Australian Consumer Law - New penalties for unfair contract terms
From 9 November 2023, changes to the Australian Consumer Law will ban proposing, using, or relying on unfair contract terms in standard form contracts with consumers and small businesses.
Currently, a Court can only declare specific contract terms unfair and void. Still, they are not prohibited, and the Court cannot impose any penalties on businesses that include them in standard-form contracts. The changes will allow Courts to impose substantial penalties on companies and individuals with unfair terms in their standard form contracts.
The maximum financial penalties for businesses under the new unfair contract terms law are the greater:
$50,000,000;
Three times the value of the "reasonably attributable" benefit obtained from the conduct, if the Court can determine this or
If a court cannot determine the benefit, 30 per cent of adjusted turnover during the breach period.
What happens to a contract that contains an unfair term?
If a court or Tribunal finds a term unfair, it is void. The term is treated as if it never existed and cannot be enforced or relied on. If the unfair term is removed, the contract still stands.
Contract Reviews
SPASA is reviewing their entire suite of Pool Building contracts to ensure compliance and members are protected with the Australian Consumer Law. Updates will be provided to members shortly.
If you do not currently use a SPASA Pool Building Contract, you should urgently have your contract reviewed by a lawyer.
Using construction products that conform!
With the thousands of building products manufactured both in Australia and overseas, it can be difficult to know whether or not a building product or material will perform as required and will comply and/or conform with the NCC, standards and Australian laws.
With the thousands of building products manufactured both in Australia and overseas, it can be difficult to know whether or not a building product or material will perform as required and will comply and/or conform with the NCC, standards and Australian laws.
There are a range of methods and schemes that can be used to test and prove that a building product or material is genuine and will do what it is made to do.
There are six (6) different types of substantiation or evidence that can be used to verify that a product conforms and complies with the NCC:
· Certificate of Conformity by CodeMark or WaterMark
· Certificate of Accreditation from a State or Territory Accreditation authority
· Certificate from an appropriately qualified person such as an engineer
· Certificate from a product certification body accredited by JAS-ANZ
· Report registered by a registered testing authority
· Other documentary evidence
For detailed information about compliance and conformity assessment, please refer to the Australasian Procurement and Construction Council Guide to Procurement of Construction Products.