The Federal Court declared that 38 contract terms used in contracts entered into by Fujifilm Business Innovation Australia or Fujifilm Leasing Australia (together, Fuji) with thousands of small businesses are unfair, deeming those terms void and unenforceable.
Fuji has been ordered to stop enforcing these terms in current small-business contracts and to cease using these terms for the next five years.
The orders apply to 11 types of standard form contracts Fuji entered with small businesses for printers and related software. The unfair contract terms included terms providing for automatic renewal, excessive exit fees and unilateral price increases.
The decision is the outcome of court action initiated by the Australian Competition and Consumer Commission (ACCC) in October 2020. The matter came to the ACCC’s attention via complaints from small businesses, including a complaint from the Australian Small Business and Family Enterprise Ombudsman, concerning standard form contracts used across the printing industry more generally.
“We took this court action because Fuji’s unfair contract terms allowed this large company to leverage the significant power imbalance between it and small business customers to impose unnecessary and unjustifiable terms on these businesses,” ACCC Deputy Chair Mick Keogh said. “Fuji’s unfair contract terms were imposed on many small businesses who had signed contracts containing these terms, and Fuji took action, including litigation, to enforce these terms.
“We continue to strongly advocate for law reform to prohibit unfair contract terms and enable the Court to impose penalties in cases where such terms are imposed and enforced against small businesses, as here, or consumers,” Keogh added.
The orders apply only to contracts entered into with small businesses, which are businesses employing fewer than 20 staff.
Since November 2016, Fuji has entered into or renewed approximately 34,000 contracts, the vast majority of which were made using the standard form contracts at issue in this case. Many of those contracts are still in force. It is not known how many of these contracts were with small businesses, although it is likely this is a substantial number of these contracts.
Under the Court orders, Fuji is obliged to contact current customers with relevant contracts and ascertain if they are small businesses and make them aware of the orders. Fuji must also publish information about these orders on its website. Fuji was also ordered to implement a compliance program and pay part of the ACCC’s costs.
Fuji on their part admitted that these terms were unfair, and consented to the declarations and other orders made by the Court.
