[2014] 1 LNS(A) xx Legal Network Series 1 UNFAIR CONTRACT TERMS IN MALAYSIA: THE GAP IN THE CONSUMER PROTECTION (AMENDMENT) ACT 2010 by MITRA MANISHA RAJADURAI* DONNA ELIZABETH BARCLAY** Abstract Before the coming of Part IIIA contained in the Consumer Protection (Amendment) Act 2010, Malaysian consumers who were faced with unfair contract terms had to seek redress under common law. With the amendment of the Consumer Protection Act 1999, consumers were then able to seek remedies under the new legislation. Whilst the effort of the government is certainly praiseworthy, this article aims to provide a critique to the fact that, unlike in the United Kingdom and Australia, the Act does not make mention of a specific body given express administrative powers to monitor such terms. This paper thus intends to compare the government agencies in Malaysia, the United Kingdom and Australia that monitor unfair contract terms. Introduction Standard form contracts are contracts that contain a set of pre prepared terms and conditions which are usually unilaterally drawn up by [2014] 1 LNS(A) xx Legal Network Series 2 businesses and commercial entities. Such contracts have become a popular mode of transacting as they promote efficiency because of the high volume of transactions struck on a daily basis. [1] Mass production and consumption have also contributed to the popularity of such contracts in current times. As such, it would be difficult for organizations carrying out large volumes of business to prepare diverse contracts for each individual with whom they transact. [2] Thus standard form contracts are prepared containing exclusion and, exemption clauses [3] and unfair terms are incorporated. Such a contract serves as a fixed form, or template, which buyers are to sign and to which they are subsequently bound. These fixed form contracts are beneficial to society in the sense that the costs of production and distribution are reduced. [4] Having said that, admittedly standard form contracts are used by enterprises with stronger bargaining power and the weaker party, being the consumer, will usually find it difficult to look for better terms as the enterprise either has a monopoly or competitors use the same terms. [5] Additionally, some consumers are uneducated about the consequences of signing a standard form contract even though their rights may be limited or excluded by such a contract. Consequently, although the weaker party did not truly assent to all the terms, this type of contract has a very ‘take it or leave it’ character leaving the buyer with no choice but to adhere to the terms. The terms contained in these forms are sometimes unfair and burdensome which result in the consumer suffering the consequences of such terms upon signature. In light of the problems faced by consumers due to these unjust and at times arbitrary terms, Parliament intervened to protect [2014] 1 LNS(A) xx Legal Network Series 3 consumers, [6] by introducing the Consumer Protection (Amendment) Act 2010 (The Amendment Act 2010), which was bought into effect in 2011 in order to deal with the loopholes in the Contracts Act 1950 (CA 1950) which had no provisions in regards to unfair contract terms. It also served as an amendment to the Consumer Protection Act 1999 (CPA 1999), which did not specifically deal with unfair contract terms to provide redress in the situation. The Amendment Act 2010 inserted Part IIIA into the CPA 1999 which now specifically deals with unfair terms. Prior to this, these types of terms were dealt with under the common law. Both the 1950 and 1999 Acts provided no assistance in relation to unfair terms, unlike the position in the United Kingdom which has enacted the Unfair Contract Terms Act (UCTA) 1977, which came into force on the 1 st of February 1978, and the Unfair Terms in Consumer Contracts Regulations (UTCCR) 1994. The UTCCR was later expanded in the Unfair Terms in Consumer Contracts Regulations (UTCCR) 1999. The UCTA applies to unfair terms, however the scope of the notion of ‘unfairness’ under the Act only relates to exclusion and exemption clauses. The latter statutes relate generally to any unfair term which was not individually negotiated, except for terms that fall under the purview of the subject matter or price. [7] Many consumers, especially those involved in small consumer claims, do not pursue matters regarding unfair terms as they are put off by the expense and time that litigation could involve. [8] In Malaysia, the enactment of the 2010 Act is one that has lifted a heavy burden from the shoulders of consumers by providing for remedies for unfair terms. This [2014] 1 LNS(A) xx Legal Network Series 4 paper seeks to address one area of concern regarding the Act, that being the fact that there is no government agency, nor specific government body, to monitor the activities of commercial bodies that continue to prepare standard form contracts that may be greatly disadvantageous to the consumer. [9] Such a body would be able to monitor standard form contracts and also seek injunctions on behalf of aggrieved consumers against businesses that use such terms. This paper consists of four parts. It begins with the role of the Director General of Fair Trading (DGFT) and the Office of Fair Trading (OFT) of the United Kingdom and two leading cases brought by these governmental bodies. Part II narrates the Australian law and enforcement agencies that deal with unfair contract terms. Part III concentrates on the current position in Malaysia with respect to the government agencies and non-governmental organisations advocating consumer rights and protections. The final part concludes the paper and suggests possible reform options. Part I- The position of the Director General of Fair Trading and the Office of Fair Trading - United Kingdom. The notion of freedom to contract is a position at which parties enter into a transaction provided both sides voluntarily, with all the material facts in hand, and coupled with the fact that parties to the contract were of equal bargaining power. However, in certain instances, parties that enter into contracts do not stand in equal positions. The inequality of positions is where one party has the upper hand over the [2014] 1 LNS(A) xx Legal Network Series 5 other. This is in most circumstances the businesses; this consequently, forces the ‘weaker’ party, the consumer, who has no choice but to adhere to the terms stipulated by the opposing ‘stronger’ party. In these situations, now and then, these terms turn out to be unfair. Such terms would be terms excluding or limiting liability or other forms of onerous terms. It is interesting to note Lord Denning’s statement in relation to the notion of freedom of contracting and exemption clauses, ‘None of you nowadays will remember the trouble we had - when I was called to the Bar - with exemption clauses. They were printed in small print on the back of tickets and order forms and invoices. They were contained in catalogues or timetables. They were held to be binding on any person who took them without objection. No one ever did object. He never read them or knew what was in them. No matter how unreasonable they were, he was bound. All this was done in the name of “freedom of contract”. But the freedom was all on the side of the big concern which had the use of the printing press. No freedom for the little man who took the ticket or order form or invoice. The big concern said, “Take it or leave it”. The