Advice on friends problem

[sprjenkins]

Ok, its the responsibility of the stronger party, in this case telstra, to inform the weaker party of any onerous terms in the contract, the terms being the excessively high fee for WAP usage.

If you can prove this, and make a reasonable case that the details of WAP usage was an onerous term of the contract then you may have a case and the contract will not be binding.

It used to be that the signature on a contract was the only factor and buyer beware but this was overturned in Lestrange vs Graucob for anyone seriously interested.

The law now focuses on consumer protection. If you can show that you had no way of knowing about the WAP usage fees then you will probably win.

Go speak to a lawyer that focuses on contract law, they will be able to tell you in ten minutes whether you can fight it in court.

[sprjenkins]

What the courts use to determine what is an onerous term is what a reasonable person would think if in that situation.

In this case you could argue that because you weren't charged for the first months usage of the WAP, and you had no way of knowing that you would be charged otherwise, that it would be reasonable in that situation to assume that it was free.

Therefore it was onerous for Telstra to charge you for WAP, without first notifying you that it would do so.

Telco's aren't stupid, they do things like this because more people just pay up then fight it. A good lawyer should just be able to make a quick phone call to Telstra and make it go away if you have a case.

[sgt_doofey]

Originally Posted by Outbackjack

Is there still such a thing as the telecomunication ombudsman?? That is where I would be heading.

http://www.tio.com.au/

Would probably be the best place to start. That way he can relate his story and find out what his best plan of action is.

[cArSiK]

Originally Posted by Danny

It's a very expensive ****. Thats for sure...

bwwwwhahahhaahahahahaah thats GOLD!!!!!!!!!!! :

[pecker73]

Originally Posted by Danny

It's a very expensive ****. Thats for sure...

Hell Yeah...$11k

Must have been walking around with a woody for a week !! : : :

[EA2BA]

The phone call and setup would have been recorded so to prove he understood exactley what he was getting, I doubt he has much recourse to get out of paying the bill, he cant enter an arrangement to pay it off, but at the end of the day the Telco would have had to buy the service he used so it has cost them money, even at half that they would still be out of pocket if they wiped the debt.

I highly doubt they are going to say oh sorry about that you didnt reliase here let me wipe that for you.

Some arguement could be made that a new customer should have been notified earlier as to the usage on the phone and possible ability to pay the impending bill, but I don't see this as much of an arguement at the end of the day.

I might be wrong but I thought they needed to send a Product Disclosure to the client?

So the Telco say they did send it, he never followed up on not receiving it then, ignorance is unfortunately no excuse.

[merlin]

I hate how people take these things to A Current Affair - and then they play the evil music whilst talking about the "big bad corporations" and hash quotes together. Then all the bogans and geriatrichs at home jump up and down and yell "bloody rip off, corporate greed!" ect.

Funny that the only person to blame is your friend who didn't read the contract, and ASSUMED that he could just download endless gigabytes for nothing. I mean c'mon when does common sense prevail, and we say hey it was this guys fault not Telstra. Telstra is a business whos goal is to make a profit - they have very limited responsibilities in telling dumb people how to manage their money.

Having said that I think you perosnally have a very good attitude to the situation and just want to help out a mate so no offense meant. All he can do is speak directly to a manager and try and negotiate a solution, if that fails seek legal advice though I doubt there is any avenue to pursue there.

[MotherNatureVer2]

Originally Posted by cArSiK

Hmm you answered the $11,000 question right there - "He assumed". Expensive mistake but im sure Telstra will come to some arangement with him...Great time for telstra inverstors I say :hihi:

James

You dont have to assume with that company .... Been there done that STILL going through it .... not that amount though ......

[sprjenkins]

Originally Posted by EA2BA

The phone call and setup would have been recorded so to prove he understood exactley what he was getting, I doubt he has much recourse to get out of paying the bill
I highly doubt they are going to say oh sorry about that you didnt reliase here let me wipe that for you.

Some arguement could be made that a new customer should have been notified earlier as to the usage on the phone and possible ability to pay the impending bill, but I don't see this as much of an arguement at the end of the day.

So the Telco say they did send it, he never followed up on not receiving it then, ignorance is unfortunately no excuse.

As I said further up the page, it doesn't matter if he got the contract or not, that is not of importance. What is of importance is what was in the contract, if he was made fully aware of any possibly onerous terms and whether he had the capacity to fully understand it.

It is the responsibility of Telstra to prove that he fully understood, not the other way around. From what was said in the first post, the guy on the phone was vague and misleading.

Seriously, I didn't go to uni and study contract law for nothing guys, read the posts, if what he stated in the first post was true, on the face of it it sounds like he has a good case.

[XCSEDAN]

get him to go to slater and gorden, they know what they are doing, and theres that no win no fee policy, i rekon they will find a loop hole, especially if theres advertising/money in it for them....
i really feel dorry for your mate, but how the hell could you sign up to a deal over the phone?
has he received a written contract or disclosement statement of any kind?

[Tiga_EL]

Basically hes screwed. Simple rule is nothing is ever free in this world, especially not phone contracts which are offered to you by FOB's.