Case Study: Unfair Contract Terms

UNFAIR CONTRACT TERMS

The client enrolled in a training course which cost a total cost of $X. The client paid $Y as a deposit and two fortnightly payments. Soon after, the client lost their job.

As the training course had not yet commenced, the client told the training provider that they wished to withdraw from it, as they could no longer afford it. The training provider refused to allow the client to withdraw from the course without penalty, saying that it was too late as the client had missed the 5-day refund window. They asked the client to pay the cancellation fee of $Z, which was the balance of the total cost ($X – $Y). $Z was a substantial sum which the client could not afford.

CCLSWA advocated for the client, arguing that the terms relating to the refund period and cancellation fee were unfair contract terms, as defined in the Australian Consumer Law.

Following complaints to the Department of Commerce (WA) and the Australian Competition and Consumer Commission (ACCC), the training provider finally agreed to refund the $Y plus the two instalment amounts to the client and also release them from the contract.

The ACCC later investigated the terms of the training provider’s standard student enrolment contract. Following that, the training provider amended the terms to extend the 5-day refund period to a 7-day period.

CAR DEALERS

An elderly client bought a car for a relative from a car dealer. All of the client’s dealings were oral, with nothing put in writing. The client paid a deposit of $X and then later wrote a cheque to the dealership for $Y, the balance amount. The client did not realise that it was in fact illegal for a dealer to sell a car without a written contract.

The client later decided not to proceed with the purchase, as the relationship soured due to a few exchanges.

CCLSWA advocated for the client on the basis that under the Motor Vehicle Dealer’s Act 1973, a contract is not enforceable until it is signed by both parties and a copy of the contract has been given to the buyer.

CCLSWA’s advocacy resulted in the client receiving a full refund of the purchase price.

HOME LOANS AND BROKERS

An elderly unsophisticated client who was dependent on government benefits struggled to make repayments on their home loan. The client decided to sell their family home to downgrade. The client then saw a newspaper advertisement about help with finance, so they contacted a mortgage broker.

The broker advised the client to apply for a re-finance with a new lender. The broker signed the client up for a total loan in excess of several hundreds of thousands of dollars. On advice, the client signed a blank application for finance and left the broker to fill in the details.

The client later discovered that the loan repayments for the loans were even higher than the original home loan that the broker advised them to re-finance. As the client could not afford the repayments on the new loan, they were forced to sell the family home. This resulted in the client owing a substantial shortfall debt to the new lender.

CCLSWA advocated for the client and succeeded in helping the client with the shortfall debt.

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Michael Duncan