little man had no option but to take it. The big concern could and did exempt itself from liability in its own interest without regard to the little man. It got away with it time after time. When the courts said to the big concern, “You must put it in clear words”, the big concern had no hesitation in doing so. It knew well that the little man would never read the exemption clauses or understand them. [10] ’ Exemption clauses which comes under the purview of unfair terms oftentimes appear to be accepted by a customer owing to the fact that [2014] 1 LNS(A) xx Legal Network Series 6 they were not aware that such clauses were hidden in the ‘fine print’ or the said customer did not take the time to read the tedious clauses put before him. On several other occasions, even if read, the consumer may not have comprehended the consequences which follow from agreeing to such clauses as they may be worded in a complex nature . [11] In 1975, the Law Commission, in its report stated that there was a need to control exemption clauses as consumers in most circumstances either did not understand the implications of such terms or, in situations where they did grasp the nature of the terms, were deprived of the bargaining power to modify those terms. [12] Lord Denning aptly put the nature of the situation of exemption clauses and its interaction with the customer as such, ‘We have been referred to the ticket cases of former times …. They were concerned with railways, steamships and cloakrooms where booking clerks issued tickets to customers who took them away without reading them. In those cases the issue of the ticket was regarded as an offer by the company. If the customer took it and retained it without objection, his act was regarded as an acceptance of the offer…. These cases were based on the theory that the customer, on being handed the ticket, could refuse it and decline to enter into a contract on those terms. He could ask for his money back. That theory was, of course, a fiction. No customer in a thousand ever read the conditions. If he had stopped to do so, he would have missed the train or the boat. [13] ’ Although the clauses found in standard form contracts are sometimes deemed to be unfair by the consumer, with the existence of standard form contracts, businesses are able to conclude contracts based [2014] 1 LNS(A) xx Legal Network Series 7 on complex terms swiftly and promptly. Nonetheless, the predicament is still that the standard form contract can be abused, as emphasise d, where a unilaterally drawn up contract restricts the other’s rights where the other is unable, due to the lack of time or skills, to understand the nature of the terms. [14] Businesses preparing such clauses in their standard term contracts have a very ‘take it or leave it’ attitude towards consumers. [15] Further, these entities are aware that consumers usually do not shop for terms of a contract, instead, more attention is paid to price and quality . [16] Due to the existence of these prevailing issues, Parliament first enacted the Unfair Contract Terms Act (UCTA) 1977 to curb the problem of the insertion of terms which are unfair to the consumer, such as the restriction of liability in tort for negligence in the event that a consumer suffers loss or is injured through a defect in the goods. This restriction is given in exchange for the consumer’s acceptance of a guarantee to replace or repair the goods.[17] The UCTA 1977 was then followed by the 1994 and 1999 Unfair Terms in Consumer Contracts Regulations. An important feature in the Regulations, is the power conferred on the Director General of Fair Trading (Director General) [18] to seek injunctions to restrain the use of standard terms on the ground that they are unfair. [19] This was a rather prominent feature in the Regulations as the right to bring an action against the use of an unfair term has been expanded. Thus the Regulations now allow for other parties to challenge the usage of unfair terms, that being the consumer and the Director General and Qualifying bodies. These Qualifying bodies include the Data Protection Registrar, the Director General of Electricity Supply, the [2014] 1 LNS(A) xx Legal Network Series 8 Director General of Gas Supply, the Director General of Electricity Supply for Northern Ireland and the Director General of Gas fo r Northern Ireland. [20] Originally in 1973, the Director General was appointed by the Secretary of the State [21] and remained in office for a period not exceeding five years, subject to re-appointment. [22] The Office of Fair Trading, a non-ministerial government department was set up under the Fair Trading Act 1973 to assist the DGFT in the performance of his functions. However, these positions were later re-organised in 2002. [23] The first significant case involving the DGFT was Director General of Fair Trading v. First National Bank [24] which involved the DGFT petitioning for an injunction to restrain the continued use of a clause in the First National Bank’s standard terms contract. [25] The clause in dispute was condition 8 which read: ‘…Interest on the amount which becomes payable shall be charged in accordance with Condition 4, at the rate stated in paragraph D overleaf (subject to variation) until payment after as well as before any judgement (such obligation to be independent of and not to merge w ith the judgement).’ [26] The DGFT objected to this term because, in effect, it resulted in the borrower being charged a continued contractual rate of interest upon the outstanding amount and any accumulated interest that was yet to be paid at the date of judgment. Simply put, with the existence of such a clause, the bank could continue to impose their interest upon the borrowers [2014] 1 LNS(A) xx Legal Network Series 9 instead of the application of the lower rates which were applicable to judgment debts.[27] The Bank in its reply argued that the term in question was not subject to scrutiny as it was not one to which the test of unfairness applied since it related to the price.[28] In its second argument, the bank contended that, if in fact the term did come under the purview of the discussion of unfairness, the clause was still indeed fair. [29] The House of Lords disagreed on the first contention, the judges opined that the word ‘adequacy of price’ in the Regulation should be given a more restrictive interpretation and went further to state that if such a broad approach was taken, almost all terms are in some way or another related to price. [30] The task was then left to the judges to determine the question of the fairness of the term. The judges unanimously decided that the term was fair by examining the notion of good faith expressed in the regulation. Regulation 4 [31] reads that an “‘unfair term’ means any term which is contrary to the requirement of good faith and causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer.” Lord Bingham, in his leading judgment explained that in order to determine the issue, the contract would have to be examined as a whole. He said that good faith related to ‘fair and open dealing’. He continued to explain openness by saying that, ‘openness required that the terms in question were expressed fully, clearly and legibly, containing no concealed pitfalls or traps.’