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John Melis
John Melis,
Category: Australia Law
Satisfied Customers: 541
Experience:  Principal Lawyer at Legal AU Pty Ltd
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A friend of mine, Salvatore Burgio, was referred by an

Customer Question

A friend of mine, Salvatore Burgio, was referred by an education agent to Einstein College, Melbourne to undertake English coursework as an international student. Unfortunately it was discovered during the orientation that the college was totally unsatisfactory for his Italian background - it was poorly resourced and had no Italian interpreter services for support. Regrettfully the orientation was held the week prior to commencement of the course, however when we identified that the provider and course was unsuitable, he was rejected for a refund because their refund policy stipulates that the any application for refund must be made 14 days prior. Obviously if any prospective student discovers at orientation that the course and venue do not suit then its too bad because of the 14 day refund policy. We are talking about approx 8K so not an insignificant amount of money. I have contacted Einstein College to seek a refund on behalf of Salvatore, but are stonewalled by the Director who insists that she is merely following Company policy. In my view their policy undermines any student ability to receive a refund. I would welcome any advice.
JA: What state is this in? And just to clarify, when was the purchase made?
Customer: The was made in the State of Victoria. I dont know the specific dates but it was earlier this year. We have received an email from the College dated 13 July 2017 advising Salvatore that this application for refund has been refused.
JA: Has anything been filed or reported?
Customer: In lieu of the email I am making a formal complaint via the College's complaint form. We have attempted to contact the college previously via the immigration agent's appointed education agent but without success. I suspect that the education agent has some link with the college and possibly receives some commission for student referrals hence his lack of vigour in pursuing Salvatore's case
JA: Anything else you want the lawyer to know before I connect you?
Customer: That will do it for the time being.
Submitted: 2 months ago.
Category: Australia Law
Expert:  John Melis replied 2 months ago.

​Dear customer, my name is***** solicitor, thank you for using Just Answer, I will assist with your question today. Please allow me a few moments to review your post and I will respond accordingly.

Kind regards
John Melis

Expert:  John Melis replied 2 months ago.

Dear customer, your matter relates to contract law.

The long held rule of contract is that once the signature of a party is written on the agreement and exchange has occurred, the contract will be binding even if the party has not read the terms and conditions. However, there are limited exceptions to this rule, that would ultimately need to be argued in court.

The first matter that needs to be considered its the contract, and I recommend that the provisions of the same and reviewed carefully in relation to the termination clause.

In addition the contract may be able to be argued as one with unfair contract terms, which breaches the Australian Consumer Law. This would require careful review of the contract that was signed by a solicitor.

I can assist you if these services are required.

he Australian Consumer Law, Schedule 2, section 25 provides a guide as to what is an unfair term in a consumer contract. This guide is of course dependent on the particular circumstance of each case.

Bringing a claim of damages for an unfair contract term in a consumer contract requires three conditions to be met:

1. The contract between the parties needs to be a consumer contract.

a. Section 23 (3) of the Act defines a consumer contract as a contract for:

i. a supply of goods or services; or

ii. a sale or grant of an interest in land;

to an individual whose acquisition of the goods, services or interest is wholly or predominantly for personal, domestic or household use or consumption.

2. The contract between the parties needs to be a standard form contract:

a. A standard form contract is not defined by the act, but it may be said that it is a contract which is prepared by one party and is not subject to negotiation by the other party, or no opportunity to negotiate its terms.

b. Where there is a dispute as to whether a contract is a standard form contract, the court will take various considerations into account in its determination, and each case will be assessed on its merits.

3. There needs to be an unfair term in the contract:

a. The court in determining whether a contract term is unfair, will apply a three-limbed test for unfairness:

1. A contract term will be unfair which causes a significant imbalance with the rights and obligations of the parties under the contract.

2. A contract term will be unfair if it is not reasonably necessary to protect the legitimate interests of a party advantaged by that term.

3. A contract term will be unfair if it will cause detriment to a party if applied or relied on by the other party to the contract.

Unfair contract terms give a unilateral right to one party and no rights to the other.

The important point for the consumer is to know when an unfair contract term is included in a contract.

The following list is an extract from section 25 of the Act which provides a guide to what may be an unfair contract term in a consumer contract:

a) a term that permits, or has the effect of permitting, one party (but not another party) to avoid or limit performance of the contract;

b) a term that permits, or has the effect of permitting, one party (but not another party) to terminate the contract;

c) a term that penalises, or has the effect of penalising, one party (but not another party) for a breach or termination of the contract;

d) a term that permits, or has the effect of permitting, one party (but not another party) to vary the terms of the contract;

e) a term that permits, or has the effect of permitting, one party (but not another party) to renew or not renew the contract;

f) a term that permits, or has the effect of permitting, one party to vary the upfront price payable under the contract without the right of another party to terminate the contract;

g) a term that permits, or has the effect of permitting, one party unilaterally to vary the characteristics of the goods or services to be supplied, or the interest in land to be sold or granted, under the contract;

h) a term that permits, or has the effect of permitting, one party unilaterally to determine whether the contract has been breached or to interpret its meaning;

i) a term that limits, or has the effect of limiting, one party's vicarious liability for its agents;

j) a term that permits, or has the effect of permitting, one party to assign the contract to the detriment of another party without that other party's consent;

k) a term that limits, or has the effect of limiting, one party's right to sue another party;

l) a term that limits, or has the effect of limiting, the evidence one party can adduce in proceedings relating to the contract;

m) a term that imposes, or has the effect of imposing, the evidential burden on one party in proceedings relating to the contract;

n) a term of a kind, or a term that has an effect of a kind, prescribed by the regulations.

Every consumer as a right to be protected. However, the first step for the consumer is to know what the consumer rights are in simple form.

Kind regards *****

Expert:  John Melis replied 2 months ago.

Dear customer, if you would like to discuss this matter further, I welcome you to request telephone services.

Don’t forget to rate my service.

Kind regards

John Melis