Unconscionable Contracts
Submission dated 9th December, 2022
Unconscionability Under The Australian Consumer Law (ACL)
The ACL deals with unconscionability under ss20 and 21. In ACCC v Get Qualified Australia Ltd (No. 2)[15] Beach J outlined the approach to be taken in order to understand the concept. He noted at para [60] that: ‘“unconscionability” means something not done in good conscience or conduct against conscience by reference to the norms of society’. The test is high. In determining whether conduct is unconscionable.
In particular the ACL contains a number of provisions that govern unfair contract terms. These provisions only apply to certain types of contracts. For present purposes the most relevant of these categories is contracts that are consumer contracts. ‘Consumer contract’ is a defined term under the ACL: the contract must be for a supply of goods or services or a sale or grant of an interest in land. The contract must also involve an individual whose acquisition of the goods, services or interest is wholly or predominantly for personal, domestic or household use or consumption. Residents of retirement villages enter into a consumer contract when they sign a service agreement or a lease over their unit.
As a newly formed association advocating for manufactured home owners throughout Victoria, we recently wrote to the ACCC regarding unconscionable contracts.
Our association has evolved out of necessity to protect older residents in manufactured home villages (MHVs) from the continuing neglect of our legislators throughout the years. It is common for rental providers to ignore complaints from residents or respond with threats and intimidation. It is also common for residents to believe that if they complain, they will be the subject of intimidation or they may be evicted.
