I love the holiday season! Christmas trees and lights, carols in the stores, the smell of gingerbread. I also love the business of getting ready, preparing holiday meals and spending time with family. Whilst I have not used one before, I can imagine that having a hamper delivered before Christmas, full of treats, food and festivities is one of the highlights for those who do. That’s why it was disappointing to see that one retailer was, contrary to holiday spirit, signing up their clients to an unfair consumer contract.
Christmas Hamper company, Chrisco (Chrisco Hampers Australia Ltd) was found to have breached Australian consumer law by implementing an “unfair contract term” in their lay-by contracts.
Chrisco’s lay-by contracts contained a “Headstart” term where, after customers paid the full amount for the goods, Chrisco could continue to withdraw money from the customer’s bank account as credit for prospective purchases. This term continued to apply unless the customer opted-out: if a refund were requested, the money would be returned without interest.
Despite Chrisco’s claims that this term benefitted customers as they could pay for future purchases in smaller installments, the Court found that this term was unfair as:
- Chrisco had the right to withdraw additional funds without any further obligation on their part or any extra benefit for customers. Instead, customers lost the benefit of interest they would have received, had they been able to invest that money in an interest-bearing account.
- The contract term was not transparent enough – contract terms should clearly disclose the amount that will be withdrawn, explain how the amount will be determined and make clear how a customer can opt-out and obtain a refund.
This is a timely reminder for our clients to take stock of their standard contracts. Always ensure that your consumer contracts are honest and provide the whole, clear picture about what a customer is entering into.
I have assisted numerous clients to review their existing, consumer contracts just to make sure they are fair for the customer and won’t land the retailer in hot water – you don’t want to receive the unwanted holiday gift of an expensive court penalty.