The test of unfairness under the UTCCR also considers whether there is a significant imbalance in the rights and obligations of the parties to the detriment of the consumer.
The good faith element of the test for an unfair term in the UTCCR was not included in the UCTL, largely due to continuing uncertainty over the function and meaning of the duty of good faith under both this regime (59) and contract law generally.
The UTCCR require that the imbalance in the rights and obligations of the parties under the contract be to the detriment of the consumer, (77) whereas the UCTL uses a more general reference to 'detriment ...
The UTCCR and the FTA also contain provisions relating to transparency.
The inclusion of good faith in the test for unfairness under the UTCCR might suggest that this regime is primarily concerned with matters of procedural fairness.
(42) See UTCCR reg 5(I), which provides that the regulations apply only to contract terms that have not been individually negotiated.
(51) Thus, the decision in Office of Fair Trading v Abbey National plc 1 All ER 667 that bank charges were excluded from review under the UTCCR, may not be followed in Australia.
(59) In relation to the UTCCR, see Bright, above n 8, 347-50; Hugh Beale, 'Legislative Control of Fairness: The Directive on Unfair Terms in Consumer Contracts' in Jack Beatson and Daniel Friedmann (eds), Good Faith and Fault in Contract Law (1995) 231, 242-6.
This list is based on both UTCCR sch 2 (which provides 'an indicative and nonexhaustive list of the terms which may be regarded as unfair': reg 5(5)) and FTA s 32X (which provides a list of factors that a court or tribunal may take into account in determining whether a term is unfair).