Tribunal rules Brindabella Christian College enrolment contract was unfair

Brindabella Christian College argued that a couple who pulled their children from the school at the end of 2019 had breached a clause in the contract which stipulates that a full-term's notice in writing was required to withdraw a child.

The contract stated that if notice was received after the first day of term the parents were liable for the fees for that term and the subsequent term in lieu of notice.

The school claimed the parents owed $3785.20 plus costs and interest for term 1, 2020, as they gave notice in term 4 in 2019 that the students would not return the following year.

The parents, who cannot be named to protect the identity of children, argued the notice term was unfair as the school was able to unilaterally change essential terms of the contract, such as fees, without giving parents an opportunity to withdraw their child without a financial penalty.

The school argued that the contract did not fall under the definition of a standard form contract under consumer protection laws and that the notice term would not cause a significant imbalance in the parties' rights and obligations.

It argued that parents' rights were favoured because they could terminate the contract "for convenience".

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Senior Member Elspeth Ferguson found that the enrolment contract was a standard form contract which was covered by consumer law.

She found that the notice period was not reasonable or necessary to protect the interests of the school and that parents would suffer as a result.

"If the notice term were relied upon the parent would suffer detriment because they would be required to pay school fees for a service that they neither wanted nor received," Senior Member Ferguson said in the decision.

Senior Member Ferguson found the notice term that the school relied on to pursue the parents for unpaid fees was void because it was unfair under consumer law. She dismissed the school's application.

Brindabella Christian College was contacted for comment.

The school will have the right to appeal within 28 days of the decision.

The landmark decision follows a number of similar cases brought to the tribunal where the same school demanded fees in lieu of a term's notice.

Brindabella Christian College won in the previous cases and parents were required to pay the fees.

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