{"id":293,"date":"2016-11-01T11:57:36","date_gmt":"2016-11-01T01:57:36","guid":{"rendered":"http:\/\/dev2.e-cbd.com\/abkj\/articles\/?p=293"},"modified":"2016-11-01T12:01:21","modified_gmt":"2016-11-01T02:01:21","slug":"protection-from-unfair-contract-terms","status":"publish","type":"post","link":"https:\/\/www.abkj.com.au\/articles\/protection-from-unfair-contract-terms\/","title":{"rendered":"Protection From Unfair Contract Terms"},"content":{"rendered":"

From Saturday 12 November 2016, unfair contract term protections will extend to \u2018small businesses\u2019 under a new law. The new law established under the Treasury Legislation Amendment (Small Business and Unfair Contract Terms) Act 2015 <\/em>(Cth) aims to protect small businesses with contracts that contain unfair terms entered into or renewed on or after 12 November 2016, or terms of existing contracts that are varied on or after this date.<\/p>\n

Why do I need to know this?<\/h3>\n

If you have a \u2018small business\u2019, the new regime will apply to your contracts that contain unfair terms (and are found to be as such). This will allow you to apply to the courts for a declaration that the unfair term be void, or protect yourself from any unfair terms in any form of commercial litigation<\/a>. Before this, the protection only extended to individuals contracting with businesses for consumer purposes.<\/p>\n

Am I protected? <\/strong>Here’s a checklist.<\/p>\n\n\n\n\n\n\n\n
Checklist<\/strong><\/td>\nYes<\/strong><\/td>\nNo<\/strong><\/td>\n<\/tr>\n
1.\u00a0\u00a0\u00a0 Do you have a small business?<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
2.\u00a0\u00a0\u00a0 Is it a small business contract?<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
3.\u00a0\u00a0\u00a0 If yes, is it a standard form contract?<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
4.\u00a0\u00a0\u00a0 Does it contain \u2018unfair terms\u2019?<\/td>\n<\/td>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n
    \n
  1. Do I have a small business<\/strong>?<\/li>\n<\/ol>\n

    A small business is legally defined as having less than 20 employees (including full time, part-time and casual) at the time the contract was entered into. Part-time and casual employees who are on a systematic basis are counted regardless of hours worked.<\/p>\n

      \n
    1. Is it a small business contract?<\/strong><\/li>\n<\/ol>\n

      A small business contract includes contracts with an up-front price that does not exceed $300,000 for contracts lasting up to 1 year or $1 million for contracts lasting more than 1 year.<\/p>\n

        \n
      1. I have a small business with a small business contract. But is my contract a standard form contract\u2019?<\/strong><\/li>\n<\/ol>\n

        A standard form contract is generally known as a \u2018take it or leave it\u2019 contract. This means that the contract was pre-prepared by one party and generally has no room for the other party to negotiate its terms. The courts<\/strong> will usually determine whether the contract is a standard form contract.<\/p>\n

        The new laws relate to standard form contracts for certain transactions, including:<\/p>\n