ACAT’s jurisdiction is reflected in section 16(i) of the ACT Civil and Administrative Tribunal Act 2008, which provides that an application for orders under the ACL is a type of civil dispute allowed under section 17. The ACL provides a comprehensive framework of consumer protections, which includes prohibitions on certain business conduct, and mandatory statutory guarantees for all goods and services bought by consumers. ACL Part 2-3 Unfair Contract Terms Legislative framework Chapter 2 Part 2-3 of the ACL contains the provisions regarding unfair contract terms (UCT) in consumer and small business contracts. The operative UCT provision, section 23(1) and (2), and the definition of a ‘consumer contract’ found in section 23(3) are set out below: Section 23 Unfair terms of consumer contracts and small business contracts A term of a consumer contract or small business contract is void if: the term is unfair; and the contract is a standard form contract. The contract continues to bind the parties if it is capable of operating without the unfair term. A consumer contract is a contract for: a supply of goods or services; or a sale or grant of an interest in land; to an individual whose acquisition of the goods, services or interest is wholly or predominantly for personal, domestic or household use or consumption. Section 27- what is a standard form contract? If a party to a proceeding alleges that a contract is a standard form contract, it is presumed to be a standard form contract unless another party to the proceeding proves otherwise. In determining whether a contract is a standard form contract, a court may take into account such matters as it thinks relevant, but must take into account the following: whether one of the parties has all or most of the bargaining power relating to the transaction; whether the contract was prepared by one party before any discussion relating to the transaction occurred between the parties; whether another party was, in effect, required either to accept or reject the terms of the contract (other than the terms referred to in section 26(1)) in the form in which they were presented;
What is the practical effect of striking out the no refund term? In Ferme the Court struck out the no refund term and left the rest of the contract standing. The applicants were therefore able to recover the fares they paid on the basis that amount paid was for a consideration, that is the provision of a cruise, that had wholly failed. In deciding to order a refund of the fares the Court in Ferme followed the decision of the High Court in Baltic Shipping Company v Dillon (1993) 176 CLR 344: an innocent party cannot recover that money unless there has been a total failure of consideration... If the party receives ‘substantial part of the benefit expected under the contract’ there will not be a total failure of consideration I find that in the circumstances this case, unlike Ferme, there has not been a total failure of consideration because Ms Qamaruddin paid the reservation fee in return for the reservation of the block. The respondent reserved the block as it was contractually obliged to. Accordingly, severance of the no refund term from the contract does not entitle Ms Qamaruddin to a refund of the reservation fee. Other actions under the ACL Ms Qamaruddin’s evidence and submissions about Mr Russell’s conduct on behalf of the respondent raise the ACL prohibitions on unconscionable conduct; and misleading or deceptive conduct. Liability of respondent for acts of its employees Section 139B of the Competition and Consumer Act 2010 provides in relation to the conduct of directors, employees or agents of bodies corporate: (1) ... (2) Any conduct engaged in on behalf of a body corporate: (a) by a director, employee or agent of the body corporate within the scope of the actual or apparent authority of the director, employee or agent; or (b) by any other person: