Company or individual details
- 101 Residential Pty Ltd143 293 190
The Australian Competition and Consumer Commission (ACCC) has accepted a court enforceable undertaking pursuant to section 87B of the Competition and Consumer Act 2010 (CCA) from 101 Residential Pty Ltd (101 Residential) relating to its standard home building contract (Building Contract).
101 Residential is a home building company. It is part of the Scott Park Group which includes residential building and other home building trade businesses in Perth, Western Australia.
Between October 2014 and August 2017, 101 Residential included clauses in an annexure to its Building Contract that permitted it to prohibit consumers from publishing or disseminating unapproved information or material, such as online reviews (Non-disparagement clauses). The ACCC considers that the Non-disparagement clauses are likely to be unfair contract terms within the meaning of sections 23 and 24 of the Australian Consumer Law (ACL), being schedule 2 to the CCA.
Between October 2014 and August 2017, 101 Residential also included in an annexure to its Building Contract a clause which seeks to exclude it from any liability for damages or compensation for distress or inconvenience, or any loss of profit, loss of use or any indirect or consequential loss whatsoever (Liability clause). The ACCC considers that the Liability clause is inconsistent with the statutory guarantees automatically provided to consumers under the ACL, and is likely to amount to a false or misleading representation concerning the existence, exclusion or effect of any right or remedy in breach of section 29(1)(m) of the ACL.
Between October 2014 and August 2017, 101 Residential also stated in an annexure to its Building Contract that the annexure is based on a Housing Industry Association (HIA) standard building form, when that is not the case (the Statement). The ACCC considers that the Statement may be a false or misleading representation that the contents of the annexure, including the Non-disparagement and Liability clauses, have HIA approval when this is not the case, is in breach of section 29(1)(h) of the ACL.
101 Residential has admitted that the Non-disparagement clauses may be unfair contract terms and that the Liability clause and the Statement were likely to be false or misleading. 101 Residential provided the ACCC with a section 87B undertaking to:
- Remove the Non-disparagement and Liability clauses and the Statement from its future contracts
- Not enforce or rely upon either the Non-disparagement or Liability clauses in current contracts
- Publish a corrective notice on the 101 Residential website
- Issue a corrective consumer letter to all affected consumers
- Refund affected consumers
- Establish and implement an ACL Compliance Program.