unfair contract terms

Court orders variation of unfair contract terms – lessons when using unilateral variation clauses

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A recent Federal Court decision could serve as a guide when incorporating unilateral variation clauses into standard-form contracts with small business and consumers. ASIC successfully obtained orders declaring void and varying “unfair terms” in a small business loan contracts used by the “Delphi Bank” and “Rural Bank” business units of the Bendigo and Adelaide Bank (Delphi and Rural)

Unilateral variation rights

Clauses providing one party with the right to unilaterally vary the terms of their contract are common in standard form contracts with small business and consumers. This decision discusses features that render such a clause “unfair” (and so, voidable), and also provides guidance as to when a unilateral variation clause may not necessarily be “unfair”.

Unfair unilateral variation rights

In this instance, Justice Gleeson found that the unilateral variation clauses (amongst others) in these contracts were “unfair”, as they:

  • created a significant imbalance in the parties’ rights and obligations because they:
    • did not give the other party sufficient notice, having regard to the nature of the terms being varied;
    • permitted termination by Delphi and Rural if the variation was not accepted by the customer; and
  • did not provide the other party with a corresponding right;
  • would have caused detriment if relied upon, as the customer would have incurred higher fees and charges if it accepted the change;
  • were not countered by other provisions of the loan contracts which mitigated the unfairness of the unilateral variation terms; and
  • the unilateral variation clauses were not, in the case of the Rural loan document, sufficiently transparent, as they were located, in some instances, in a section of the loan document titled “Use of facility”.

“Fair” unilateral variation rights

Usefully, Justice Gleeson’s orders included variations to each of the unfair terms, including the unilateral variation clauses. Notable features of the replacement unilateral variation clauses include:

  • limitations that unilateral variation rights may only be exercised “reasonably” and “to the extent reasonably necessary to protect [Rural’s] legitimate business interests”;
  • minimum notice periods, of variable length having regard to the nature of the change and whether the change is likely to have an adverse impact on the other party (i.e. a shorter notice period is permissible where a change does not have an adverse impact on the other party’s rights); and
  • provision for the customer to terminate the contract in the event of an exercise of the unilateral variation right, without being charged “discharge fees”.

Application beyond financial products

Notwithstanding that this decision was made under the Australian Securities and Investments Commission Act 2001 (ASIC Act), which governs standard form small business contracts relating to financial products (including credit) and services, the regime applied is the same as in Chapter 2, Australian Consumer Law, Schedule 2 to the Competition and Consumer Act 2010 (ACL) – which, generally speaking, applies to the supply of goods and services.  That is to say, if a business’ activities are regulated by the ACL, Justice Gleeson’s findings would apply equally outside of the financial products context.

If your standard form contracts contain unilateral variation clauses, to reduce the likelihood of those clauses being voidable (and so, unenforceable) consider revisiting and amending  these provisions so that they more closely align with those clauses forming part of Justice Gleeson’s orders.

We’d be happy to review your standard form contracts to assess whether amendments may be advisable. Contact us for more information.

Unfair Contract Terms and Misleading Representations in the Car Rental Market

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In a recent alert, we commented on the ability of unfair contract terms legislation to change the basis upon which various industry sectors contract with their customers.

Two very recent examples involving the car hire industry illustrate this point. The instances involve Hertz Australia Pty Ltd and Europcar Australia. 

Hertz case

On 5 April 2016, the Australian Competition and Consumer Commission (ACCC) accepted a court enforceable undertaking from Hertz following its investigation into Hertz’s vehicle damage charging process.  Hertz had two main difficulties. Hertz made representations to some customers that:

  • damage to vehicles hired occurred during the customer’s period of rental, when in fact damage was pre-existing. Hertz incorrectly invoiced those customers for the damage
  • the amount charged to repair damaged vehicles was the actual repair cost to Hertz, when it was not. Hertz received repair discounts which it did not disclose nor did it rebate those discounts to customers.

As part of the enforceable undertaking, Hertz acknowledged that its conduct was likely to contravene the Australian Consumer Law relating to prohibitions on misleading or deceptive conduct and false and misleading representations. As part of the undertaking, Hertz agreed to refund affected consumers and to take other steps to address ACCC’s concerns.

