Unfair Consumer Contract Terms: No, You are Not the Exception

By Joshua Davis

The Australian Competition and Consumer Commission (ACCC) has given a fresh warning that 2017 is the year to remedy unfair contract terms and prioritise the protection of small businesses.

This announcement by the ACCC’s Deputy Chair follows the introduction of the new business-to-business (“B2B“) unfair contract terms laws in November 2016. (You can read our previous article on this topic here.)

Soon after the legislation came into effect, the ACCC released a report “Unfair terms in Small Business Contracts” which examined 46 standard form contracts across seven industries.

The ACCC subsequently began investigating businesses and has already received 48 complaints since the introduction of the new legislation.

Standard term credit applications, which are used by many of our clients, are ready candidates for examination.

If your business conditions contain unfair terms, you may be at risk of a challenge to the validity of your standard terms by a debtor, or investigation by the ACCC.

We suggest our clients and readership carefully examine their terms and conditions, to see if they contain terms that:

• enable unilateral avoidance or limitation of the terms of the contract;
• allow unilateral penalties for breach or termination of the contract; or
• enable unilateral variation of the terms of the contract.

The ACCC has made it no secret that they are investigating businesses in light of the new legislation. It pays, therefore, to be proactive and keep it simple by getting your current terms and conditions reviewed to avoid possible ACCC investigations or complaints by disruptive debtors.

If you would like advice on a related issue or simply wish to discuss a review of your trading terms, please contact Peter North (Senior Associate, Business Practice Group) or Caroline James (Lawyer, Business Practice Group) on 03 9629 9629.