The recent decision made by the Federal Court of Appeal in ACCC v Ashley & Martin Pty Ltd (No 2) [2019] FCA 1739 highlights the potential consequences for businesses relying on unfair contract terms. Between June 2014 and 2017, Ashley & Martin (a well known provider of hair regrowth treatments) signed up 25,000 customers to its ‘PersonalRealGrowth’ Program, relying on three iterations of standard form contracts.  The ACCC argued that the unfair terms involved: that the contract required customers to pay for all medical treatments prior to receiving medical advice, and making consumers incur a cost if they sought to withdraw from the program due to receiving adverse medical advice. The ACCC further argued that the terms of the contract prohibited the consumer from giving informed consent and were thus unfair. The Court ruled in favour of the ACCC finding that it is unfair to hold a consumer to an agreement for which they did not give informed consent and which they would be required to make payment upon termination. The Court found the unfair terms void and granted relief in the form of a full refund of all monies paid under the contract.

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