If you’ve opened a business account with PayPal Australia in the last few years, it might be worth checking your statements to see if you’re entitled to a refund.
The NSW Federal Court has ordered the company not to enforce a contract term that it had been relying on to avoid repaying fees it had charged some small businesses in error.
The term that PayPal Australia had been seeking to enforce would have allowed it to retain the overcharges if its small business clients didn’t notify them of the error within 60 days of it appearing on their statements.
The Australian Securities and Investment Commission (ASIC) bought the case against PayPal in the NSW Federal Court late last year. The regulator said in a statement and filings that the judgement affected small businesses that opened a PayPal Business Account between 21 September 2021 and November 2023.
As of June 30, 2023, PayPal had over 600,000 small business clients, the regulator added.
“de facto” obligation
Federal Court Justice Mark Moshinsky found that the term was unfair in that it imposed a “de facto” obligation on PayPal’s small business clients to discover whether the payments provider had correctly charged them. He found that that PayPal Australia was better placed to identify the errors and calculate any refunds.
Small business customers would have had difficulty identifying the incorrect charges due to the way that PayPal Australia described and calculated its fees, he found.
Lacking transparency
Justice Moshinskyn also rasied concerns about the level of transparency PayPal’s terms and conditions, writing in his judgment.
“In the present case, having regard to the nature of the term and the length and complexity of the documents, and the fact that the term was not highlighted or otherwise drawn to the attention of the User, I consider that it was, to some extent, lacking in transparency,” he wrote.
Term unenforceable
The ruling means that PayPal Australia won’t be able to rely on the its contract terms to avoid repaying the overcharges should an eligible small business come knocking to claim them.
ASIC Deputy Chair Sarah Court said that the decision “serves as a reminder to all businesses that unfair contract terms contained within standard form contracts with small businesses will not be tolerated, and that ASIC will take decisive action where appropriate to protect the rights of consumers and small businesses”.
The court ordered PayPal Australia to pay ASIC’s legal costs.