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From 12 November 2016 the new Commonwealth Government reforms to the Australian Consumer Law will address some existing inequalities in the bargaining position of small business vs big business in standard form contracts.
The new legislation will apply to standard form contacts where:
The new law seeks to protect small businesses from being effectively “bullied” into engaging into contracts by big business where the terms are deemed by a court to be unfair or unconscionable. The scenario that the new law seeks to address is where the small business has no opportunity to negotiate the terms of a contract and the contract is submitted to the small business by the big business on a “take it or leave it” basis which results in an unfair position for the small business.
The new law will be part of the Australian Consumer Law which is Schedule 2 to the Competition & Consumer Law (Cth). The court or NCAT (NSW Civil & Administrative Tribunal) and ASIC (in relation to financial products and services) will have the jurisdiction to hear and decide claims under this new law.
The court or NCAT will be required to judge the “fairness” of a contract by considering the three tests of fairness, namely:
A court would also examine how the term is expressed in the contract, whether it is in clear legible print or in fine print, or written in “jargon”. The court would also look at the contract as a whole and the overall position of benefits and detriments to each of the parties.
In deciding in favour of a complainant the court (or tribunal) is able to strike out the offending term. The balance of the contract will remain on foot and the parties will still be bound by the balance of the contract.