[32] Lord Bingham went [2014] 1 LNS(A) xx Legal Network Series 10 as far as to say in the case in question that if the disputed term were not present in the contract, it would be detrimental to the lender. [33] Although the House of Lords ruled in favour of the Bank, this case demonstrates the importance of the role of the Director General. The Director General under regulations 10 and 12[34] has a mandate to receive complaints from consumers and act upon them unless he considers them to be frivolous and vexatious or where a Qualifying body has agreed to consider the complaint. With this authority handed to the Director General, the burden on the consumer is alleviated, as unfair terms can be dealt with by the Director General by requiring traders to remove or amend such terms. In cases where such businesses refuse to do so, legal action can be brought by the Director General. It is interesting to note that the Qualifying bodies have the authority to also seek injunctions against the users of unfair terms. For the application of the injunction, the Qualifying bodies must first notify the DGFT 14 days before an application is made for the injunction. [35] A slight change occurred in 2002 when Parliament enacted the Enterprise Act 2002. With the coming of this piece of legislation, the position of the Director General was replaced with the Office of Fair Trading (OFT) which took over the role of the Director. Henceforth all rights, liabilities and any laws which referred to the powers and actions that could be initiated by the Director General were transferred to the OFT and the office of the Director was abolished. [36] Thus the authority given to the Director General under the Regulations is now entrusted to [2014] 1 LNS(A) xx Legal Network Series 11 the OFT. Nonetheless, just like the Director General, the powers of the OFT associated with unfair terms remain similar. The OFT has the duty to investigate consumer complaints and in extreme circumstances bring an action for an injunction against the user of such terms although the OFT does not have the authority to bring an action for personal redress on behalf of consumers. [37] Despite this fact, the OFT may act as a general enforcer [38] for community infringements, where the OFT can seek enforcement orders against a business party which harms the collective interests of consumers and contravenes a Directive in Schedule 13 which includes unfair contract terms. [39] Just like its predecessor, the OFT was a party to a leading case in the Supreme Court. The case of Office of Fair Trading v. Abbey National plc and Others [40] concerned an appeal against the decision of the Court of Appeal that the respondent OFT was not precluded from invest igating the appellant bank’s unauthorised overdraft charges with reference made to the UTCCR 1999. The OFT’s investigation and action in court was directed towards circumstances where customers make use of the unauthorized overdraft, the bank makes payments on behalf of the customer and then charges the customer in question a fee whilst the daily accrual takes place throughout the period of the continuance of the unauthorised overdraft. The OFT challenged these fees in that they did not fairly reflect the bank’s costs and therefore the fee acted as a penalty upon customers thus constituting unfairness leading to the term to being unlawful. [2014] 1 LNS(A) xx Legal Network Series 12 The question for the Supreme Court to decide was if the unauthorised overdraft charge fell within the ambit of Regulati on 6(2) [41] of the 1999 Regulations. The Supreme Court unanimously ruled in favour of the appellants. In his leading judgment, disagreeing with the findings of the Court of Appeal, Lord Walker noted the following, ‘ I can state my opinion much more briefly on the second main issue in the appeal, that is the application of Regulation 6(2), properly construed, to the facts. Charges for unauthorised overdrafts are monetary consideration for the package of banking services supplied to personal current account customers. They are an important part of the banks’ charging structure, amounting to over 30 per cent of their revenue stream from all personal current account customers. The facts that the charges are contingent, and that the majority of customers do not incur them, are irrelevant. On the view that I take of the construction of Regulation 6(2), the fairness of the charges would be exempt from review in point of appropriateness under Regulation 6(2)(b) even if fewer customers paid them, and they formed a smaller part of the banks’ revenue stream. Even if the Court of Appeal’s interpretation had been correct, I do not see how it could have come to the conclusion that charges amounting to over 30 per cent of the revenue stream were (para 111) “not part of the core or essential bargain. [42] ”’ Other than seeking injunctions, the OFT is responsible for playing a proactive role in investigating individual terms or contracts as a whole. Upon receiving a complaint or acting on their own initiative, the OFT holds discussions with traders on the term(s) in question. In 2011, the OFT undertook to amend Groupon’s trading practices following complaints from consumers. The OFT investigated several areas of Groupon’s standard form contract terms, to name a few, reference pri ces, product display and general terms and conditions. Groupon accordingly agreed to amend its trade practices. [43] With regards to the protection of consumers Senior Director in the OFT's Goods and Consumer Group, Cavendish Elithorn had the following to say, 'Collective buying and [2014] 1 LNS(A) xx Legal Network Series 13 discount schemes can offer real benefits for both consumers and merchants. The market is growing rapidly, but it's important that consumers benefit from consumer protection law as well as from the discounted offers.’ [44] A more recent success of the OFT in 2013, concerned the modification of the terms of contract in three gyms [45] in which the gym’s agreed to undertake to change their terms that the OFT had deemed unfair, namely in areas where customers would be allowed to cancel their gym membership contracts early if unable to continue with the membership for specific reasons and greater transparency in terms of membership features. [46] It is presumed that traders in certain circumstances comply with the stipulations laid down by the OFT due to the fear of bad publicity. Also the rewritten versions may be enforceable against the consumer versus a version which is not altered and if brought before the court and declared unfair, may not be enforceable against the consumer at all. [47] The OFT also publishes guidelines regarding the interpretation of the Regulations.[48] This can be evidenced from the OFT’s official website.