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Navigate the New Unfair Contracts Regime

As of 9 November 2023, any individual or business that proposes, uses, or relies on unfair terms in standard form contracts will be banned and incur significant penalties for each offending term under the new regime in the  Treasury Laws Amendment (More Competition, Better Prices) Act 2022 (Cth). 

What South Australian Businesses Need to Know

The new regime expands the definition of a “small business” to include businesses that employ fewer than 100 employees or have less than $10 million in annual turnover in the previous financial year. The new regime applies to all standard form contracts regardless of the value of the contract.

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Key Indicators of Unfair Terms

Here’s what qualifies a contract term as unfair:
  • Imbalance: A term that significantly tips the balance, favoring one party’s rights and obligations over the other.;
  • Unjustifiable Protective Measures: A term that, without reasonable necessity, provides protection to the interests of the advantaged party; and
  • Likelihood of Causing Detriment: A term that, if enforced, would result in financial loss, delays, or distress to any party.
Ensure Your Contracts Are Fair & Compliant

Navigate regulatory changes with confidence and utilise our contract review services, or get in touch for bespoke advice tailored to your business needs.

Examples of Unfair Contract Terms Include:

Below are simplified examples illustrating what may constitute an unfair term:
  • One-Sided Obligations: Any term that allows only one party to escape or limit their responsibilities under the contract, such as unfair warranties or payment conditions.
  • Unilateral Changes: A term allowing a party to change or terminate the contract on their own accord.
  • Automatic Renewals: Terms that auto-renew or roll over a contract without the need for re-approval.
  • Limiting Evidence: A term that restricts, or effectively restricts, the evidence a party can present in related legal proceedings.
  • Evidential Burden: Imposing the burden of proof in any legal dispute regarding the contract predominantly on one party.
  • Indemnity: Providing a broad, one-sided indemnity that predominantly benefits the business.
  • Liability Cap: Imposing a maximum limit on the amount of liability.
  • Penalties: Terms that penalise, or effectively penalise, only one party for a breach or termination of the contract.
  • Price Alteration: Allowing one party to change the agreed upfront price without providing the other party the right to end the contract.
  • Altering Goods or Services: Permitting a party to unilaterally change the characteristics of goods, services, or interest in land involved in the contract.
  • Determining Breach or Interpretation: Allowing one party sole power to decide if the contract has been broken or to interpret its meaning.
  • Vicarious Liability Limit: Limiting one party’s indirect liability, especially for its agents.
  • Contract Assignment: Enabling one party to transfer the contract to someone else, potentially harming the other party, without their consent.

Rapid Contract Review

We are offering a rapid contract review service to assess your business’ standard-form contracts to ensure compliance in preparation for the new laws coming into effect on 9 November 2023.

How we do it

1. Contact

Book online, call, email, SMS for your no-obligation free first appointment at Carrington Street.
T: 08 7001 6135
24 HR: 0420 359 833 or send an email

2. Meeting

You will meet with an experienced lawyer for a free initial appointment to discuss your matter.

3. Agreement

We send you a tailored fee proposal with a detailed ‘Scope of Work’ explaining exactly what you get for your money. If you are happy, sign the agreement and send it back to us.

4. Action

Now that we are engaged, we will get to work on your matter straight away. We will update you at each important milestone of your matter.

Fortifying Your Business, Safeguarding Your Reputation

Making your business operations seamless and ensuring your legal compliance is our mission.

Partner with us for a personalized review of your terms and conditions, establishing a robust business foundation and enduring partnerships.

  • Rich Stanley

    Co-Founder and Partner
  • Danial Esmaili, Adelaide Lawyer for Criminal Law, Commercial & Business Law, Road Traffic Offences, IP & Trademarks, Data Security & Privacy

    Danial Esmaili

    Associate

  • Ed Hewitt

    Senior Associate

  • Tina Tran

    Associate

Your Compliance is Our Commitment

Guiding All Businesses Through Essential Contract Reviews

Ensuring compliance with new legal frameworks demands a thoughtful review of your terms and conditions. As your dedicated Adelaide Commercial Lawyers, we’re here to navigate you through every clause and amendment, affirming both compliance and the shielding of your interests. We urge you to take a proactive approach to ensure compliance and the protection of your business interests. Our comprehensive assessment empowers your agreements to be fair, resilient, and compliant, as we assist to:

  1. Identify Unfair Terms: Pinpointing potentially unfair clauses with a meticulous contract analysis.
  2. Review and Redraft: Collaboratively refining your terms to be aligned with best practices and safeguarding your business and clients.
  3. Ensure compliance: Our goal is to help you achieve full compliance, mitigating the risks associated with unfair terms.

B.G.

I would like to thank Ed Hewitt of Stanley & Co. Lawyers. The moment I walked in the service that I was offered was very Professional. I was consistently kept up to date. The advice I received and the help to assist in my matter was excellent.

N.S.

Great Professional Team. Recommend contacting first for your Legal needs. I Am So Glad I found them. Rich and Danial have greatly examined our situation, have laid out everything Very methodically and professionally. We will carry on utilising their services.

A.K.

Energetic, agile and knowledgeable! - This law firm and legal advisory team is ideally placed to confidentially advise small, medium and family businesses on the most complex, sensitive and interrelated commercial/personal matters.

FAQs

Who is affected?

The reforms apply to all businesses that use standard-form agreements in dealing with consumers and other small businesses in relation to:

  • Supplying of goods or services,
  • Selling or leasing land, or
  • Supplying financial services (e.g. accountants) or financial products (e.g. insurance).

Due to these drastic changes, businesses must review their terms of trade and alter their agreements to satisfy the requirements under the new unfair contracts regime. Given the broad range of activity the new regime applies to, businesses in almost all sectors will be affected.

Who is not affected?

Certain types of contracts remain excluded from the operation of the new unfair contracts regime, these include:

Will the ACCC actually target my small business?

The ACCC has been a staunch advocate for penalties applying to unfair contract term breaches. All businesses should expect significantly increased scrutiny and avoid gambling with the future of their businesses, particularly during a period of economic uncertainty.

How can we help?

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