New disclosure obligations for NSW businesses and intermediaries

New dis­clo­sure oblig­a­tions are now in place which will change the way NSW busi­ness­es (includ­ing inter­me­di­aries such as agents and bro­kers) com­mu­ni­cate to their cus­tomers before com­plet­ing a sale. The oblig­a­tions aim to improve trans­paren­cy for con­sumers with­out over­ly bur­den­ing busi­ness­es.

The new oblig­a­tions that came into effect 1 July 2020 require busi­ness­es to dis­close:

• terms or con­di­tions of con­tracts that sub­stan­tial­ly prej­u­dice the cus­tomer.
• if they have com­mis­sion or refer­ral arrange­ments with anoth­er sup­pli­er.

What changes do I need to be aware of?

Busi­ness­es

Before sup­ply­ing goods or ser­vices, a busi­ness must take rea­son­able steps to make cus­tomers aware of terms and con­di­tions that may impact con­sumers. This includes at least the fol­low­ing:

• lim­it the lia­bil­i­ty of the sup­pli­er
• pro­vide that the cus­tomer is liable for dam­age to deliv­ered goods
• per­mit the sup­pli­er to pro­vide data about the cus­tomer, or data pro­vid­ed by the cus­tomer, to a third par­ty in a form that may enable the con­sumer to be iden­ti­fi­able by the third par­ty
• require the con­sumer to pay an exit fee, a bal­loon pay­ment, or oth­er sim­i­lar pay­ment.

Inter­me­di­aries (i.e. agents, whole­salers, dis­trib­u­tors and retail­ers) 

Inter­me­di­aries must also take rea­son­able steps to make cus­tomers aware of any com­mis­sion or refer­ral arrange­ments where the busi­ness receives a finan­cial incen­tive from anoth­er sup­pli­er.

Mean­ing, cus­tomers will need to be informed that an arrange­ment exists, how­ev­er inter­me­di­aries do not need to dis­close the nature or val­ue of the finan­cial incen­tive.

Con­sumers

Con­sumers should be aware that these changes are now law, although an edu­ca­tion­al rather than enforce­ment approach will be adopt­ed for the first six months (1 July 2020 to 1 Jan­u­ary 2020).

 

What busi­ness­es will be most impact­ed?

The oblig­a­tions aim to improve trans­paren­cy for con­sumers with­out over­ly bur­den­ing busi­ness­es.

Exam­ples of busi­ness­es that will be affect­ed by these new oblig­a­tions will include banks and lenders, real estate agents, telecom­mu­ni­ca­tion com­pa­nies, etc.

Real estate agents in par­tic­u­lar may need to con­sid­er whether they are required dis­close any arrange­ments relat­ing to com­mis­sion or refer­ral arrange­ments.

 

How do I action these changes?

Busi­ness­es and Inter­me­di­aries are expect­ed to take rea­son­able action to inform con­sumers of these terms and con­di­tions. The best way to do this is to be clear, upfront and auto­mat­ic by draw­ing consumer’s atten­tion to the terms and con­di­tions and pro­vid­ing an expla­na­tion.

Exam­ples of how a busi­ness or inter­me­di­ary might dis­close this infor­ma­tion include:

• pro­vide a sum­ma­ry on the first page of a con­tract
• when online, infor­ma­tion can appear on the screen in a clear for­mat
• to dis­close refer­ral com­mis­sions, include this infor­ma­tion on quotes
• put an auto­mat­ic dis­claimer on emails

For more infor­ma­tion and FAQs go to the NSW Gov­ern­ment Fair Trad­ing web­site.

 

At Dono­van Oates Han­naford, busi­ness Law is our pas­sion. We are busi­ness own­ers and as a firm we have worked with busi­ness peo­ple in our local com­mu­ni­ty for over 70 years; pro­vid­ing them with advice to pro­tect their com­mer­cial invest­ments. Con­tact us today if you require legal busi­ness sup­port.

(Source: NSW Gov­ern­ment Fair Trad­ing)