In DCZ Early Learning Pty Ltd v Semper Mortgage Management Pty Ltd [2024] QSC 120, DCZ Early Learning Pty Ltd, along with four individual applicants, sought a court declaration against Semper Mortgage Management Pty Ltd regarding unfair contract terms under the Australian Securities and Investments Commission Act 2001 (Cth). The applicants required an urgent loan to purchase part of a childcare business and entered into negotiations with Semper, resulting in the signing of an "Indicative Letter of Offer". The case focussed on whether certain boilerplate clauses (specifically clauses 8 and 9) in the agreement could be considered void due to their unfair nature. Semper's counterclaim sought fees totalling $150,620 for services rendered, which included several stipulated fees regardless of loan completion. Upon review, the court found that negotiation had indeed taken place between the parties, debunking the claim that the contract was of a purely standard form, and that clauses 8 and 9 were necessary to protect Semper's interests. Despite acknowledging an element of detriment to DCZ, the court did not find sufficient evidence of significant imbalance or that the fees were beyond reasonable industry practice. The application by DCZ was dismissed, and judgment was entered in favour of Semper for its counterclaim.
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