[49] Part II- The Australian Competition and Consumer Commission Australian law, like British law, recognises that there are many situations in which consumers enter into contracts which contain unfair terms. While the concept of laissez faire or ‘freedom of contract’ once [2014] 1 LNS(A) xx Legal Network Series 14 dominated Australian jurisprudence on this issue, more recently there has been concern that consumers may be exploited by the inclusion of unfair terms in contracts that go further than protecting the legitimate interest of the business that drafted the contract. [50] The law is increasingly being redesigned to protect consumers from such unfair terms, especially in situations where the consumer had little or no opportunity to negotiate the terms, such as often occurs with standard form contracts. [51] Since the 1970’s, federal and state legislation has been introduced to protect consumers from unfair contract terms. Consumer protection policy of this era was criticised as consisting of “light-handed regulation”. [52] However, as an adjunct to legislation, courts, in their equitable jurisdiction, intervened in the consumer protection arena by developing such doctrines as ‘unconscionability’ which would prevent a more powerful party from enforcing a contract that would be to the detriment of a weaker party. The High Court of Australia has defined the parameters of this unconscionability doctrine in Commercial Bank of Australia Ltd v. Amadio. [53] In the last two decades, a more robust approach to unfair contract terms has been adopted by the legislature. The main federal regulatory body, the Australian Competition and Consumer Commission (ACCC), is an independent Australian Government statutory authority that was formed in 1995 to administer the Trade Practices Act 1974 and the Prices Surveillance Act 1983. The main role of the ACCC is to promote competition and fair trade for the benefit of consumers, businesses and the community. It ensures that individuals and businesses comply with [2014] 1 LNS(A) xx Legal Network Series 15 the Commonwealth competition, fair trading and consumer protection laws. In fair trading and consumer protection, its role compliments that of the state and territory consumer affairs agencies which administer the mirror legislation of their jurisdictions. [54] The ACCA is consumer-friendly. This is evidenced, in part, by its website which provides consumers with information about their rights in connection with consumer law, such as guarantees and warranties contained in sales contracts, as well as unfair contract terms. The complaint letter template, available on its website, assists consumers to draft letters of complaint to retailers. [55] The site further provides information to consumers on how to recognise potentially unfair contract terms. Each aspect of the process involved in making a consumer complaint is further explained as the consumer navigates through each step on the website. The site provides clear advice that is non-threatening to consumers and it also suggests alternative options such as resolving complaints via the state or territory small claims tribunals. Additionally, information is provided on the dispute resolution processes of tribunals and the process of lodging a claim. [56] As can be seen, a plethora of possible options was available to consumers and many of these were accessible via the ACCC website. However, there existed substantial variations between Commonwealth, State and Territory legislative schemes, which resulted in uncertainty for both businesses and consumers in determining their respective rights. [57] Thus on 1 July 2010, the unfair contract terms provisions of the Australian Consumer Law (Schedule 2 of the Competition and Consumer [2014] 1 LNS(A) xx Legal Network Series 16 Act 2010) (ACL) came into force and has nation-wide application. The law applies to contracts that are entered into, on, or after 1 July 2010 and to terms of existing contracts that are renewed or changed on or after 1 July 2010. [58] The ACL replaces provisions in over 17 State and Territory Acts and the Trade Practices Act 1974 (Cth). [59] Under the ACL, a ‘consumer contract’ means a contract for the supply of goods and services or the sale or grant of an interest in land, to an individual who acquires it wholly or predominately for personal, domestic or household use or consumption. [60] New remedies available under the ACL are civil pecuniary penalties. Courts may also impose significant penalties against corporations and individuals for contravention of certain ACL provisions. [61] Whilst the ACL is consistent across the country, as it is both state and federal law, it may be enforced by both by the Australian Competition and Consumer Commission (ACCC) and the individual state fair trading regulators. The various regulators have agreed to coordinate their effort and avoid multiple investigations of the same conduct. It is clear that the ACCC will continue to be the lead regulator, particularly for conduct that occurs in multiple states. The ACL can also be private ly enforced. Since the ACL is both state and federal law, consumers are able to enforce its provisions through the various consumer tribunals, as well as through state and Commonwealth courts. [62] Following the introduction of the ACL, the ACCC, in its role of enforcing consumer protection, was noticeably quiet in that it did not take any immediate public action, for breach of any of the provisions of the [2014] 1 LNS(A) xx Legal Network Series 17 ACL. [63] Then, in 2011, the ACCC took decisive action. Firstly, it commenced two Federal Court cases, secondly it identified certain terms that would constitute breaches of the provisions contained in the ACL. (i) Commencement of Federal Court Cases by the ACCC One year after the introduction of the ACL, the ACCC commenced two Federal Court cases concerning unfair contract terms. The cases concerned are, firstly, ACCC v. Advanced Medical Institute Pty Ltd [64] and, secondly, ACCC v. ByteCard Pty Limited.[65] In the first case, the defendant (AMI) and a related company, offered nasal spray treatment for erectile dysfunction, premature ejaculation and female sexual dysfunction, between 2008 and 2010. The man behind the AMI was a Soviet-era trained doctor, Ukrainian Jack Vaisman, who was unregistered in Australia. He obtained a Ph.D. from the USA, which could result in his title, “Doctor”, to be misleading to the public. The wide powers of the ACCC were clearly apparent to the public when the headquarters of Jack Vaisman's office were raided by the Commission. According to a newspaper report, fifty ACCC officers spent 10 hours going through AMI records before carting away boxes full of documents. [66] Following this high-profile raid, the ACCC commenced legal action against AMI. The ACCC claimed in their suit that “AMI engaged in unconscionable conduct”, this included AMI doctors providing inappropriate “diagnosis and medical treatment of male sexual dysfunction” and misrepresenting to patients the conditions under which "they would be entitled to a refund if the AMI treatments were ineffective in circumstances”.[67] [2014] 1 LNS(A) xx Legal Network Series 18 In the Bytecard case, [68] the ACCC alleged that a number of the terms in Bytecard’s standard form contracts, which its customers are required to sign, are unfair, in contravention of s. 23 of the ACL. ByteCard, which runs an Internet Service Provider called NetSpeed Internet Communications, provides internet connectivity, domain registration, hosting and web design. It used general terms and conditions for all its services, which it published on its website. [69] The terms that the ACCC challenged as unfair were terms that: • enabled Bytecard/NetSpeed to unilaterally vary the price of the existing contract without providing customers with any rights to terminate; • required the customer to indemnify Bytecard in any circumstances; and • allowed Bytecard/NetSpeed to terminate the contract at any time. [70] The ACCC sought declarations that the above clauses were unfair and therefore void pursuant to s. 23 of the ACL. ON 20 July 2013, the Federal Court, in handing down its decision agreed that each of the terms were unfair as: • they would cause a significant imbalance in the parties' rights and obligations arising under