Modification of rights under the Trade Practices Act does not amount to contracting out

Introduction

It is well known that parties cannot 'contract out' of the Trade Practices Act 1974 (Cth) ("TPA") (now known as the Competition and Consumer Act 2010 (Cth)).

However, the NSW Supreme Court recently confirmed that the TPA can be modified by agreement between parties, particularly when both parties to the agreement are commercial, sophisticated and capable of negotiating and bargaining an arrangement.

The case

In Firstmac Fiduciary Services Pty Limited & Anor v HSBC Bank of Australia Limited [2012] NSWSC 1122, the NSW Supreme Court (on an application brought by HSBC on a separate hearing) found that a time limitation clause in a sale deed meant that the plaintiffs were out of time in pursuing both contractual and misleading or deceptive conduct claims against HSBC.