TGA thorn group limited

Forensic jousting, page-9

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    Because the document relating to the Radio Rentals class action at http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2018/2018fca1219 is based on claims that the terms in the contract are unfair pursuant to the Investments Commission Act 2001 (Cth) s 12BF, it is worth reading what the Act requires for a clearly stated contractual term to be unfair.

    Relevant to the Class Action, the Act seems to state in summary that a contractual term is unfair if it is not reasonably necessary in order to protect the legitimate interests of Radio Rentals, and Radio Rentals must prove that the terms in question are reasonably necessary to protect its legitimate interests.

    12BG Meaning of unfair
    (1) A term of a contract referred to in subsection 12BF(1) is unfair if:
    .... (a) it would cause a significant imbalance in the parties’ rights and obligations arising under the contract; and
    .... (b) it is not reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term; and
    .... (c) it would cause detriment (whether financial or otherwise) to a party if it were to be applied or relied on.

    (2) In determining whether a term of a contract is unfair under subsection (1), a court may take into account such matters as it thinks relevant, but must take into account the following:
    .... (b) the extent to which the term is transparent;
    .... (c) the contract as a whole.
    [I am unsure why source document shows paragraphs 'b' and 'c', rather than 'a' and 'b']

    (
    3) A term is transparent if the term is:
    .... (a) expressed in reasonably plain language; and
    .... (b) legible; and
    .... (c) presented clearly; and
    .... (d) readily available to any party affected by the term.

    (4) For the purposes of paragraph (1)(b), a term of a contract is presumed not to be reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term, unless that party proves otherwise.
    Last edited by Pioupiou: 27/08/18
 
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