the contract; and • they were not reasonably necessary in order to protect the legitimate interests of NetSpeed being the party who would be advantaged by the term; and [2014] 1 LNS(A) xx • Legal Network Series 19 they would cause detriment (whether financial or otherwise) to a consumer if applied or relied on by NetSpeed. [71] Following these two high profile cases, the ACCC struck again in ACCC v. Lux Distributors Pty Ltd [2013]. [72] In a Full Federal Court decision handed down on 15 August 2013, the Court provided a timely and welcome commentary on the connection between the common law concept of unconscionable conduct, the equitable doctrine that has been developing over the past 20 years, [73] and statutory unconscionable conduct, which is specifically provided for in 21(1) of the ACL (and its precursor, s 51AB(1) of the Trade Practices Act 1974 (Cth)). In a unanimous decision, the Full Court [74] allowed the ACCC’s appeal and made declarations that Lux had engaged in conduct that was in all the circumstances unconscionable. Of importance, the Court commented on the test for unconscionability under the statute and concluded that: • To establish that conduct is unconscionable, what must b e shown is something “not done in good conscience... Notions of moral tainting have been said to be relevant, as often they no doubt are, as long as one recognises that it is conduct against conscience by reference to the norms of society that is in question.” Since Lux had not met the societal norms requiring honest and fair conduct free of deception, Lux was in breach of their obligations under the ACL. [2014] 1 LNS(A) xx Legal Network Series 20 The ACCC has recently undertaken an industry review and engagement which examined consumer contracts in the airline, telecommunications, fitness and vehicle rental industries, as well as some contracts commonly used by online traders and travel agents. The aims of the industry review were to: • evaluate compliance with unfair contract terms law and broader ACL requirements in key national industries, by identifying problematic contracts and contract terms, as well as broader concerns; and • work with business to achieve positive changes to standard form consumer contracts and related practices, to benefit consumers. [75] On 15 March 2013, the ACCC released its report ‘Unfair Contract Terms Industry Review Outcomes’, [76] which identified a wide variety of problematic terms in standard form consumer contracts. The Report identified the following types of terms to be of particular concern to the ACCC including: (i) terms that allow the business to change the contract without consent from the consumer; (ii) terms that unfairly restrict the consumer’s right to terminate the contract; (iii) terms that suspend or terminate the services being provided to the consumer under the contract; (iv) terms that prevent the consumer from relying on representations made by the business or its agents; and other terms. [2014] 1 LNS(A) xx Legal Network Series 21 The ACCC found that in the majority of industries reviewed, most businesses took advantage of the opportunity to align their standard form contracts with the new unfair contract terms laws. In particular, in the airlines industry, 79% of problematic terms identified by the ACCC have been amended or deleted as a result of the review. [77] However, other industries have not been so forthcoming with self regulation, and as a result the ACCC has made it clear that further court action will follow. The Commission has indicated in its Report [78] that the grace period focus on compliance review has come to an end and that ACCC will take more enforcement proceedings to deal with unfair contract terms. However, as commentators note, [79] that while the ByteCard Case [80] illustrates the illegality of terms that fall within the unfair contracts terms domain, it is likely that future ACCC action will seek to test the edges of that territory, such that businesses cannot rely on a checklist approach of terms that will be struck out. It is thus prudent for all businesses that use standard form contracts to review the standard terms and make the necessary changes to be ACL-compliant. (ii) Private Enforcement of Australian Consumer Law Apart from compliance and enforcement by ACL regulators,[81] in particular, the ACCC, the ACL creates private rights that persons can enforce through Commonwealth, state and territory courts and tribunals. [82] Unlike some other jurisdictions, private individuals can take private actions under the ACL to obtain remedies against anti competitive conduct. However, only the ACCC can obtain penalties for [2014] 1 LNS(A) xx Legal Network Series 22 contraventions of the law. Private litigants can only seek injunctions and damages. [83] Since the ACL has only been in operation for just on two years, one would not expect any superior court decisions following consumer court action. However, it appears that the number of Tribunal decisions in Australia over the period 2011-2012 is unexpectedly small. One possible explanation is that there is still a widespread lack of awareness of consumer rights under the ACL. Another possible explanation is that there are unresolved access to justice issues that need to be addressed: we do not yet have a streamlined, cost-effective and efficient process for enforcing consumer rights in Australia. There is also evidence tha t the mandatory conciliation process that must be undertaken prior to a hearing in some Tribunals is not working well and may be deterring some consumers from pursuing their rights. [84] (iii) Concluding Remarks The ACCC initially appeared to be a toothless tiger in the early days of the ACL. It has now demonstrated its willingness to sink its teeth into enforcing the consumer protection legislation with a series of high profile cases. [85] Consumers continue to have rights to bring actions against businesses for unfair contract terms in consumer contracts, but the ACL is largely untested in this respect due to its relative recent introduction. [2014] 1 LNS(A) xx Legal Network Series 23 Part III- The Malaysian government and non-governmental agencies Introduction - Unfair Contract Terms and Consumer Protection in Malaysia Unlike the United Kingdom which possesses the Unfair Contract Terms Act 1977, Unfair Terms in Consumer Contracts Regulations 1994 and 1999, Malaysia does not have statutory legislation to deal with the issue of the unfairness of consumer contract terms. Parliament then amended the Consumer Protection Act 1999 (CPA 1999) to include Part III [86] with the insertion of Section 24A- 24 J. This Act contains two approaches in dealing with an unfair term; procedural unfairness [87] and substantive unfairness. [88] Procedural unfairness focuses on the process of coining the terms of a contract [89] or where the contract was brought into existence in an unfair manner for example where undue influence is present, [90] whilst the latter refers to the outcome of the aforementioned process, that being the substance of the contract. [91] The CPA 1999, which came into effect on 1 October 1999, is the most significant piece of Malaysian legislation dealing with unfair contract terms and consumer rights. The Act was enacted to protect consumers. [92] Prior to the CPA 1999, there was a variety of legislation designed to protect consumers, for example: the Price Control Act 1946; the Control of Supplies Act 1961; the Hire Purchase Act 1967; the Weights and Measures Act 1972; the Trade Description Act 1972 and the Direct Sales Act 1993.