Europcar case

The second decision is the Europcar case. That involved allegations of “unfair contract terms” as well as allegations of false or misleading representations.  The ACCC commenced action against Europcar in the Federal Court of Australia in 2014 seeking a series of declarations. ACCC reported in a Media Release issued on 19 April 2016 that the Federal Court had declared a number of the terms in Europcar’s 2013 standard rental agreement to be unfair and therefore void. Europcar was also ordered to pay a penalty of $100,000 for making false or misleading representations about consumers’ liability in the event of vehicle damage.  The particular offending clauses in the Europcar agreement included:

  • holding consumers liable for vehicle loss or damage regardless of whether the consumer was at fault
  • holding consumers liable for vehicle loss or damage when they breached the rental agreement no matter how trivial the breach was or whether it had any causal connection to the loss or damage caused
  • misrepresenting the extent of customers’ liability for vehicle accident damage in particular by representing that a “damage liability fee” of $3,650 was the extent of customers’ liability, when in fact it was not where there was overhead, under body or water damage to the vehicle involved.

In the words of ACCC Deputy Chair Dr Michael Schaper:

“The decision is an important one, as it makes it clear to car rental companies that they cannot simply rely on contractual terms to hold consumers liable for any and all damage that may occur during a rental period, regardless of the circumstances. Terms in standard form rental agreements must be fair.”

Europcar has amended its standard rental agreement to remove these unfair terms and changed its website (Australian Competition and Consumer Commission v CLA Trading Pty Ltd [2016] FCA 377. The likely effect of these two decisions will be that car rental companies will re-examine their standard terms and conditions of rental and excise from those terms any provisions similar in nature to the offending provisions in both the Hertz and the Europcar cases, as well as any other terms that may be considered to be unfair.

New Lending Protections for Small Business

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ASIC releases guidance on new protections for small businesses against unfair lending contract terms.

The Treasury Legislation Amendment (Small Business and Unfair Contract Terms) Act 2015 extends the protections contained in the Australian Consumer Law against unfair contract terms to small business as from 12 November 2016.

While the new protections apply to small business generally, the focus of this article is on how they will apply to, and influence, lending activities.

The Australian consumer law, contained at Schedule 2 in the Competition and Consumer Act 2010 (Cth), currently gives “consumers” protection against unfair contract terms contained in standard form loan contracts.

The new changes will extend the scope of the Australian Consumer Law to capture lending to small business (explained later) where a loan is made pursuant to a “standard form contract”. Changes have also been made to the Australian Securities and Investments Commission Act 2001 (Cth).

In February 2016 ASIC released an information sheet (INFO 211) foreshadowing the imminent changes and giving guidance on the new protections available for small business in circumstances where they borrow.

The extension of the Australian Consumer Law reflects an attempt by the Government to offer some protection to small business against unfair contract terms which unfortunately seem to be prevalent in the Australian lending market. Philosophically for the Government, this is a more acceptable way of proceeding rather than seeking to regulate lending to small business directly. Earlier proposals to regulate business lending were put on hold (abandoned?) some time ago.

What does this mean for lenders?

If a lender makes or varies a standard form loan contract involving a small business borrower as from 12 November 2016, the lender will need to make sure that the standard terms and conditions of the loan contract do not contain any provisions which might be considered to be “unfair contract terms”.

1. Application of the new legislation

The new unfair contract terms protections will apply to all standard form contracts used by lenders entered into or renewed on or after 12 November 2016. For the protections to apply at least one party to the contract must be a “small business”.

2. What contracts are covered?

The unfair contract terms legislation only applies where a “standard form” contract is involved. Most lending to small businesses involves use by lenders of “standard form” contracts. Realistically, the new provisions will apply to most transactions involving loans to small business.

3. What is a small business?

For the purposes of the Australian Consumer Law a small business is a business employing less than 20 people and where the contract is worth up to $300,000 in a single year or $1,000,000 if the contract runs for more than one year. (Refer section 23(4) of the Australian Consumer Law and section 12BF(4) of the ASIC Act.)

4. What is a standard form contract?

As ASIC points out in its information note, a standard form contract is one which has been prepared by one party to the contract and is not subject to negotiation between the parties – that is, it is offered on a “take it or leave it” basis. If a small business asserts that a contract is a standard form contract, then the contract is presumed to be so unless proved otherwise. There are various matters that can be taken into account by a court in determining whether or not a lending contract is a standard form contract and it must take the following matters into account whether:

  • One of the parties has all or most of the bargaining power relating to the transaction.
  • The contract was prepared by one party before any discussion relating to the transaction occurred between the parties.
  • Another party was, in effect required either to accept or reject the terms of the contract in the form in which they were presented.
  • Another party was given an effective opportunity to negotiate the terms of the contract.
  • The terms of the contract take into account the specific characteristics of another party or the particular transaction.

