Key Points:
By arguing an unfair contract is also false or
misleading conduct, ACCC hopes to get a pecuniary penalty - which
can be as high as $1.1m per breach.
Businesses with standard form clauses in their contracts should
take note that the ACCC is likely to pursue unfair contracts cases
under the false or misleading conduct provisions of the Australian
Consumer Law (ACL).
Why does this matter? The ACL does not permit the ACCC to seek
pecuniary penalties under the unfair contracts provisions. The
false and deceptive conduct provisions of the ACL, on the other
hand, allow pecuniary penalties of up to $1.1 million per breach to
be sought from the Court.
The ACCC has had two recent successes: first in the Chrisco
Hampers case1, and now in the recent Exetel case.
Although the Exetel case was resolved without litigation, the ACCC
again considered that a standard unilateral variation clause in a
standard fixed term residential broadband agreement was not only
