or non movement of goods is due to the fault or negligence of Company.

11(b) If there is no-one in attendance at the place for delivery of the Goods the Company shall be entitled at its discretion to leave the Goods at that place or to return at a later time until delivery is completed, storing the Goods at any convenient place in the meantime, and the Client agrees to pay any reasonable additional charges incurred thereby to the Company”. Unfair (s.32W) because 11(a) and (b) impose unreasonable burden on consumer given the effect of 8(b), (c) and 11(c), which create uncertainty for consumer. 11(b) has object or effect of permitting Company to leave goods at place for delivery even if no one there. i.e. abandoning goods. Unreasonable.

11(c) The method, route and time by which the carriage of Goods or provision of services under this contract are performed shall be at the absolute discretion of the Company.”. Unfair (s.32W) because Term has object or effect of permitting Company in absolute discretion to determine time of performance. Inconsistent with conditions implied into contract by law. Unreasonably excessive, broad, unqualified discretion going to issues at the heart of the contract. Term creates uncertainty-right to unilaterally vary time without notice to consumer-no certainty to bargain. No mutuality.

Terms 11(a), (b) and (c) each have object or effect of: Permitting company, but not consumer to limit performance (s. 32X(a)). Permitting company, but not consumer to vary terms of contract (s. 32X(d)) and Permitting Company to unilaterally vary characteristics of services to be supplied under contract (s. 32X(g)) All of these things create a significant imbalance in parties’ rights and obligations to detriment of consumer.

“14(b) The Client recognises that there are always risks involved in the movement of any Goods or the provision of services under this contract, many of which are outside the Company’s or the Client’s control. All basic quoted prices are for the provision of carriage and other services whereby the Client understands and accepts that there are such risks, accepts any financial detriment or other losses that may result from the performance or non-performance of such work and agrees that the Company shall NOT be responsible or liable for such losses. The effect of this sub-clause may be varied where the Client chooses a Transit Protection option (See Clause 15) or where it is otherwise agreed in writing.” Term is unfair (s. 32W) because: Term has the object or effect of unreasonably limiting Company liability for matters which are or were under their control. Term confers an unreasonable benefit upon Company by purporting to exempt it for failure to provide the services or failing to provide them at an appropriate standard, where such failure is attributable to routine and foreseeable factors such as its delay and other factors within it’s control. Term has object or effect of limiting consumer right to sue (s.32X(k)) Thereby creating a significant imbalance to the detriment of the consumer.

“14(c).Save as expressly provided in these conditions the Company shall not be liable to the Client for any loss or damage suffered by the Client directly or indirectly caused by: (i) any damage loss or destruction to Goods whilst in the possession of the Company whether in transit (which includes, amongst other things, any packing, handling, installation, removal, assembly or erection), or in storage or after they have been delivered or mis-delivered; (ii) a mis-delivery, delay in pickup or delivery, or non-delivery of Goods; (iii) the carriage of Goods by a route other than the shortest or usual route; (iv) any failure to collect Cash on Delivery (COD) on behalf of the Client; and this clause shall apply whether or not any such occurrence was due to any wilful, fraudulent negligent or other act or omission of the Company.” Term is unfair (s. 32W) because: Term has the object or effect of limiting liability for any loss or damage suffered Term has object or effect of limiting consumer right to sue (s.32X(k)) Thereby creating a significant imbalance to the detriment of the consumer

“14(f).The Client shall INDEMNIFY the Company against any action, claim, suit, fine or demand brought by any third party, the Client or the Contractor against the Company as a result of or in connection with any breach by the Client of any term of this contract or the occurrence of any of the events listed in this clause or clauses 10, 12,14 and this indemnity shall extend to the reasonable solicitor client costs of the Company in defending any action and in enforcing this indemnity.” Term is unfair (s. 32W) because: Term has the object or effect of requiring indemnity for loss or damage arising from the exercise of a lien over goods not owned by the consumer and charges or payments arising other than from the removalist services contract or loss or damage by wilful, fraudulent etc act or omission of Company. Term confers unreasonable benefit on Company by purporting to make consumer liable for consequences of proceedings by consumer, contractors and any third party arising out of a breach of contract by Company, even if negligence or fraud. Term imposes unreasonably excessive solicitor client costs Term has object or effect of limiting consumer right to sue (s.32X(k)) Thereby creating a significant imbalance to the detriment of the consumer

In addition to the specific unfair clauses, it was also found: Contract printed in a font too small and contrary to s. 163(3)(b). Not clearly expressed- it creates confusion, uncertainty or doubt -contrary to s. 163(3)(c) -because of references to Contractor (confers rights, assigns) who is not a party, contains a variety of terms that are inconsistent -11(c) and 14(a)-11(c) inconsistent with 32JA(1) FTA (implied condition services reasonably fit for purpose made known). It empowers the Company to abandon goods Some terms refer to incorrect references Terms likely to mislead consumers as to where they have to initiate proceedings-ACT? Uses terms contrary to fact-law of ACT.

Free v. Jetstar Airways P/L [2007] VCAT 1405
Free booked 2 tickets from Melbourne to Honolulu and return on the internet…names of herself and her sister, selected “Jet Saver” cheap fare and paid. Shortly before travel, sister unable to go. Ms Free wanted her niece to go instead. She requested change to name. Informed that was only possible if she were to pay a “change fee” of $75/person/flt plus fare difference on the date of change. Free claimed term was unfair and Jetstar engaged in unconscionable conduct.