[93] [2014] 1 LNS(A) xx The CPA Legal Network Series 1999 provides rights and 24 remedies which are supplementary to the rights and remedies contained in other legislation, such as the Sale of Goods Act 1957. The scope of the CPA 1999 includes goods and services supplied to a consumer in the course of a business. Thus not all consumer transactions are covered by the Act. Whilst the CPA 1999 partially addressed the issue of unfair contracts, it did not contain sufficient protection for consumers as far as standard form contracts and exclusion clauses were concerned. A standard form contract is a consumer contract drawn up for the general use of a particular industry, whether or not the contract differs from other contracts normally used in that industry. [94] Thus, the Consumer Protection (Amendment) Act 2010 [95] inserted Part IIIA into the CPA 1999 to remedy this lacuna in the law. An “unfair term” is defined as a term in a consumer contract which, having regard to all the circumstances, causes a significant imbalance in the rights and obligations of the parties arising under the contract to the detriment of the consumer. [96] The effect of s. 24A is that if a term is considered to be unfair, the court may declare it to be “unenforceable or void”. Alternatively, the court may exercise its power to sever the offending term if the remaining terms of the contract can stand without the unfair term. Part IIIA [97] of the CPA introduces the concept of “procedural fairness” [98] and “substantive fairness”. [99] “Procedural unfairness” refers to the process of creating a contract between the supplier and the consumer which has resulted in an unjust disadvantage to the consumer. [2014] 1 LNS(A) xx Legal Network Series 25 The common law recognises such a concept in a contract to be procedurally unfair when it is entered into through an unfair means, for example, through coercion, undue influence or fraud by one of the parties. [100] “Substantive unfairness”, on the other hand, relates to the content of the contract, where a contract would be considered substantially unfair if it is harsh, oppressive, unconscionable, or excludes or restricts liability for negligence or for breach of contract. [101] At common law, courts have indicated more reluctance to interfere in a contract where substantive, rather than procedural unfairness, has been alleged. [102] Section 24C(1) proscribes that a contract term is procedurally unfair when i. It results in an unjust advantage to the supplier (i.e. the business relying on the term in question) and/or; ii. It results in an unjust disadvantage to the consumer; iii. On account of the conduct of the supplier; or iv. On account of the manner or circumstances that the contract is entered into between the supplier and the consumer. Section 24D(1) provides that a contract term is substantially unfair when; i. ii. iii. iv. v. it is in itself harsh; it is oppressive; it is unconscionable; it excludes or restricts liability for negligence; it excludes or restricts liability for breach of express or implied terms of the contract “without adequate justification”. The approach of dealing with unfair terms as procedurally unfair and substantially unfair is unusual when it comes to legislation. Such an approach has not been taken in any other Commonwealth jurisdiction. [103] [2014] 1 LNS(A) xx Legal Network Series 26 Part IV of the CPA 1999 provides for penalties, defences and remedies for offences committed under Parts II and II. Section 25(1) provides that any person who contravenes any of the provisions of Parts II and III commits an offence and on conviction shall be liable to the prescribed punishment. If the perpetrator is a corporation, the company is liable to a fine not exceeding RM250,000 and RM500,000 for subsequent offences. For a private person, the maximum fine is RM100,000 and/or a term of imprisonment of a term not exceeding three years and for subsequent offences a fine not exceeding RM250,000 and/or a term of imprisonment not exceeding six months. As noted by the authors Hamid and Mansor, [104] Parliament has essentially made it easier for consumers to avoid contracts which are either procedurally or substantively unfair following the enactment of the Consumer Protection (Amendment) Act 2010. However, consumers would need to be familiar with the terms of the Act in order to recognise that the contract that they entered into could be unfair and therefore voidable. The National Consumer Advisory Council and the Tribunal for Consumer Claims were established under the CPA 1999 to assist in the resolution of consumer claims. National Consumer Advisory Council Section 73 of the CPA 1999 provides for the establishment of the Council and its roles. The Council advises the Minister on the following matters: (a) Consumer issues and operation of the CPA 1999 (b) The promotion of consumer protection awareness in consumer affairs [2014] 1 LNS(A) xx Legal Network Series 27 (c) Any other matter which may be referred to it by the Minister for the proper and effective implementation of the Act and for the protection of consumers. Section 74 provides that the Council’s members will consist of the Secretary-General of the Ministry of Domestic Trade and Consumer Affairs or his representatives and not more than sixteen other persons representing the interest of consumers, manufacturers, suppliers, other non-governmental organisation and academicians. Tribunal for Consumer Claims This Tribunal was established under s. 85, Part XII CPA 1999. The rationale behind the introduction of the Tribunal is that court cases often involve lengthy and expensive procedures, which could intimidate consumers, especially those consumers making a complaint against a large, powerful corporation with unlimited resources, The Tribunal operates under the Ministry of Domestic Trade, Co-operatives and Consumerism. The primary objective of establishing the Tribunal is to provide an alternative forum for consumers to file claims in a simple, inexpensive and speedy manner. [105] In September 2013, over 13,500 visitors were recorded as visiting this site, however, the number of persons using the services provided by the Tribunal is not disclosed. [106] The Tribunal can hear claims for goods and services where the amount claimed does not exceed RM25,000. Claims must be brought to the Tribunal within three years of the cause of action arising. The proceedings of the Tribunal are open to the [2014] 1 LNS(A) xx Legal Network Series 28 public. The Tribunal may make an award and must give reasons for this award. Any award made by the Tribunal is final and cannot be appealed. However, the Tribunal may refer a matter of law to the High Court. The parties must comply with the award within 14 days, failure to comply with the award is an offence and can be punished with a fine of RM5,000.00 and/or a term of imprisonment not exceeding two years The National Consumer Complaints Center The NCCC was formed in 2004, as a pioneer in consumer dispute resolution in Malaysia as well as in South East Asia. In 2012, the organisation handled approximately 41,963 complaints throughout Malaysia. [107] The website for the NCCC provides information for consumers on issues such as repossession of motor vehicles and misleading advertising, but does not provide specific information for consumers who wish to seek