ASIC spells out impact of new unfair contract rules for financial services providers
Contracts for business loans, credit cards and broker agreements will fall within the coverage of a new law that protects small business from unfair contracts.The fact that a contract is covered by an industry code, such as the Code of Banking Practice or the Customer Owned Banking Code, does not change that situation. The Australian Securities and Investments Commission has made this clear in guidance on the protections for small businesses that changes to the Australia Consumer Law will provide when they come into force in November.Under the new law, which extends unfair contract protections already available to consumers, a small business is one employing fewer than 20 people at the time a contract is entered into.The law covers "standard form" contracts, which means contracts that are not subject to negotiation between the parties.Protections will apply where the upfront price payable under the contract does not exceed A$300,000, or $1 million if the contract is for more than 12 months. Interest payable is excluded from the calculation of the upfront price.A contract will be deemed "unfair" if it would cause financial detriment or other detriment to a small business, if it would cause a significant imbalance in the parties' rights and obligations, or if terms in the contract are not reasonably necessary to protect the legitimate interests of the party that would benefit from their inclusion.ASIC provided some examples of small business contract terms that may raise concerns:• A finance contract contains a term under which a default would result in the borrower being liable for large fees. The term is likely to be unfair as it imposes a cost that appears to exceed the amount required to protect the lender's interests.• A fixed-term lease includes a term where, unless the business elects to purchase the goods or has made arrangements to return them, the business is automatically entered into a new lease. The business would have to pay fees to get out of the new lease. The problem here is that the term allows the lessor to automatically renew the contract without giving the business the opportunity to give consent.• A loan contract includes a term that allows the lender to vary the terms and conditions of the loan if notice is given in writing. The small business cannot terminate the contract, even if the lender increases fees significantly. Such a contract would probably have to give the business the right to cancel the contract if the terms were changed.Under the new law, courts will have the power to void contracts, vary them and direct parties to refund money.