5. Who determines whether or not a term is an unfair contract term

The first step is for the allegation to be made by a small business that the contract is a standard form contract and a contract term is unfair. When that allegation is made the onus of proof then reverses and it is for the lender to demonstrate that the contract is not a standard form contract.

ASIC states in its information sheet that ultimately it is for the court to determine whether or not a contract term is unfair. While that might be correct in theory, in practice most matters do not reach the courts. ASIC, ACCC and State and Territory consumer offices all have jurisdiction in this area and have traditionally taken an active stance in this area with consumer contracts.

ASIC and other Government regulators have many weapons in their armoury to use in circumstances where unfair contract terms or practices are in play. What this means in practice is that it is not often a court is called upon in this area to adjudicate on such matters. Most outcomes are negotiated or subject to quasi-judicial procedures.

6. Not all contract terms will be covered

It is important to note that not all standard form lending terms fall within the ambit of the unfair contract terms legislation. The protections do not cover:

  • Terms that define the main subject to the contract.
  • Terms that set the upfront price payable.
  • Terms that are required or expressly permitted by law of the Commonwealth, or a State or Territory.
  • In information sheet 211, an example is given as to what is meant by the upfront price payable for a consumer contract. ASIC states
    • “the upfront price payable for a loan includes the amount borrowed (principal), the interest payable and any fees disclosed at the time the contract is entered into. It does not include contingent fees, such as fees arising from a default on the loan.”

7. Review of small business loan contracts

It is now important that lenders to small business undertake a comprehensive review of their loan and security documentation to ensure that they are not open to challenge under the unfair contract terms legislation as from November 2016. Areas which may warrant particular attention include:

  • Obligations imposed upon borrowers during the currency of the loan
  • Default provisions and how they operate
  • Fees and charges payable after default has occurred
  • Review of any right to unilaterally vary terms of the loan contract.

8. Broader implications for lenders

Small business lending relies upon lenders being able to take speedy and effective action against borrowers in circumstances where there is a default.

The freedom of lenders to small business to continue to act as they have in the past may well be limited in the future. In addition, the area of fees charged to borrowers after default has occurred has often been an area of some consternation for small business and this is an area also likely to come under scrutiny.

Lenders to small business need to treat these impending changes seriously. In the past ASIC, ACCC and the State and Territory Government, consumer authorities have not been shy in taking action and becoming involved in situations where they consider there is an unequal bargaining power situation and one party is acting in an “unfair” manner to another party. The mobile phone market is an example where involvement by consumer authorities has resulted in vastly different principles of contracting in this area.

Similar changes occurred in the fitness industry with their standard form contracts.

9. Further resources

While most of the information published to date is related to unfair contract terms insofar as they affect consumers, the principles enunciated are still relevant. In addition to ASIC Information Sheet 211, refer to A guide to the unfair contract terms – law (jointly published by relevant Government authorities).

Proposed new "unfair contract" laws

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If you contract with small businesses here are some things you need to know about proposed new unfair contract laws.

What is changing?

The Government has released an exposure draft of a bill will amend the Competition and Consumer Act 2010 (CCA) to extend the existing consumer unfair contract terms protections to small businesses.

Although some CCA protections already extend to business-to-business transactions (e.g. protections against unconscionable conduct and false or misleading claims), currently the unfair contract term protections are only available to consumers (not businesses).

Why is this important?

If the bill is passed, you’ll need to review the standard form contracts you use to contract with small businesses, for example, e.g. standard Terms & Conditions (T&Cs) for the supply of goods/services.

If your standard form contracts contain “unfair” terms, there’s a risk those terms could be declared void by a court (so you can’t rely on them).

What is a “small business”?

The bill defines a small business as one with a headcount of fewer than 20 employees (only employees who work on a regular or systematic basis are counted).

Is there a monetary threshold?

Yes, the law will only apply (even if the other party is a small business) if the upfront price payable under the contract is less than $100k (or $250k if the contract goes for more than one year).

For example, the law would not apply to a six-month contract with a small business (ie fewer than 20 employees) where the upfront price is $150k.