redress for an unfair contract or contract term. Federation of Malaysian Consumers Associations (FOMCA) FOMCA is a non-governmental organization formed on the 10 th June 1973 that works towards strengthening consumer protection. It acts as an umbrella body to the state consumer associations. It acts as an advisory agency towards its registered member consumer associations, promotes and advocates consumer rights and welfare, and disseminates information to consumers. [108] Part IV- Conclusion [2014] 1 LNS(A) xx Legal Network Series 29 The current legislative and regulatory regime with respect to unfair contract terms, in particular, exclusion clauses, has been found by these writers to be in need of overhaul. The current legislative framework in Malaysia is complicated and confusing for those consumers seeking to clarify their rights. The Consumer Protection Act 1999, as amended by the Consumer Protection (Amendment) Act 2010, invalidates terms on the grounds of procedural and substantive unfairness. Courts or Tribunals considering the terms of a contract are provided with guidelines as to the assessment of whether a term is procedurally or substantively unfair. However, consumers may find it difficult to navigate the complexity of the Act and decide if the contract that they entered into could be regarded as unfair and therefore voidable. The National Consumer Complaints Centre and the National Consumer Advisory Council are bodies which have been created specifically to deal with standard form contracts and exclusion clauses, however, neither have the regulatory power needed to effectively protect consumers. The treatment of unfair contract terms in the United Kingdom by the UCTA 1977, the 1994 and 1999 Unfair Terms in Consumer Contracts Regulations appear to deal more generously with consumer rights in terms of providing courts with the power to strike down unfair terms. Furthermore, as for regulation of unfair contract terms, the Office of Fair [2014] 1 LNS(A) xx Legal Network Series 30 Trading (OFT) has the power to seek injunctions to restrain the use of unfair terms. Furthermore, in Australia, the recent legislation Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010) (ACL) has comprehensively provided rights and remedies for consumers who enter ‘consumer contracts’ which are unfair. The Australian Competition and Consumer Commission (ACCC) has shown itself to be a watchdog with a powerful bite in its willingness to take to court those businesses that seek to gain an advantage over consumers by inserting unfair terms in standard form contracts. It is recommended that Malaysia requires more consumer-friendly legislation so that Malaysian consumers may be more easily informed of their rights. Furthermore, a national body with the regulatory and watchdog powers of either the Office of Fair Trading in the UK or the ACCA in Australia, would further enhance consumer rights in Malaysia. ____________________________________________________________ * Faculty of Accountancy, Finance and Business, Tunku Abdul Rahman University College. email: mitramanisha@acd.tarc.edu.my ** Faculty of Business Methodist Pilley Institute Sibu, Sarawak. email: donna2303@yahoo.com Endnotes: [1] Edwin,C Judicial Interference With Standard Form Contracts -- A Critique on Ho Lai Ying v. Cempaka Finance Bhd, [2005] 5 MLJ xiii, p14. [2014] 1 LNS(A) xx [2] Sharma, G. Legal Network Series The Crisis of Standard 31 Form Contracts, page 1, http://drgokuleshsharma.com/pdf/STANDARD%20FORM%20CONTRACTS.pdf . Accessed: 7/11/13 [3] Ibid. [4] Kessler, F. Contracts of Adhesion - Some Thoughts About Freedom of Contract. 43 Colum. L. Rev (1943), p 632. [5] Ibid. [6] Preamble to the Consumer Protection Act 1999. [7] Regulation 6 (2) UTCCR 1999, Regulation 3 (2) UTCCR 1994. [8] Beale, H. Unfair Contract Terms Act 1977, British Journal of Law and Society, Vol. 5, No.1 (1978), p120. [9] Amin, N. Protecting Consumers against Unfair Contract Terms in Malaysia: The Consumer Protection (Amendment) Act 2010, [2013] 1 MLJ lxxxix, p 105. [10] [1983] 2 AC 803 [11] Hippel, E, V. The Control of Exemption Clauses: A Comparative Study, The International and Comparative Law Quarterly, Vol. 16, No. 3 (Jul., 1967), p. 593. [12] Law Commission Exemption Clauses Second Report, LAW COM. No. 69 (1975), p5 [13] [1971] 1 ALL ER 686. [14] Above note 8 at p 115. [15] Hamid, N., & Mansor, H. The Legal Implication of the Consumer Protection (Amendment) Act 2010 on contract terms in Malaysia. Annual Summit on Business and Entrepreneurial Studies (ASBES 2011) Proceeding, p 473. [2014] 1 LNS(A) xx [16] Legal Network Series 32 Standing Committee of Officials of Consumer Affairs Working Party, Unfair Contract Terms - A discussion Paper, January 2004. [17] Section 5 Unfair Contract Terms Act 1977. [18] Note that this role has now been taken over by the Office of Fair Trading. [19] Regulation 8 Unfair Terms in Consumer Contracts Regulation 1994, Regulation 12 Unfair Terms in Consumer Contracts Regulation 1999. [20] Schedule 1, Unfair Terms in Consumer Contracts Regulation 1999, this includes, the Data Protection Registrar, the Director General of Electricity Supply, the Director General of Gas Supply, the Director General of Electricity Supply for Northern Ireland and the Director General of Gas for Northern Ireland. [21] Section 1 (1) Fair Trading Act 1973. [22] Section 1 (2) Fair Trading Act 1973. [23] Section 1 and 2 Enterprise Act 2002. [24] (2001) 3 WLR 1297 [25] The Director invoked his right to petition for the injunction under the Unfair Terms in Consumer Contracts Regulation 1994. [26] (2001) 3 WLR 1297 [27] Dean, M. Defining Unfair Terms in Consumer Contracts - Crystal Ball Gazing? Director General of Fair Trading v First National Bank plc, The Modern Law Review, Vol. 65, No.5 (Sept., 2002), p 774. [28] Regulation 3(2) Unfair Terms in Consumer Contracts Regulation 1994 [29] (2001) 3 WLR 1297 [2014] 1 LNS(A) xx Legal Network Series [30] Lord Steyn, paragraph 34, (2001) 3 WLR 1297 [31] Unfair Terms in Consumer Contracts Regulation 1994 [32] Lord Bingham, paragraph 17, (2001) 3 WLR 1297 [33] Lord Bingham, paragraph 20, (2001) 3 WLR 1297 [34] Unfair Terms in Consumer Contracts Regulation 1999. [35] Regulation 12, 1999 Regulations [36] Section 2 Enterprise Act 2002 [37] 33 Unfair contract terms guidance, Guidance for the Unfair Terms in Consumer Contracts Regulations 1999, Crown copyright 2008, p 8. http://www.oft.gov.uk/shared oft/business leaflets/unfair contract terms/oft143.pdf. Accessed 23/10/2013. [38] Section 213 Enterprise Act 2002 [39] Section 212, ibid. [40] [2009] UKSC 6 [41] In so far as it is in plain intelligible language, the assessment of fairness of a term shall not relate:(a) to the definition of the main subject matter of the contract, or (b) to the adequacy of the price or remuneration, as against the goods or services supplied in exchange. [42] [43] Lord Walker, para 47, [2009] UKSC 6. Groupon to change practices following OFT action, Press Release, 16 March 2012, 29/7/2013 http://www.oft.gov.uk/news-and-updates/press/2012/19-12. Accessed [2014] 1 LNS(A) xx Legal Network Series 34 [44] Ibid [45] Bannatyne Fitness Limited, David Lloyd Leisure Limited and Fitness First Clubs Limited. [46] Press releases 2013, Three gyms improve contract terms following OFT action, http://www.oft.gov.uk/news-and-updates/press/2013/21- 13. Accessed: 24/10/2013. [47] Bright, S. (2000), Winning the battle against unfair contract terms. Legal