The consumer wins in the Australian Competition and Consumer Commission (ACCC)’s first case solely based on the unfair contract terms provisions of the Australian Consumer Law (ACL) in the Federal Court.
In a recent action brought by the ACCC against ByteCard Pty. Limited [better known as NetSpeed Internet Communications] (NetSpeed), an internet service provider, the Court declared, by consent, that a number of clauses in Netspeed’s Terms and Conditions for its services were unfair contract terms and are therefore void.
The unfair contract terms in question:
- enabled NetSpeed to change prices or services provided at any time and without providing the customer with prior notice, an opportunity to negotiate varied terms or a right to terminate the contract;
- required the consumer to indemnify NetSpeed in any circumstances, even where there may have been no breach of the contract, negligence or other wrongful act by the consumer; and
- enabled NetSpeed to unilaterally terminate an existing contract at any time with or without cause or reason.
The terms were considered unfair because they:
- created significant imbalance in the parties’ rights and obligations arising under the contract;
- were not reasonably necessary to protect NetSpeed’s legitimate interests; and
- would cause detriment to a consumer, if applied or relied upon by NetSpeed.