Legal (Contract)

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Unjust Contracts

Outlined under ACL(2011) characteriserd as being of misleading, deceotive and unconscionable conduct and consist of unfair contract terms.

• Contracts Review Act (1988): defines unjust as ‘unconscionable, harsh, oppressive’ → takes into account of age, mental capacity and wording = contractual agreements → adds further clarity to what makes an ‘unjust contract’ - considers additional factors → ensures just outcomes by ensuring transactions is of equal value.

• 2022 Federal Court case for Fujifilm Business → 38 contract terms administered with many thousands of small business → unfair following ACCC action → unfair contract terms = punished through ENF of sanctions/remedies

• ACCC (2022), Deputy Keogh explains “We took this court action… allowed this large company to leverage the significant power imbalance to impose unjustifiable terms” → courts are effective legal response → force large businesses = take accountability → by rectifying exploited power imbalances → to ensure POIR consumers to fair terms are being met

Oral Contracts

Contract is legally binding agreement made between 2 people on the basis of ‘agreement’ → contracts may be executed in multiple forms including oral.

• Phung v Phung (2019): where oral agreement between 2 brothers = ownership of residence → established that property contracts → enforced via oral contracts → through demonstration of ‘part performance’

• Law Society Journal (2026) “litigation can be expensive and take some time… particularly when you are relying purely on oral evidence” → RE (inefficiency) of proving existence of oral contract in court → lack of evidence available→ heavy reliance on affidavit and cross-examinations.

• PBL Law Group (2025) “verbal agreements can be legally binding, proving their existence and specific terms without written document can present significant challenge” → ENF of oral contracts = limited by lack of physical evidence to establish whether terms of contracts where clear/established.

Exclusion Contracts

A term incorporated into contracts that attempt to limit a party’s liability for conduct if the situation goes wrong.

• Thornton v Show Lane Parking (1971): that clear contract terms must be communicated before or at a time a contract is formed → person must be aware of existing clause (clear/reasonable notice) → POIR unfair contract terms

• “ACL (2011) s18: “businesses cannot exclude themselves from legal responsibilities” → capacity to ENF consumer law, as legislation → encourage coop/compliance for contracts = abide by law

• Micheal Bennet (2020): “obligations imposed by ACL… appear to leave no room for parties to agree to a standard of duty” → limited discretionary measures of parties → negotiate favourable contractual terms or considerations.

Guarantees/Warranties