Can a removal company’s contract limit what it pays for damage?

What the Act guarantees. Section 60: “If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.” The NSW Government’s plain reading of the service guarantees: the service must be provided with due care or skill, taking all necessary steps to avoid loss and damage; it must be fit for any specified purpose, which can be express or implied; and it must be provided within a reasonable time where no time is set. What is reasonable depends on the nature of the service, the difficulty of the task, and other factors such as busy periods and public holidays. Consumer Protection WA applies it to this trade directly: a removalist has to take due care and skill, doing everything possible to stop damage or loss, and if that duty is not met, the consumer has a right to claim compensation. These guarantees reach a consumer’s household move: the transport or storage exclusion in section 63 is for goods carried for a business, and it does not apply where the consignee of the goods is not carrying on a business in relation to them.

The rule that protects the guarantee. Section 64 makes a term void to the extent the term purports to exclude, restrict or modify, or has the effect of excluding, restricting or modifying, the application of the guarantees, the exercise of a right conferred by them, or any liability for a failure to comply with them. The ACCC puts the same point in shorter form: businesses cannot take away a consumer’s right to a refund or replacement for faulty services, it is illegal for a business to rely on store policies or terms and conditions that deny those rights, and it is misleading and against the law for a business to say that it is not responsible for the foreseeable losses a consumer suffers from using its service.

Why section 63 matters here. It is the one place in the services guarantees that names transport and storage of goods. The subsection excludes contracts for or in relation to the transportation or storage of goods for the purposes of a business, trade, profession or occupation carried on by the person for whom the goods are transported or stored, and contracts of insurance. The carve-back in subsection (2) is the sentence a household move rests on. Both are set out whole below.

Read for a household. Section 63(1)(a) carves out from the services guarantees a contract for or in relation to the transportation or storage of goods for the purposes of a business, trade, profession or occupation carried on by the person for whom the goods are transported or stored. Section 63(2) then says, to avoid doubt, that the paragraph does not apply if the consignee of the goods is not carrying on or engaged in a business, trade, profession or occupation in relation to the goods. So a household move, and a household’s goods held in a removal company’s storage, do not fall under that exclusion: the guarantees that apply to services, including the guarantee of due care and skill and the rule that a term cannot exclude them, apply to the move. What the Act does not do is put a dollar figure on any of it, and the reading here goes no further than the section does.

What the reading does not say. It does not say a removal company must carry insurance: insurance contracts sit under section 63(1)(b) of the exclusion, and the NSW Government says a removalist is not required by law to insure your property, which is why the cover is yours to arrange. It does not decide whether any particular clause is unfair: the ACCC says only courts can make final decisions about whether a contract term is unfair, and that it does not resolve individual disputes about whether the consumer guarantees have been met or what the remedy is. And it does not change the body that hears a dispute: that is where the complaint guide comes in.

A second rule stands beside section 64. Under section 23 of the Act, a term of a consumer contract or small business contract is void if the term is unfair and the contract is a standard form contract, and the contract continues to bind the parties if it is capable of operating without the unfair term. A consumer contract is one for a supply of goods or services to an individual whose acquisition is wholly or predominantly for personal, domestic or household use or consumption, which is the shape of a household removal. Section 23 does not apply to a term, to the extent and only to the extent, that the term defines the main subject matter of the contract or sets the upfront price, so the agreed price itself is not caught by the rule. A term is unfair if it would cause a significant imbalance in the parties’ rights and obligations, it is not reasonably necessary to protect the legitimate interests of the party advantaged by it, and it would cause detriment if applied or relied on. The ACCC says the changes to the law on unfair contract terms came into effect on 9 November 2023, and apply to standard form contracts made or renewed on or after that date, and to a term of a contract that is varied or added on or after it.

The examples that matter for a removal contract. The Act’s own list of terms that may be unfair includes one that permits, or has the effect of permitting, one party but not another to avoid or limit performance of the contract; to terminate it; to penalise the other for a breach or termination; to vary the terms; or to limit one party’s right to sue another. The ACCC’s guide adds the shape to watch: terms that allow one party but not the other to avoid or limit their responsibilities, to penalise one party for breaching or ending the contract, or to change the terms. Consumer Affairs Victoria’s summary of the national law includes terms that limit a party’s rights to sue and terms that avoid or limit liability for negligence, and it records that a term found unfair is treated as if it never existed, with the contract still binding if it can operate without it. The ACCC guide also carries a removalist case study from 2009, decided under Victoria’s Fair Trading Act 1999: a term letting the removalist company assign its rights to collect all charges and payments from clients was unfair under that Act.

Where a claim goes, and its clock. Where conduct contravened a provision of Chapter 2 or 3 of the Act, section 236 lets the claimant recover the amount of the loss or damage by action against the other person, or against any person involved in the contravention, and an action under that section may be commenced at any time within 6 years after the day on which the cause of action that relates to the conduct accrued. For a failure to comply with a guarantee, the consumer may, by action against the supplier, recover damages for any loss or damage suffered because of the failure if it was reasonably foreseeable (s 267(4)). The 6 years is section 236’s period. In NSW, NCAT says that for consumer claims you must apply within 3 years of when the cause of action accrued, and the goods or services must have been supplied to you within 10 years. Under section 23, an unfair term of a consumer contract that is a standard form contract is void, and only a court can decide if a term in a consumer contract is unfair. Consumer Protection WA’s line on the contract is the practical one: a contract that says the company takes no responsibility for damage or loss should be reported to the agency, and the complaint guide sets out each state and territory body, its powers and its page.