Navigating the Pitfalls: Understanding the Risks of 'Unfair' Contract Terms

Navigating the Pitfalls: Understanding and Mitigating Risks in Contractual Terms


In the dynamic realm of real estate transactions, agents often strive to customize contracts to meet the unique needs of their clients. However, with this customization comes the potential risk of terms being deemed "unfair," triggering legal consequences for both agents and their agencies. This article explores the implications of 'unfair' contract terms in light of recent amendments to the Australian Consumer Law (ACL).

The Evolution of the ACL:

Since its inception in 2010, the ACL has been vigilant against "unconscionable conduct" and false representations in the realm of service provision and land transactions. The landscape shifted on November 9, 2023, as the ACL expanded its reach to include amendments addressing "unfair terms" in both "consumer contracts" and "small business contracts."

Defining Consumer and Small Business Contracts:

Understanding the scope of these amendments is crucial. A "consumer contract" pertains to goods, services, or the sale or grant of an interest in land. The term "small business contract" now encompasses businesses employing fewer than 20 persons, with specific financial thresholds.

Determining Unfairness:

For a term to be deemed 'unfair,' it must cause a significant imbalance in parties' rights, lack reasonable necessity for protection, and cause detriment if applied. Transparency is key, and the ACL provides examples such as allowing one party to avoid performance, terminate, vary, or renew the contract – all scenarios where one party gains undue advantage.

Standard Form Contracts:

The ACL presumes a contract to be a "standard form contract" if the consumer alleges it as such, placing the burden of proof on the other party. Factors include the distribution of bargaining power, contract preparation, acceptance or rejection without negotiation, and consideration of specific characteristics.

Consequences of Unfair Terms:

If a term is found to be "unfair," it becomes void, but the contract may still bind the parties if it can operate without the unfair term. However, the associated risks include potential accusations of "unconscionable conduct" and penalties under the ACL, ranging up to $50 million for companies and $2.5 million for individuals.

Agents' Dilemma:

While agents may argue that tailored terms fall outside 'standard form,' the ACL evaluates fairness based on the contract's entirety. A dissatisfied party can assert unfairness even in a customized clause, emphasizing transparency, legibility, and accessibility.

Best Practices:

To mitigate risks, agents should exercise caution when including clauses favoring one party. Best practice involves obtaining clear instructions from clients, backed by legal advice, and ensuring that any 'special clauses' are transparent, conspicuous, and readily available to both parties.


In the evolving landscape of real estate transactions, agents must be vigilant about the potential pitfalls associated with 'unfair' contract terms. By understanding the ACL amendments, adhering to best practices, and prioritizing transparency, agents can navigate the legal complexities and safeguard against significant penalties.

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