Consumers who purchase defective goods or are deceived or treated unfairly in the course of a commercial transaction may have a claim under the Australian Consumer Law (“the ACL”), the principal consumer protection law in Australia. Our Sydney Consumer Lawyers will enforce your rights under the ACL including a system of statutory consumer guarantees together with core consumer protection provisions prohibiting:

• misleading or deceptive conduct (Section 18 of the ACL),
• unconscionable conduct, and
• unfair terms in standard form consumer contracts.

Set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth) (previously known as the Trade Practices Act 1974), the ACL is a single, national law, which applies in the same way nationally and in each State and Territory.

Our Australian Consumer Law claims services

If you believe that a business has breached its obligations to you under the ACL, we recommend that you contact our Consumer Lawyers – Sydney – to discuss the matter. Our Australian Consumer Law claims services include:

• preliminary advice and case appraisal,
• letters of demand,
• negotiation and mediation, and
• proceedings in NSW courts and the NSW Civil and Administrative Tribunal.

A court may declare a term ‘unfair’ if:

• it would cause a significant imbalance in the parties’ rights and obligations arising under the contract,
• it is not reasonably necessary to protect the legitimate interests of the party that would be advantaged by the term, and
• it would cause detriment to a party if it was relied on.

An example of an unfair contract term is one that allows a business to cancel a contract at will, without it being reasonably necessary to protect the business’s legitimate interests or, for example, in response to an inconsequential breach of contract by the consumer. Such a term may be considered unfair by a court or tribunal and in breach of the ACL.

A term that imposes a penalty on a consumer for terminating a contract because the business has not complied with its obligations under the contract is likely to be considered unfair. An example of this may be where a business is unable to supply a product ordered by a consumer by the date specified in the contract, but also refuses to refund any money paid by the consumer if they attempt to terminate the contract due to the non–delivery.

Chapter 5 of the ACL provides a range of remedies for consumers including:

• Declarations: the ACL provides that a court or tribunal may make a declaration that a term in a standard form consumer contract is unfair.
• Injunctions: an affected person may seek an injunction to stop a business from engaging in conduct in breach of the ACL, or to require the business to do certain things.
• Damages: if a contravention of the ACL causes loss or damage to a person, they can apply to recover damages in that amount.
• Compensatory orders: people affected by a breach of the ACL can seek compensatory orders for loss or damage suffered or likely to be suffered as a result.

For consumers affected by a minor failure of a consumer guarantee, the supplier can choose between providing a repair or offering the consumer a replacement or a refund. When there is a major failure, the consumer can reject the goods and choose a refund or a replacement (Part 5–4, Division 1, Subdivision A of the ACL). A major failure with goods is when:

• a reasonable consumer would not have bought the goods if they had known about the problem,
• the goods are significantly different from the description, sample or demonstration model shown to the consumer,
• the goods are substantially unfit for their normal purpose and cannot easily be made fit, within a reasonable time,
• the goods are substantially unfit for a purpose that the consumer told the supplier about, and cannot easily be made fit within a reasonable time, or
• the goods are unsafe.

*Based on the Australian Government the Treasury data.