VCAT or other option as a first step in class-action against GoodLife Gyms

LAFOS on 21/08/2020 - 16:27

Hey guys,

Wondering about your opinion on the following subject.

I am taking GoodLife Health Clubs to VCAT for breaching (non-performance under the contract). The story is as follows:

My wife has been a member of our local GoodLife gym since 2014. In June 2020, when they introduced mandatory booking process (as a response to COVID), we thought that it would be better to stay home until the whole situation with the virus becomes better. So, my wife called them and asked to cancel her membership effective immediately. She was snagged with compulsory fees (about $20) during notice period. Given GoodLife reputation it was sort of expected. However, there is a small problem. As per their terms & conditions https://www.goodlife.com.au/terms-and-conditions/ they are to give 28 days written notice if they decide to vary terms of the contract. Original contract specified unlimited entry to the local gym, so implementing compulsory bookings is clearly modification to the contract, which nobody consented to. Obviously, nobody asked our consent when introducing compulsory bookings.

I sent GoodLife numerous emails and a registered mail letter with request to refund $20. No response whatsoever. Contacted Consumers Affairs Victoria 2 times. Received case number but nobody contacted me during last 2 months.

I personally see such behavior as a perfect example of unconscionable conduct on part of GoodLife. Basically, they keep you hostage irrespective of terms of their own contract as long as they have your credit card details.

This type of behavior is widespread and there are numerous class-action cases in US against gym chains.

I failed to find anything of such sort in Australia, so I decided to path the way. I lodged a claim at VCAT with request to refund $20 and (which is the most important!) to force them to perform under the contract, which means contacting each active member in writing and getting their written consent to modification of the contract.

The claim has been accepted and today I got a case number.

However, I have doubts whether VCAT is the best way to go. I personally would prefer Magistrate court as their decisions are legal precedents and they have wider jurisdiction.

So, do you guys think whether I should stick to VCAT or relodge the case in Magistrates. My purpose here is obviously not to get my refund (I already spent $70 vs $20 that I require. I would like to act here as a member of general public to help other who find themselves in a similar situation.

Any other options?

Thanks a lot!

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Comments

  • pingualien on 21/08/2020 - 16:32
    +7

    i hope you win

  • Porker on 21/08/2020 - 16:35

    VCAT has the same judicial powers as Magistrate when it comes to certain matters. That is, in some cases, a decision at VCAT is with authority such that any appeals will have you escalating the matter to the Supreme Court.

    In terms of the 'notification' period, is there clarification on how this should occur? Eg. Them putting up notice at their gyms may have sufficed - it's just that you never got to read them due to lockdown (as example).

    • AFOS on 21/08/2020 - 16:49
      +1

      From their T&C:
      https://www.goodlife.com.au/terms-and-conditions/

      Variation

      To the extent that a variation to this Agreement is not detrimental to You, from time to time, Goodlife may vary this Agreement. If Goodlife intends to do so, Goodlife will give You 28 days’ written notice of the varied terms. If You have reasonable grounds to believe the change will be detrimental to Your rights, You may terminate this Agreement without penalty within 28 days of receiving the notice. Any other variation of the Agreement must be agreed in writing by You and Goodlife.

  • CyberMurning on 21/08/2020 - 16:42

    i thought we all humanity are having much bigger problem with this bad C virus at the moment?

    • Tee Rex Arms on 21/08/2020 - 19:24
      +6

      We definitely do. This petty problem is pathetic in the big scheme of things.

    • ozboygsl on 22/08/2020 - 09:32
      -3
      1. try speaking normally
      2. stop believing everything you see on tv or read in the papers; your clearly brainwashed.
  • ryan1jz on 21/08/2020 - 16:44

    Godspeed AFOS.

    I was lucky, as my local boutique gym simply ended my contract when I asked to cancel. When I signed up a few years ago, they said they would need 2 months notice, however due to covid, and I mentioned I was moving quite far away to a new suburb, it was cancelled without any penalties. I was quite happy with that.

    I have had the run around from chain gyms before, I don't know or understand why that particular industry is so difficult to exit from, but I wish you all the best for your $20 and the point you intend to prove.

  • [Deactivated] on 21/08/2020 - 16:50
    -1

    🤣🤣🤣🍿

  • bohn on 21/08/2020 - 16:51
    +3

    Go to VCAT.
    If you win you can still probably get them to pay your $65.30 application fee as well.
    It is annoying I agree - but they will probably agree to refund you prior to the hearing. They don't want you setting a precedent.

    • Porker on 21/08/2020 - 17:18

      Even if OP wins at VCAT, the application fee won't be awarded. Unless OP intends to have legal representation, the fees for self-representation are absorbed by the party.

      But agree if that the gym agrees to settle prior to hearing, then have them pay for the application fee too as part of your negotiation.

