Declarations by Supreme Court concerning unfair contract terms
71 Declarations by Supreme Court concerning unfair contract terms
An application for a declaration under section 250 of the ACL may be made only by the Secretary or, with the leave of the Supreme Court, by a party to a consumer contract that is a standard form contract.
Note.
Section 86 enables the Minister to intervene in proceedings brought before the Supreme Court under this Act.
A declaration made under section 250 of the ACL that a particular term of a consumer contract that is a standard form contract is unfair binds all parties to consumer contracts of that kind, unless the Supreme Court orders otherwise.
This section does not—
limit any other power of the Supreme Court to make declarations, or
prevent a party to a consumer contract that is a standard form contract from bringing proceedings in a court or tribunal of competent jurisdiction for relief in respect of a term of a consumer contract that is void because it is unfair.
Note.
Section 23 of the ACL provides that an unfair term in a consumer contract that is a standard form contract is void, although the contract continues to bind the parties if it is capable of operating without the unfair term. If a contract claim in relation to a consumer contract containing such an unfair term is brought before a court or tribunal (such as the Civil and Administrative Tribunal) having jurisdiction to deal with the claim, the court or tribunal will be required to treat the term as being void.
In this section, consumer contract, standard form contract and unfair have the same meanings as they have in the ACL.
This Act’s bill:Explanatory memorandum
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