T&Cs High Court Decision
Have you updated an app on your phone recently? Did you read the terms and conditions before clicking “I accept”? We probably all do it from time to time. We tick a box on a form, or click a box on a website, to accept terms and conditions without actually reading them.
The recent decision of McCarthy v Christchurch Canterbury Marketing Ltd serves as a timely reminder that we will be bound by terms and conditions we accept even if we haven’t read them.
The concerned a contractual relationship between Mr McCarthy and Canterbury Marketing Limited (“CCM”) that began when Mr McCarthy signed what he referred to as a one page membership form. Mr McCarthy filled out various details in the form and ticked a box confirming he accepted CCM’s terms and conditions of membership.
Mr McCarthy said he was never provided with a copy of CCM’s full terms and conditions of membership. He disputed he was subject to those terms and conditions. Mr McCarthy said he considered the terms and conditions which were referred to on the form he signed to only be those set out on the single page document which included the amount of commission to be paid. He maintained these were the only terms and conditions which he had accepted.
The High Court did not accept Mr McCarthy’s stance that the terms and conditions related only to the form itself because it was clearly a form he was required to complete and did not stipulate terms and conditions. The Court considered the reference to terms and conditions could only have been to those which would regulate Mr McCarthy’s “membership”, and therefore the contractual relationship between the parties.
The Court held Mr McCarthy should not have ticked the box indicating that he had read and agreed to the terms and conditions if he was not prepared to be bound by them. Mr McCarthy could not rely upon his failure to inquire or seek to read the applicable terms and conditions to assert he was not bound by their content.
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