CHRISCO'S 'SIGNIFICANT IMBALANCE'
Written on the 16 November 2015
THE Federal Court has found that Chrisco Hampers Australia breached the Australian Consumer Law (ACL) in relation to its sale of hampers to consumers by lay-by agreement, in proceedings brought by the Australian Competition and Consumer Commission (ACCC).
The Court found that Chrisco included an unfair contract term in its 2014 lay-by agreements relating to its HeadStart Plan, which allowed Chrisco to continue to take payments by direct debit after the consumer had fully paid for their lay-by order.
Consumers were required to 'opt out' in order to avoid having further payments automatically deducted by Chrisco after their lay-by had been paid for.
In concluding that the HeadStart term was unfair, Justice Edelman considered the contract as a whole, including the transparency of the term, and concluded that the term caused a significant imbalance in the rights and obligations between Chrisco and its customers.
The Court also found that between January 2011 and December 2013, Chrisco made a false or misleading representation to consumers that they could not cancel their lay-by agreement after making their final payment, when the
ACL provides that consumers have the right to terminate a lay-by agreement at any time before delivery of the goods.
"The Court's findings send a strong message to traders that they must comply with all of their obligations under the Australian Consumer Law, including the unfair contract terms laws that are in place to protect consumers from unfair terms in standard form consumer contracts," ACCC Commissioner Sarah Court says.
"Purchasing goods by way of a lay-by agreement is a convenient way to shop for many Australian consumers, particularly in the lead up to Christmas.
"Businesses that use lay-by as a method of sale need to ensure that they are meeting their ACL obligations to their customers."
The ACCC had also alleged that Chrisco's conduct contravened the lay-by termination charge provision in the ACL, which requires suppliers to ensure lay-by termination charges are not more than their reasonable costs. The Court held that the ACCC had not proved this alleged contravention.
The matter is now to be set down for a penalty hearing on a date to be fixed. The ACCC is seeking pecuniary penalties, declarations, injunctions and costs.
The ACCC became aware of the alleged conduct following discussions with the Indigenous Consumer Assistance Network (ICAN) as part of the ACCC's Indigenous consumer protection and outreach work.