Date of this Version

3-1-2011

Document Type

Working Paper

Publication Details

Published Version.

Greenhow, A. (2011). Sharpening the blue pencil in Australian Consumer Law: The striking out of unfair contract terms in land transactions. Asian Law Institute working paper series, 021, 1-18.

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© Copyright Annette Greenhow, 2011

Abstract

In Australia, like many other jurisdictions, principles of fairness and transparency underpin modern consumer protection laws applying to traditional consumer transactions. These laws had, until recently, focused on those transactions involving the supply of goods or services for personal, domestic or household use, and in the case of the supply of goods, to personal property transactions. An overriding objective of consumer protection law is to shore up the bargaining position so that the perceived weaker party has access to greater rights of redress should the stronger party seek to exploit that weakness.

The commencement of the new Australian Consumer Law (ACL) on 1 July 2010 has introduced a single generic consumer law applying across Australia and has extended the blue pencil principle to Unfair Contract Terms (UCT) in land transactions. The ACL interferes with the contractual terms between the parties involved in a standard form consumer contract by declaring void those terms that fail to meet the ‘fairness test’, severing the unfair term from the contract.

This paper questions whether such an extension is justified in circumstances where existing protection is already provided under the common law, in equity and transparency principles integrated in real property laws supporting those ‘consumers’ involved in land transactions. It also questions whether the new UCT provisions could be open to abuse by unmeritorious parties seeking to avoid otherwise binding contractual obligations.

A comparative study is undertaken of the current consumer protection and real property laws of Singapore and whether the standard form consumer land contracts in those jurisdictions would meet the UCT ‘fairness test’ under the ACL.

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