Studies, 20: p 335 [48] Ibid at p 342. [49] See http://www.oft.gov.uk/ [50] Zumbo, Frank (2008) Unfair Terms In Business To Business Contracts Involving Small Businesses: Exploring The Case For Reform, available at http://www.alta.edu.au/resources/PDFs/JALTA/2008/%282008%29%20Unfair%20T erms%20Involving%20Business%20to%20Business%20Contracts_F%20Zumbo.pdf . Accessed: 20/9/2013 [51] [52] http://www.accc.gov.au/consumers/contracts-agreements/unfair-contract-terms. Field, Chris [2004] The Death of Unfair Contract AltLawJl 8; (2004) 29(1) Alternative Law Journal 35, available at: http://www.austlii.edu.au/cgi- /sinodisp/au/journals/AltLawJl/2004/8.html stem=0&synonyms=0&query=unfair%20contract%20terms. Accessed: 25/9/2013. [53] [54] Commercial Bank of Australia Ltd v. Amadio (1983) 151 CLR 447. http://australia.gov.au/topics/economy-money-and-tax/consumer-protection. Accessed 26/9/2013 [55] http://www.accc.gov.au/consumers/complaints-problems/write-a-complaint- letter. Accessed 29/9/2013 [2014] 1 LNS(A) xx [56] Legal Network Series 35 http://www.accc.gov.au/consumers/consumer-protection/where-to-go-for- consumer-help. Accessed 1/10/2013 [57] http://www.legal.unsw.edu.au/factsheets/marketinglaw.html . Accessed 5/10/2013 [58] Ashurst Australia Recent developments in unfair contract terms, 30 April 2013 Competition Law News, available at www.ashurst.com/page.aspx?id_content=9071. Accessed 30/9/2013. [59] http://www.legal.unsw.edu.au/factsheets/marketinglaw.html . Accessed: 7/10/2013 [60] ACCC institutes proceedings against ByteCard Pty. Limited for unfair contract terms (22 April 2013) http://www.accc.gov.au/media-release/accc-institutes- proceedings-against-bytecard-pty-limited-for-unfair-contract-terms. Accessed: 5/10/2013 [61] Introduction to ACCC and AER Policy (2010) available at: http://www.apeccp.org.tw/doc/Australia/Policy/Introduction -Feb2012.pdf. Accessed: 10/10/2013 [62] HWL Ebsworth Lawyers Australian Consumer Law- Consumer Guarantees, 17 June 2011, available at http://www.cviaq.com.au/PDFs/Dealer%20Bulletin.pdf. Accessed: 10/10/2013 [63] ACCC joins NRM to Advanced Medical Institute proceedings and alleges unfair contract terms 7 September 2011. Available at: http://www.accc.gov.au/mediarelease/accc-joins-nrm-to-advanced-medical-institute-proceedings-and-allegesunfair-contract. Accessed: 15/10/2013. [64] Australian Competition and Consumer Commission v. ACN 117 372 915 Pty Limited (in liq) (formerly Advanced Medical Institute Pty Limited) (No 4) [2013] FCA 436. [2014] 1 LNS(A) xx [65] Legal Network Series 36 ACCC v. Bytecard Pty Limited (Federal Court, 24 July 2013, VID301/2013) [66] McClymont, K. and Reilly, T, ACCC in raid on sex spray company (20 Feb 2010)The Sydney Morning Herald online version available at: http://www.smh.com.au/national/accc-in-raid-on-sex-spray-company-20100219olzi.html. Accessed: 15/10/2013 [67] ACCC to sue Advanced Medical Institute Pty Ltd and AMI Australia H oldings Pty Ltd, available at: http://www.news.com.au/business/accc-to-sue-advanced-medical- institute-pty-ltd-and-ami-australia-holdings-pty-ltd/story-e6frfm1i1225975592880#ixzz2cIONHcXe, http://www.news.com.au/business/accc-to-sue- advanced-medical-institute-pty-ltd-and-ami-australia-holdings-pty-ltd/storye6frfm1i-1225975592880. Accessed: 21/10/2013. [68] Above, note 66. [69] Above, note 66. [70] Martine Phillips, King & Wood Mallesons, http://www.incompetition.com.au/2013/04/bytecard -is-the-first-to-get-bitten. [71] Uthmeyer, Simon et al. (2013) ACCC obtains its first unfair contract terms declaration: ACCC v. Bytecard Pty. Limited,Competition and Market Regulation Update (Australia) http://www.mondaq.com/australia/x/255956/Consumer+Trading+Unfair+Trading /AC CC+obtains+its+first+unfair+contract+terms+declaration+ACCC+v+Bytecard+Pty+ Limited. Accessed: 25/10/2013. [72] [2013] FCAFC 90. [73] Commercial Bank of Australia Ltd v. Amadio (1983) 151 CLR 447. [74] Allsop CJ, Gordon and Jacobson JJ. [2014] 1 LNS(A) xx [75] Legal Network Series 37 Dixon, K and Hartley, L (2013) ACCC v. ByteCard- ACCC Cracking Down on Unfair Contract Terms, available at http://www.addisonslawyers.com.au/knowledge/ assetdoc/c09ff3e1197265b1/ACCC%20v%20ByteCard%20 -%20ACCC%20Cracking %20Down%20on%20Unfair% 20Contract%20Terms.pdf. Accessed 1/11/2013. [76] Available at http://www.accc.gov.au/publications/unfair-contract-terms. Accessed: 1/11/2013. [77] Executive summary, ibid. [78] Ibid. [79] Kristy Dixon, Laura Hartley (2013) ACCC v. ByteCard-ACCC Cracking Down on Unfair Contract Terms, available at http://www.addisonslawyers.com.au/knowledge/ assetdoc/c09ff3e1197265b1/ACCC%20v%20ByteCard%20 -%20ACCC%20Cracking %20Down%20on%20Unfair%20Contract%20Terms.pdf. Accessed 2/11/2013. [80] Above, note 66. [81] The State regulators of the ACL are New South Wales Fair Trading; Consumer Affairs Victoria; Queensland Office of Fair Trading; WA Department of Commerce Consumer Protection; South Australian Office of Consumer & Business Affairs; Consumer Affairs & Fair Trading Tasmania; ACT Office of R egulatory Services and NT Consumer Affairs [82] Commonwealth of Australia 2010 Compliance and enforcement How regulators enforce the Australian Consumer Law, available at: http://www.consumerlaw.gov.au/content/the_acl/downloads/compliance_enforcemen t_guide.pdf. Accessed: 6/11/2013. [83] Introduction to ACCC and AER Policy (2010) available at: http://www.apeccp.org.tw/doc/Australia/Policy/Introduction -Feb2012.pdf. Accessed: 6/11/2013. [2014] 1 LNS(A) xx [84] Legal Network Series 38 Lithgow, P. Book Review of Consumer Law & Policy in Australia & New Zealand by Justin Malbon and Luke Nottage (eds) (The Federation Press, Sydney, 2013). Available at: http://www.federationpress.com.au/pdf/ABLR_2013.pdf. Accessed: 7/11/2013 [85] Including ACCA v. Advanced Medical Institute Pty Ltd [86] Now the Consumer Protection (Amendment) Act 2010 [87] Section 24C Consumer Protection (Amendment) Act 2010 [88] Section 24D Consumer Protection (Amendment) Act 2010 [89] Above note 9 at p 94 [90] Lord Brightman, Hart v. O'Connor [1985] AC 1000, p. 1017. (sourced from Saad Marwi v. Chan Hwan Hua & Anor [2001] 3 CLJ 98 ) [91] Above note 9 at p 94 [92] Preamble Consumer Protection Act 1999. [93] Lee M.P. and Detta, I. J. (2009) Business Law Oxford University Press, p 381. [94] Section 24A CPA 1999, as amended. [95] This amending legislation received Royal Assent on 8 September 2010 [96] Section 24A CPA 1999, as amended. [97] Sections 24(C) and (D) [98] Section 24C CPA 1999, as amended. [99] Section 24D CPA 1999, as amended. [100] Above note 15 at p. 475. [2014] 1 LNS(A) xx [101] Act Legal Network Series 39 Ramlel, A., & Chen, K, Y. (30 Oct 2012) ‘Consumer Protection (Amendment) 2010 Empowering Consumers, Undermining Retailers?’ available at: http://www.christopherleeco.com/wp3/?p=868. Accessed 10/11/2013. [102] Above note 15 at p. 476. [103] Alistaire (5 July 2010) Consumer Protection (Amendment) Bill 2010 deals with unfair contract terms, available at: http://readinglaw.wordpress.com/2010/07/05/consumer -protection-amendment-bill2010-deals-with-unfair-contract-terms. Accessed: 15/11/2013. [104] [105] Above note 15 at p. 481. Tribunal for Consumer Claims Malaysia website available at: http://ttpm.kpdnkk.gov.my/portal/index.php/en/. Accessed: 15/11/2013 [106] [107] Ibid. The National Consumer Complaints Center website available at http://www.nccc.org.my/v2/ [108] FOMCA’s accessed 5/12/2013. website, http://www.fomca.org.my/v3/index.php/about-fomca,