While the ANZ and other Bill Express creditors and stakeholders are, I suspect, working through the weekend on a restructure for the business, Newsagents are looking at how they can get out of their Bill Express contract and the associated lease for the equipment Bill Express installed in newsagencies.
When newsagents signed on for Bill Express, they signed up to pay $495 a month for four years to get access to equipment worth around $3,000. This was a nice earner for the company – having newsagents provide working capital for their under-capitalised business.
While the two agreements newsagents are with separate entities and cover separate functions, I would have thought that newsagents could have them considered as one since one relies on the other and they are with related parties. If this is the case, the contract (the two agreements) could be challenged, in my view, on several fronts:
- Outage. The level of network outage over the last two months has been unacceptable. Not being even able to process eftpos means customers go elsewhere and impedes our ability to drive revenue and fund lease/rental payments on the equipment (which is not working).
- Product unavailability. Optus has often been out of stock over the last six weeks. With Optus being the top selling mobile recharge brand, newsagents not having stock disadvantages their businesses. The lack of performance of Bill Express on this ought to, of itself, be grounds for challenging both agreements.
- No customer service. Bill Express / Dialtime help desk people are never available and do not return phone calls. This lack of support means individual newsagent outages are prolonged and these limit our ability to achieve revenue necessary to service the rental/lease agreement.
- Ad screen failure. My Mi_Systems ad screen and many others are not working and the company does not respond to requests to get them active. The outage of this screen is denying me a revenue opportunity and therefore impedes our ability to service the rental/lease agreement.
- No marketing. In February, when announcing the removal of the subsidy, Bill Express committed to using around 30% of what they should have paid for bill payment commission to better market the service on behalf of the network. I have seen no such activity. This makes me a creditor of Bill Express along with thousands of newsagents.
Given the near collapse of the company and its services over the last six weeks I suggest that Bill Express is incapable of performing under the terms of the Bill Express / Dialtime agreement and that this failure is grounds for terminating the TBS equipment leasing agreement.
But I am no lawyer. These are issues lawyers ought to be considered by lawyers along with other matters relating to how 3,500+ newsagents got into this mess in the first place.
That looks like the sort of stuff that is need to push for a decision that the contract is broken by Bill Express.
The detail will be as to whether there are references in the contracts that set KPIs for supply and repair?
I personally, with no legal background, feel that if it can be proven that BE are in the wrong, then the contract is broken and the payments can be stopped.
By them stopping a subsidy that was apparently implied and by word of mouth is not a strong legal stance to stop the payment to them each month.
Good on you Mark, this is good factual material to start working around, just in my opinion.
I really hope someone has a breakthough soon, as I would then see all the contracts falling over like dominoes.
Mark, you are spot on, thats why I unplugged my system 5 weeks ago and stopped all authorities for direct debits with my bank.
They don’t have a leg to stand on and they know it.
Everyone should do as I have done. How can anyone keep paying them while taking group action against them is beyond me. Each month they have more of your money and then if you win you will not be able to get it back because they are not financial. Unplug your systems. If they take legal action against anyone of us we will all appear as witnesses to all the breaches you mentioned.
I agree, I have stopped the direct debit last week and also lodged a complaint with the ACCC.
My legal advice says that we have a good chance, as my contract states that we would receive a rebate for the Advertising screens.
ANF /VANA advice to keep paying in the hope that Bill Express fall over, but the rental company will want its payments regardless.
If BE aren’t in breach now, how will the fact that they go into administration/liquidation make a difference.
I like many followed the flock when I signed the contract with BE, but I have learnt my lesson.
Can someone please advise the contact details for NANA as I think $495.00 is a bargain to help tackle these corporate bullies?
Hi, Helen.
NANA contact details are
nana@nana.com.au
Tel: 02 97440400
Fax: 02 97440676
Level 1, 36-38 Victoria St(East)
Burwood NSW 2134
I have joined the legal action organised by NANA, and I called NANA last week. They told me the barrister representing newsagents has already asked the solicitor to prepare the files. Once files are ready, the barrister is going to lodge the files to the court and the court hearing would start in approximately four weeks time. I strongly believe newsagents can win on this case. Because I believe a fair go in this country. As Australians, we won’t put up with a big rip-off like this. We are going to fight and win.
I have meeting with NANA in two occation. The NANA people, unlike other associations I could name, are all newsagents just like you, me. NANA are not trying to make money out of us, the $495.00 goes into a TRUST account, held by the lawyers. (your solicitor could explain more fully what a trust account is)
The TRUST ACCOUNT is for the sole purpose of fighting BXP.
Trust accounts are bound by strict rules and procedures.
NANA’s motivation for encouraging us to join them is simple. The more people who join, the less the cost will be to each newsagent.
As with all trust accounts of this type, any money left over will be sent back to the contributors.
If NANA were just out to use this situation for their own gain, they would be forcing us to become members before we could join their class action. This is what ANF appear to be doing.
At no time were we asked to become members.
This whole thing is about one thing and one thing only: bill express.
The law firm NANA are using have a good record and are very experienced in this field.
They have won several cases for newsagents.
Am not a newsagent (but a sub-newsagent) and have phoned Nana to ask if I could join their class action….unlike ANF, Nana was quite happy to have me on board…..seems this ANF could have done a lot better over the years
Rental company-Schmental company…
If there is a separate rental company, then I’m a monkey’s uncle.
I haven’t paid the vermin either.
Liars, thieves & handlers of assorted small hoofed animals.
Just received a notice of default: guess who it was from?
BXP
I have just received my response for ACCC. . It appears that the ACCC are investigating as they have had numerous complaints, but in short they advise that I should pursue it with BXP myself. Attached is the response for those interested.
(Thank you for your email dated 30 May 2008 to the Australian Competition and Consumer Commission (ACCC) regarding Bill Express. I understand from your complaint that you feel that Bill Express has misled you in regards to the contract you have signed with them.
The role of the ACCC is to ensure compliance with the Trade Practices Act 1974 (TPA), which is designed to encourage fair trading and discourage anti-competitive conduct through a specific set of competition and consumer protection rules.
Section 52 of the TPA is a broad provision which prohibits a corporation, in trade or commerce, engaging in conduct which is misleading or deceptive, or which is likely to mislead or deceive. Whether particular conduct is misleading or deceptive is a question of fact to be determined in the context of the evidence as to the alleged conduct and to the relevant surrounding facts and circumstances. The ACCC has received a number of complaints relating to Bill Express and are currently assessing the matter. The ACCC may contact you if further information is required. It must be emphasised that ultimately it is a matter for the courts to determine whether the alleged conduct breaches the TPA.
A right of private right of action is available to anyone who suffers loss or damage as a consequence of a contravention of the TPA. If the ACCC were to take action and the court made findings of a contravention under the TPA, affected parties might be able to rely on the decision of that court to support their own private action.
If you think you have entered a contract with Bill Express under misleading circumstances you should first attempt to pursue a remedy with Bill Express. Should the response be unsatisfactory, you may wish to seek independent legal advice on whether it may be appropriate to pursue a private action. Often private actions are more appropriate because they are aimed at remedying a particular dispute between the parties. Your local Office of Fair Trading may be able to assist with advice on how to proceed in such matters.)