The “upfront price” means the price for the transaction which is disclosed at/before the contract, not amounts which are linked to future events (e.g. interest payments).

What is a “standard form” contract?

The law only applies to “standard form” contracts. Your contract will be presumed to be a standard form contract unless you prove otherwise. There’s no specific definition, but relevant factors include:

  • Did you prepare the contract before you began discussions with the other party?
  • Is it a “one size fits all” contract (possibly standard T&Cs on your website), which wasn’t amended/adapted for the specific transaction?

If the answer to these questions is “yes”, it’s likely the contract is a standard form contract.

What is an “unfair” term?

Practical examples of potentially “unfair” terms include terms which:

  • Seek to stop the other party from claiming against you where you are in the wrong (eg a broad release/indemnity which purports to make you immune from claims for breach of contract, negligence etc.).
  • Allow you to terminate without cause (ie “termination for convenience”).
  • Allow you to terminate for only a minor breach which has no bearing on the other party’s performance of its obligations.
  • Give you the discretion to extend the contract, without giving the other party reasonable notice.
  • Provide for an “automatic rollover” into an extended term.
  • Impose harsh penalties which aren’t linked to your actual loss (eg excessive liquidated damages or interest rates for non-payment).
  • Give you discretion to decide whether or not the other party has met its obligations (eg a term which provides that completion of a specific deliverable occurs only when you say so).

The risk of a court finding that a particular term is “unfair” is increased if you have significantly more bargaining power than the small business.

You should be particularly cautious if you effectively refuse to transact with the small business unless they sign up to your standard form contract / T&Cs.

Of course, you should also make sure your standard contracts are in plain English and are clearly disclosed to (and accepted by) the other party (it’s always risky to rely on contracts which are hidden on a website or buried in “fine print”).

Which contracts are affected?

When the bill is passed (and after a six month transition period), it will apply to new small business contracts, existing small business contracts which are renewed and terms in existing small business contracts which are varied.

Timing

The new laws would commence in early/mid 2016.

What do you need to do?

Once the bill is passed, you could face practical difficulties because small businesses may seek to challenge terms in your standard form contracts on the basis that they are unfair. Ultimately, if a court finds that a term is unfair, it would be legally unenforceable.

With this in mind, you should:

  • Assess whether you use standard form contracts (eg T&Cs) to contract with small businesses.
  • Review your standard form contracts. Do they contain potentially unfair terms? Have you relied on such terms in the past? Where it is important to your business that a potentially unfair term is enforceable, you need to adopt strategies to increase the chances of this occurring.
  • Assess whether you supply both small and medium-large business. The new laws would only apply to your standard form contracts with small businesses, so you may wish to have two different sets of T&Cs (or one set that applies differently to different sized businesses).
  • Assess your procedures for obtaining acceptance of your standard form (you won’t be able to rely on your T&Cs at all, even if they are fair, if the other party hasn’t accepted them).

Many businesses will not address this issue until a dispute brings it to a head. At that stage, it would be too late to make changes to improve your chances of enforcing the relevant term.

Proposed Changes to Unfair Contract Term Laws and How They Impact Customs Brokers/Forwarders

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The Federal Government recently announced that laws protecting consumers against unfair contract terms will be extended to provide protection to the small business sector. This raises a number of issues for customs brokers and freight forwarders, particularly in respect to exclusions of liability, situations where carriage of goods can be avoided and penalties for breaching the contract.

What’s the issue?

Many businesses operate on the basis that their customers accept a standard form contract, that is, a contract that is not negotiated and presented on a take it or leave it basis. These contracts are commonly one-sided. Often terms may be included excluding any liability for negligence, allowing the supplier to take payment but avoid supplying the services or allows the supplier to unilaterally change contract terms, including the price for services.

Where consumers enter into these contracts, provisions exist allowing a Court to declare a term unfair and make it unlawful for the supplier to reply on that term. Following a review, the Federal Government has announced that the unfair contract provisions will be extended to protect small businesses.

What is the impact for brokers and forwarders?

You supply small businesses

Almost all brokers/forwarders will supply services to small businesses through the use of a standard set of terms and conditions. This contract is likely to be covered by the new law in situations where you have most of the bargaining power and your T&Cs are offered on a “take it or leave it basis”.

