ASIC releases unfair contract term protections for small businesses

5 February 2016

On 2 February 2016, ASIC released an Information Sheet entitled Unfair contract term protections for small businesses (INFO 211) which provides guidance on new protections for small businesses against unfair contract terms (which already apply to standard form consumer contracts) and will be coming into effect from 12 November 2016.

Please click here to view the Information Sheet.

The Information Sheet provides guidance on:

  • The scope of the new protections and any exclusions (including how the law defines a standard form and small business contract);
  • Circumstances when a term of a small business contract is unfair (including practical examples);
  • Consequences of unfair contract terms;
  • What to do in circumstances where a party thinks a contract term may be unfair; and
  • ASIC's expectations of businesses between now and 12 November 2016 in relation to their small business contracts.

HDY's Regulatory Risk + Strategy team would be happy to discuss the Information Sheet with you and, if required, assist you during the transition period leading up to 12 November 2016 in reviewing your business' contracts for potential terms that may breach the new requirements

Scott Atkins

I'm unapologetically determined and fearless. I pursue excellence. Always.

Scott Atkins Partner

Scott is the Chair of our Board and an internationally renowned insolvency and restructuring lawyer. He is an inaugural Fellow and a member of the Board of INSOL International. Scott is also Vice President of the Australian Restructuring Insolvency and Turnaround Association (ARITA).

Scott is a trusted adviser to Australia's leading banks and insolvency and restructuring practitioners and has acted on some of the industry's most complex and sensitive banking and insolvency advisory and dispute resolution matters.

Prior to joining HDY, Scott practiced for 7 years as in-house counsel with Commonwealth Bank Group. He is now our Client Relationship Partner for the CBA Group. He is also the co-leader of our cross-border insolvency practice and our regulatory enforcement practice. Scott is recognised by his peers for his leading expertise in cross-border insolvency, acting on both inbound engagements in Australia and advising Australian clients on outbound engagements in the USA, UK, Cayman Islands, Hong Kong and The Netherlands, among other jurisdictions.

Scott was the Australian delegate on the Advisory Committee on Comparative Law established by the American Bankruptcy Institute as part of its Commission to Study the Reform of Chapter 11 of the US Bankruptcy Code. This resulted in a landmark report for the reform of Chapter 11.

He is a published author on insolvency and cross-border insolvency. Most recently, Scott was one of the Australian contributors to the 2015 publication 'International Contributions to the reform of Chapter 11 U.S. bankruptcy code' which is volume 2 of the European and International Insolvency Law Studies series. He also authored the Australian chapter of Avoidance of Antecedent Transactions and Cross-Border Insolvency (INSOL International). Among other publications, he is the co-author, together with Professor Rosalind Mason, of the Australian chapter of Look Chan Ho's leading text: Cross-Border Insolvency: Cases and Materials (Kluwer International).

Scott is a visiting lecturer on cross-border insolvency at the University of Sydney in its undergraduate and postgraduate law programs lead by Professor John Stumbles.

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Claudine Salameh Partner

Claudine has over 15 years' experience dealing with legal issues in the financial services sector.

She is a banking and insolvency litigator and regulatory expert. She acts for the major Australian financial institutions in matters involving customer disputes and litigation, fraud, regulatory and compliance issues, regulatory investigations, inquiries and enforcement matters, security enforcement and insolvency litigation. She also acts for insolvency practitioners in formal receiverships, voluntary administrations and liquidations.

Claudine is well known for her ability to manage risks posed by litigation and regulatory inquiries and investigations. She is particularly attuned to reputational and business risks. She is highly strategic and creative and is recognised by her clients for being able to achieve the perfect balance between legal arguments and commercial and practical outcomes.

Claudine has been instrumental in working with clients to provide insights into the field of behavioural economics, which over the past few years, has been of interest to policy makers and regulators as a tool to engage in 'choice architecture'. On a practical level, Claudine has worked closely with clients to design approaches to customer engagement that make use of behavioural insights.   

Claudine is an expert in the conduct of review and remediation programs and provided assistance to the regulator, by way of submissions and her involvement in an industry working group, on ASIC's regulatory guide on review and remediation programs.

Claudine is very familiar with ASIC's powers to obtain documents and information from financial institutions and is called upon by financial institutions to provide assistance in these matters. She has a style that is conducive to having a fruitful dialogue with both the regulator and the various stakeholders within a financial institution.

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Rebecca Laban

Delivering outstanding client service is my goal. I transform ideas into outcomes that count.

Rebecca Laban Senior Associate

Rebecca advises major financial institutions and insolvency practitioners on banking and insolvency litigation, fraud, debt recovery, security enforcement and financial regulation.

Rebecca is a banking and insolvency litigation and regulatory expert.

Rebecca's clients include banks and insolvency practitioners. Acting in both the State and Federal Courts, Rebecca has advised on, and is regularly involved in, security enforcement litigation, matters involving the Financial Ombudsman Service, fraud related matters, valuer’s negligence claims, receiverships, liquidations and general banking and insolvency related litigation. Rebecca is also involved in advising financial institutions in relation to their compliance with regulatory obligations.

Rebecca’s recent experience includes undertaking litigation on behalf of liquidators following the collapse of a well-known listed entity and its subsidiaries in relation to major voidable and uncommercial transaction claims commenced in the Supreme Court. Rebecca has also acted for an Australian bank in relation to a contested and multi-party enforcement proceeding in the Supreme Court traversing issues pertaining to fraud.

Rebecca has completed a 9 month secondment in house at an Australian bank.

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