28 ACL General Prohibition Unfair Term PDF

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28 ACL General Prohibition Unfair Term...

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ACL: Protecting Consumers General Prohibitions Meaning of ‘consumer’ on pg 369/TB S3, ACL A persons is a consumer if they have acquired goods or services: – of a kind ordinarily acquired for personal, domestic or household use or consumption, and – Those have not been acquired for the purpose of resupply or for use in a manufacturing process.

Unfair terms ACL s 23 A term of a contract will be unfair in contravention of ACL s 23 and therefore void if: – – –

the contract is a consumer contract; the contract is a standard form contract; and The term is unfair.

Consequences Subject of a civil action (e.g. it can be sued for compensation) but there are no criminal penalties. Remedies that can be granted by a court for contravention of the ACL include:     

ACL s 24(1) A term of a consumer contract is ‘unfair’ if: –

it causes a significant imbalance in the parties’ rights and obligations arising under the contract;

 –

it is not reasonably necessary to protect the legitimate interests of the business; and

–

It would cause detriment to the consumer.

–

Director of Consumer Affairs Victoria v AAPT Limited (2006) on pg 382/TB

See ACL s25 for examples of unfair terms pg 382/TB

 

pecuniary penalties; injunctions; an order that the defendant pay damages to any person who has suffered loss because of the contravention: a compensation order for injured persons; an order declaring a contract void, varying a contract, refusing to enforce a contract, ordering a refund, ordering compensation, ordering repair of the goods, or ordering the provision of services; non-punitive orders including orders directing the defendant to perform a community service, directing them to establish compliance and education programs for their employees, requiring them to disclose information, or requiring them to place an advertisement; an adverse publicity order; and an order disqualifying a person from managing a corporation....