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Hiring a photo booth: consumer rightsA guide by Dotto

Settled before the curtain closes · 3 of 3

Cancellation terms in a standard form hire agreement

A hire agreement written in advance by the business and offered as it stands may be a standard form contract, and the law on unfair terms reaches into it. Only a court can find a term unfair.

A photo booth drawn from the front, its curtain hung about 70 per cent of the way across the opening, with disc 3 lit on the panel above. 123
Ring three. Before anyone sits down: the small print about cancelling.

Under section 23 of the Australian Consumer Law, a term of a consumer contract is void if the term is unfair and the contract is a standard form contract; the contract, if it can run without that term, goes on binding the parties. From 9 November 2023, the ACCC says, a business may not propose an unfair term for a standard form contract, use one, or rely on one: doing so is banned, and breaches carry penalties. Whether any particular cancellation fee, deposit or date-change term is unfair is a question only a court can decide, and this guide does not answer it.

General informationDotto is not an event supplier. It does not offer, hire out, supply, deliver, staff or arrange photo booths. This is general information, not advice.

The ACCC publishes the official guidance on unfair contract terms; individual complaints are managed by each state and territory’s consumer protection agency.

Is the hire agreement a consumer contract?

Section 23(3) defines a consumer contract as a contract to supply goods or services, or to sell or grant an interest in land, where the individual acquiring them does so wholly or predominantly for personal, domestic or household use, or for consumption.

The same section reaches small business contracts. Under section 23(4), at least one party must meet one or both of two tests: it is carrying on a business when it makes the contract and has fewer than 100 employees at that time, or it had a turnover under $10,000,000 in the most recent income year ending by the time of the contract. Those figures are as the Act read in its compilation of 16 September 2026, the text used for this guide.

Is it a standard form contract?

Consumer Affairs Victoria describes a standard form contract as one that one party prepares and the other has little or no room to bargain over, so that it is put forward on a ‘take it or leave it’ basis. Where one party claims the contract is standard form, section 27 presumes that it is, unless another party proves otherwise.

In deciding the question, a court must weigh several matters, and the Act’s list begins with these:

  • which side holds most or all of the bargaining power;
  • whether the party that drew it up has used the same or nearly the same terms in other contracts it prepared, and how often;
  • whether one party had it ready before the two sides discussed the deal at all.

Section 27(3) adds that a chance to negotiate changes of minor or insubstantial effect, or to choose among options the other party laid down, does not stop a contract being found standard form.

The three limbs of the test

A term is unfair under section 24(1) if it meets all three of these limbs.

  1. Imbalance. It would tip the parties’ rights and obligations under the contract into significant imbalance.

  2. Not needed. It goes beyond what is reasonably necessary to protect the legitimate interests of whichever party it favours. The Act presumes this limb is met unless that party proves otherwise.

  3. Detriment. Applying or relying on it would cause a party detriment, financial or not.

A court may weigh whatever it thinks relevant, but it must look at how transparent the term is and at the contract as a whole (section 24(2)). In section 24(3), a term is transparent when it is:

  • written in reasonably plain language;
  • legible;
  • clearly presented;
  • readily available to any party it affects.

The Act’s own examples

Section 25 gives examples of the kinds of terms that “may be unfair”. Among them: a term letting one party, and not the other, avoid or limit its performance, end the contract, or change its terms; and a term that penalises one party, and not the other, for a breach or for ending the contract. The list goes on past these in the Act, and a term on it is an example of what may be unfair, not a finding that it is.

What the test leaves alone

Section 26 keeps the unfair terms rule away from a term to the extent that it defines the main subject matter of the contract or sets the upfront price payable, among other cases. The upfront price is the consideration for the supply that is disclosed no later than the moment the contract is made, and it leaves out any other consideration that depends on whether a particular event happens (section 26(2)).

This guide does not say how that line falls for any particular fee in any particular agreement.

If a court finds a term unfair

A term a court decides is unfair is void, the ACCC says: it stops applying to the parties, and if the rest of the contract can carry on without it, the rest still applies. Consumer Affairs Victoria says any party to the contract can apply to a court for that decision.

Since 9 November 2023

The ACCC dates its changes to the law on unfair contract terms to that day, and says: “The changes apply to:”

  • “standard form contracts made or renewed on or after 9 November 2023”
  • “a term of a contract that is varied or added on or after 9 November 2023.”

Section 23 now makes it a contravention to propose an unfair term in a standard form consumer or small business contract a person makes, and a separate contravention to apply or rely on one, or to purport to (subsections (2A) and (2C)).

Before a contract is accepted, the ACCC’s guidance to consumers is to read and understand its terms and conditions, and to talk to a lawyer about any that are not understood.