Guy Forsyth as trustee for Endure Trust Trading as Alignity Consulting v Finite Group APAC Pty Ltd ACN 085 406 300 Trading as Finite Recruitment (Appeal)

In the matter of Guy Forsyth as trustee for Endure Trust Trading as Alignity Consulting versus Finite Group APAC Pty Ltd ACN 085 406 300 Trading as Finite Recruitment, the Tribunal is considering an appeal brought by Alignity Consulting against a decision made by the original Tribunal. The original Tribunal had rejected Alignity's application, finding that Finite Group APAC Pty Ltd (Finite) was entitled to terminate its contract with Alignity Consulting based on a special condition outlined in their contract. Alignity contested this decision, arguing that the special condition was ambiguous and that Finite's termination was not in accordance with the principles of good faith and fair dealing.

The legal issues before the Tribunal involved the interpretation of the special condition in the contract between Finite and Alignity, which stated that Finite could terminate the contract for convenience if provided with 10 business days’ notice by IBM, their client. Alignity contended that this clause was invalid due to a breach of the privity of contract, and that Finite was required to act in good faith. Alignity also argued that the special condition was an unfair term under the Australian Consumer Law and should therefore be void.

The Tribunal found that the special condition did not breach the principle of privity of contract and was a valid clause within the contract between Finite and Alignity. The Tribunal also held that Finite's termination of the contract was not in breach of any obligation to act in good faith. Regarding the fairness of the special condition, the Tribunal determined that while it was not transparent and may cause detriment to Alignity, it did not create a significant imbalance in the parties’ rights and obligations and thus was not void as an unfair term.

The Tribunal dismissed the appeal, affirming the original Tribunal's decision. The Tribunal's reasoning hinged on the validity of the special condition in the contract, the lack of breach of good faith, and the assessment of the fairness of the term under the Australian Consumer Law. Consequently, the Tribunal upheld the termination of the contract by Finite as lawful and justified under the terms agreed upon by the parties.