A term in those standard T&Cs will be potentially unenforceable against a small business customer where it is considered unfair. Terms will be considered unfair where they:

  1. cause a significant imbalance in the parties rights and obligations
  2. are not reasonably necessary to protect the interests of the advantaged party and
  3. would cause detriment to the small business if relied on.

Examples may be a clause that requires the small business to indemnify the broker/ forwarder even where the loss was caused by the negligence of the broker/forward or a clause that enables the broker/forwarder to amend the terms of the contract without the consent of the small business.

You are a small business

If you are a small business you may be subject to unfair contract terms in standard form contracts that may in the future be unenforceable. Standard form contracts are often used by energy providers and telecommunication companies.

It is not clear yet whether supplies by small businesses will be covered. For example, if you supply clearance services to a listed company and it provides the standard form contract, will you be able to avoid unfair contract terms within that contract? The current consumer provisions only apply to acquisitions by the consumer.

Exclusion of shipping contracts

The current unfair contract provisions applying to consumers do not apply to shipping contracts. This may be reviewed as part of a broader review of the Australian competition and consumer law. However, if this exception remains, it is important for brokers/forwarders to consider whether their terms and conditions should have separate provisions that apply to shipping contracts only (not covered by the law) and other provisions which apply to customs clearance, storage, land transport and advisory services.

Issues to be determined

The recent announcement leaves many questions unanswered. Most importantly, what is a small business for the purpose of this law? Will it be based on staff numbers (15 or less?), annual turnover ($2 million or less?) or the size of an individual transaction ($40,000 or less?).

Will the provisions apply to contracts where a small business is supplying a large business? For example, where a small business supplies one of the large supermarket chains and must accept their terms and conditions. The current consumer provisions naturally only apply to acquisitions by the consumer.

Will the provisions apply to supplies by one small business to another small business? It may be thought that in this scenario there is not an imbalance of bargaining positions and legislative protection is not needed. If the provisions do extend to such transactions it may cover situations where a freight forwarder engages a broker to perform services.

Impact on the industry

Standard form T&Cs are common in the customs and transport industry. Most often these T&Cs are one-sided and reflect pricing that is based on zero liability. It also reflects the reality that often some part of the services will be performed by third parties who will also expect zero liability.

Such limitations on liability have allowed extremely competitive pricing. If the ability to fully exclude liability is removed, but pricing pressures remain, the industry will be placed under even greater pressure.

The introduction of the consumer provisions ultimately saw an improvement in standard form consumer contracts. Clearer language was used, and unfair terms that were not necessary for the protection of the service provider were often removed. There will undoubtedly be some brokers/forwarders who adopt this approach and others who prefer to keep their T&Cs as is and rely on them until a Court says otherwise.

This proposed change is yet another significant reason why such a review of your terms and conditions is important.

ACCC Crackdown on Unfair Terms Following Review of Standard Form Contracts

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Following a review of standard form consumer contracts in the airline, telecommunications, fitness and vehicle rental industries, as well some used by online traders and travel agents, the Australian Competition and Consumer Commission (ACCC) recently released their findings in its report “Unfair contract terms – industry review outcomes”.

The review was conducted in the context of the national unfair contract terms laws, introduced as part of the Australian Consumer Law which came into effect on 1 July 2010. Under these laws, a court may determine that a term of a standard form consumer contract is unfair and therefore void. However, it is important to note that these laws have not yet been tested in the courts.

In most cases, businesses amended or deleted terms identified by the ACCC as ‘operating unfairly’, were terms that:

  1. allow the business to change the contract without consent from the consumer
  2. cause confusion about agency arrangements and seek to unfairly absolve the agent from liability
  3. unfairly restrict the consumer’s right to terminate the contract
  4. terms that suspend or terminate services being provided to the consumer under the contract
  5. make the consumer liable for things ordinarily outside of their control
  6. prevent the consumer from relying on representations made by the business or its agents
  7. seek to limit consumer guarantee rights and
  8. remove a consumer’s credit card chargeback rights when buying the service through an agent.

The ACCC is considering whether further actions are warranted against businesses that did not change their standard form contracts to address problematic terms, with the possibility of court action. ACCC Chairman Rod Sims said the report marks the end of the compliance emphasis and the transition to a more enforcement focused approach dealing with unfair contract terms.

Hunt & Hunt can assist businesses undertake a comprehensive review of their standard form consumer contracts to ensure that the contractual arrangements in place with their customers are consistent with the new national unfair contract provisions.