The issue

The Australian Consumer Law operates to void 'unfair' contract terms in certain types of contracts between businesses and consumers. This regime applies to consumer contracts which are:

in a standard form;
for the supply of goods, services, or an interest in land;
to an individual; and
for personal, domestic or household use.

The Australian Competition and Consumer Commission has been fairly lenient while businesses adjust to the new regime. However, the ACCC has recently indicated that it will now be taking a more forceful approach to ensure compliance by businesses.

When is a contract term considered unfair?

A contract term is unfair if:

it creates a significant imbalance in each parties' rights and obligations;
it is not reasonably necessary to protect the legitimate interests of the party who is advantaged by the term; and
it would cause detriment if it were to be applied or relied upon.

It is also relevant whether the particular term is expressed in clear, easy to understand language, and was readily available to the consumer.

An example of where a term was found to be unfair is the recent NSW case of Malam v Graysonline [2012] NSWCTTT 197, which was heard in the Consumer, Trader and Tenancy Tribunal. In this case, the consumer had clicked 'yes' to agree to terms and conditions for an online purchase. One such term purported to remove the purchaser's rights to return the goods, even if they were damaged prior to collection. In finding that this term was unfair, the tribunal also considered it relevant that this term was buried within a thirteen page online document.

Other examples of unfair terms, provided in legislation and case law, include:

terms that penalise one party for a breach of contract, but not the other party,
terms that unreasonably limit one party's liability for matters within their control, or
terms that allow one party to unilaterally terminate or vary the terms of the contract.

Terms found to be unfair are void and unenforceable, although the remainder of the contract can be valid.

Practical Tip

Any standard form contracts currently used by your business should be examined, bearing in mind the criteria for unfairness as above. In particular, consider:

do any terms create an unreasonable imbalance in the rights and responsibilities of each party?
is the wording clear and transparent?
are important terms buried by the volume of the document?

Often, there is a fine balance to be struck between legitimately protecting your business interests and unreasonably preventing consumers from receiving a fair deal.

If you have any queries regarding your business contracts or trading terms, please feel free to call Mitchell Zadow on 1300 205 506 .

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Written by a member of our Legal Team

For further information contact

Mitchell Zadow

Mitchell is the Managing Principal of our law practice.

He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate. For further information, contact Mitchell on his direct line (03) 8561 3318.

Repudiation and Termination of a Contract

Changes to Unfair Contract Laws – Be Prepared!

Debt Collection

However, in this article we will set out the factors that influence how long it will take to obtain a Grant of Probate and to administer an estate in Victoria.

The basics

First things first: what is a Grant of Probate? A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will. Without Probate, the asset holders (say a bank or share registry) cannot be satisfied as who has the correct authority to receive the deceased's assets and may refuse to pay out.

Sometimes, for smaller estates or if assets are mostly jointly owned with a surviving spouse, asset holders might agree to release payment without requiring a Grant of Probate. This is usually on the basis that the person who receives payment promises to repay (or Indemnify) the asset holder if it turns out they paid to the wrong person.

If there is no Will, then you cannot obtain a Grant of Probate. Instead you obtain Letters of Administration. This is effectively the same, in terms of authorising someone to administer the estate, and would usually be obtained by the person who is the closest next-of-kin to the deceased.

“A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will.”

Timeframes for Probate in Victoria

In order to obtain a Grant of Probate, the Supreme Court needs to be given information about the assets and liabilities of the estate, the deceased person, the witnesses to the Will, the executors and the Will itself. An advertisement of your intention to apply for Probate must also be published on the Supreme Court website for at least 14 days prior to any application being lodged.

Often, making enquires to obtain all the necessary information can take a number of weeks. Also, you will need the Death Certificate for the application for Grant of Probate and possibly for making proper enquires regarding the assets and liabilities. Waiting for the Death Certificate to issue can therefore add a few more weeks to the process. Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.

The Court itself usually does not take long to process the application (maybe another 1 to 2 weeks) and this is completed using the electronic Supreme Court filing system. This means you do not have to go to a Court hearing. The timeframe for processing applications for Letters of Administration is even less, given that there is no Will document for the Court to consider. There is also a general discretion for the Court to raise a 'Requisition' asking for more information before they review the application - this can sometimes delay matters.

“Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.”

So, here we are a few months after death and you finally have a Grant of Probate or Letters of Administration. It is important to remember that this is the start of the estate administration and not the end. For a very simple estate, you might only need a further month or so to cash the assets and pay them to the correct beneficiaries. However, it can often be more complex than that. Factors that determine the timeframe to administer the estate include:-

Some assets will take time to cash or transfer. For example, if selling a property, final settlement might be 60/90/120 days from the day of sale.
There is a 6 month period for challenges to be brought against the estate and executors must wait until this period expires before distributing the estate, if there is any risk that a disgruntled family member might come forward.
There might need to be final tax returns for the deceased or for the estate. Failing to wait for the ATO to process these could leave the executor personally liable for a tax bill.

You might need to advertise for creditors to come forward and wait for a period of months while this advertising timeframe expires. This protects the executor if they are unsure of all of the deceased's financial dealings and creditors.
It might not always be a good time to immediately cash estate assets. For example, the shares just took a nose-dive, do you still sell regardless of available price?

There is a general rule that executors have an 'executor's year' to complete the estate administration. This means that you should be aiming to have the estate finalised and distributed within 12 months from the date of death.

Liability limited by a scheme approved under Professional Standards Legislation.

Need help with Probate?

Our expert legal team is ready to take your call!

Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:

DIRECT LINE:

(03) 8561 3318

Free Property Law webinar -

Land Development and Joint Ventures

Goods and Service Contracts: Can one-sided contracts result in terms being void for unfairness?

The issue

When is a contract term considered unfair?