“JETSAVER FARE RULES 2.1 Subject to availability and payment of all applicable amounts, changes can be made to your Booking as follows. Changes to the origin and destination of travel are not permitted. 2.2 Your new fare will be at least the amount of the fare you originally purchased, and may be more. At the time your Booking is changed you must pay the difference (if any) between the fare you originally purchased and the fare available on the date of the change. This will apply to all date, time and name changes. 2.3 Date, time and Passenger name changes may be made by telephoning Jetstar Telephone Reservations…A change fee* is payable for each change, for each passenger flight segment change… *Current Jetstar fees and a summary of fare types can be found at jetstar.com/faretypes.html.

Contract was “consumer contract”. Term not individually negotiated. Free could make booking on those terms or not. That part of the term requiring the fare difference was unfair –indiscriminate (whether genuine personal reason or resale), and created imbalance….and therefore void…delete “and name” from 2.2 and “or Passenger Name Change” from first column on “Fare Types”. Otherwise contract remained in effect. Note that this makes void only part of a term, and not the whole term. Jetstar explained that main reason for term was to discourage travel agents buying blocks of cheap fares and then reselling. Change fee OK to compensate for admin. No unconscionable conduct. Complaint is about terms of contract, not any relevant conduct.

DCAV v. Craig Langley P/L & Matrix Pilates and Yoga P/L [2008] VCAT 1332
In response to complaints in relation to contracts used in the fitness industry, the Director sought declarations and injunctions restraining Defendants from using certain terms in contracts. Declarations and injunctions granted. Various terms unfair Terms of contract not clearly expressed Terms created confusion

“2 (i)..If fees are not paid on the due date, you agree that we may continue to debit the nominated account with the total amount due without notice to you… (ii) In the event that you do not pay the amount payable under this Agreement within 31 calendar days of the due date expressed on the Agreement, the Club and the Billing Agent may at their discretion terminate the Membership and this Agreement. Upon such termination of this Agreement, all amounts outstanding shall become immediately due and payable without further notice of demand… (iii) I/We authorise the business to vary the amount of the payments from time to time as provided for in the business agreement. I/We authorise Ezi Debit to vary the amount of the payments upon instructions of the Business. I/We do not require Ezi Debit to notify me/s of such variations to the debit agreement.”

Terms 2(i),(ii) and (iii) unfair terms because: In situations where relevant payment or obligation to make payment is bona fide in dispute they enable gym to recover payment and deny opportunity to raise dispute or stop payment. Power to debit for “total amount due” in (ii) enables gym to debit for more than the “payment due” without notice Unilateral ability to vary amount of payments and destroy the bargain Authorises a third party Billing Agent to terminate without notice and in its unfettered discretion THEREFORE they Penalise consumer but not gym for breach Permit gym unilaterally to determine breach and to interpret meaning Permit gym to terminate but not consumer Permit unilateral variation of characteristics of services. Create significant imbalance

“You can only cancel your membership prior to the expiry of the minimum term if you become medically incapacitated, or if you relocate to an area not within 20ikm of the studio or if we make changes to the contract, which adversely affect you…..”

Term unfair because: It enables gym to avoid liability for breach that would otherwise entitle consumer to cancel or require refund It false or misleadingly represents the exclusion of a condition/warranty right or remedy elsewhere in the act It has object or effect of preventing or deterring consumer from pursuing or exercising rights Where consumer cancels agreement term enables gym to refuse to make any refund, which in some circumstances constitutes a penalty It impliedly reserves a right for the gym, but not consumer to unilaterally vary any term of the contract All of which create significant imbalance

Also various other unfair terms relating to fees and the term of the agreement. Also agreement not clearly expressed. A large number of words or phrases used which were not defined or appeared to be different terminology to mean the same thing or using the same terminology to mean different things. Variety of terms used which were ambiguous or inconsistent with other terms.

Unfair terms-Insurance Contracts
s.15 of the Insurance Contracts Act (ICA) operates to exclude operation of ACL. “(1)A contract of insurance is not capable of being made the subject of relief under: Any other Act; or a State Act; or An Act or Ordinance of a Territory. (2) Relief….means (a) the judicial review of a contract on the ground that it is harsh, oppressive, unconscionable, unjust unfair or inequitable; or (b) relief for insureds from the consequences in law of making a misrepresentation; but does not include relief in the form of compensatory damages.”

Considerable controversy over whether insurance contracts should be covered by ACL unfair provisions. Senate Economics and Legislation Committee concluded that consumers are not provided with adequate protection in insurance contracts under existing law. Insurance Industry argues the reverse-s.14ICA prevents a party from relying on a provision if to do so would be to fail to act with the “utmost good faith”. Ss. 35,37 prevent reliance on unusual and “non standard” clauses if not previously drawn to attention of insured. Ss. 21, 21A, 26, 28 include safeguards. Ss. 44, 46,47 prevent insurers from relying on certain clauses.s.53 renders void provisions that permit insurers to vary terms to the prejudice of anyone but themselves. S.54 restricts the extent to which an insurer can rely on an act or omission of insured.

Proposed amendments will be implemented See later Insurance module

Exam Q September 2012 81 year old Michael signed up to Kim’s Gym for “a little light exercise…” but found he had entered into a 3 yr contract with onerous terms. Students were expected to analyse the contract and to assess whether the provisions covering unconscionable or unfair contract terms in the ACL would have been able to assist Michael.

Unfair contract terms in Consumer Standard Form Contracts

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