      • bohn on 21/08/2020 - 17:46

        then have them pay for the application fee too as part of your negotiation

        I don't think there has to be a negotiation - they can just respond that they will pay the OP $20 and the hearing doesn't need to go ahead. That's it. That is probably what the gym will do. OP can't make it dependent on the VCAT fee (and the VCAT fee wasn't of a concern to the OP).

        • AFOS on 21/08/2020 - 17:58
          +1

          In my claim I listed following remedies sought:
          - GoodLife Health Clubs to refund the charges totalling $20.85.
          - GoodLife Health Clubs to contact all club members (both current and former ones), who
          were affected by the changes. As per original Terms & Conditions the above members are to
          be contacted in writing and to provide their written consent to the modification of their
          contracts.
          So, I don't think that $20 is going to cut it. However, they may not appear in court and that is why I am curios whether VCAT has powers to force the second remedy. I am not interested in $20 at all.

          • bohn on 21/08/2020 - 18:02

            @AFOS: Not attacking you but just because you put something in the application form doesn't mean that it will be dealt with.
            You can only go in speaking for yourself, not for all the other members at the gym. So the claim is for $20.85, and they can agree to refund you that and the hearing is cancelled.

            Almost certain this is what will happen as it isn't worth the gyms time to send someone into VCAT in relation to this matter - nor is it in their interests to have a precedent set I guess.

            • AFOS on 21/08/2020 - 18:05

              @bohn: I agree 100% and that's the problem. Hence this topic…

              • bohn on 21/08/2020 - 18:06

                @AFOS: Don't think there is anything else you can do.
                Except hope that they come to the hearing I guess. I think taking it to the Magistrate court is a waste of the court's time and you may well be told that in court.

                • serpserpserp on 21/08/2020 - 22:09

                  @bohn:

                  I think taking it to the Magistrate court is a waste of the court's time and you may well be told that in court.

                  He'll get told before that situation eventuates.

          • WreckTangle on 21/08/2020 - 18:31
            +2

            @AFOS: And pain and suffering $300,000

          • DoctorCalculon on 21/08/2020 - 22:20

            @AFOS:

            GoodLife Health Clubs to contact all club members

            You can't seek remediation from the Respondent for damages borne by individuals that are not a party to this proceeding.
            This is not a class action case.

            Do you have legal representation?
            If not, be prepared to be shocked when the Tribunal Member makes a decision that you may not like. Even having a lawyer with you won't necessarily mean that you will win.

            VCAT has powers to force the second remedy.

            I very much doubt it, as there are only two parties in this proceeding.

            • AFOS on 21/08/2020 - 22:25

              @DoctorCalculon: I have nothing to lose. $70 for a lot of fun. Plus, I will be able to refresh my knowledge of ACL & contract law. win-win situation.

              • DoctorCalculon on 21/08/2020 - 22:37
                +1

                @AFOS:

                I have nothing to lose

                Other than time.

                Have you served the sealed application on the Respondent (GoodLife) yet?

                One of two things will happen once you do. Once served, GoodLife will most likely just refund your money. They are running a business, and $20 is nothing to them. They don't have time or money to waste on such a trivial claim.

                If it goes to a hearing, the presiding Tribunal Member of the list will hear the case on the first mention, and direct both parties to attend a compulsory mediation via conference. Again, for $20 I doubt it will get this far.

                I get what you are trying to do here. You want GoodLife to held accountable. However, this is not the right path.

                Plenty of businesses (big banks, telcos, etc.) are carrying out borderline illegal practices on a daily basis screwing over the little guy.
                Are you going to go after them all on principle?

                • AFOS on 21/08/2020 - 23:04

                  @DoctorCalculon: I just got a case number. Hearing nowhere near in sight. I am in Vic so it may take months before the case will go to the trial.

                  Yes, these are all valid points and I agree wholeheartedly.

                  However, if I can make just a little bit of difference, I will. May be next time if some company decides to pull a dirty trick, consideration of such ridiculous court case will stop them. Sounds idealistic, I know.

  • whooah1979 on 21/08/2020 - 16:55

    Class actions are heard in the VSC.

    • AFOS on 21/08/2020 - 18:03
      -3

      I know. My thought is to use the case as a precedent. If enough people hear about it, it may have similar (not the same of course) effect

      • miarn on 22/08/2020 - 15:25

        VCAT doesn't set a precedent for anything or anyone, so I really think you're wasting your time (and the time of VCAT, which is already stretched to breaking point).

        But hey, have at it I guess…

  • whooah1979 on 21/08/2020 - 17:06
    +2

    relodge the case in Magistrates. My purpose here is obviously not to get my refund (I already spent $70 vs $20 that I require

    You’re kidding right? Are you really going to waste the magistrates time on $20?

    • Porker on 21/08/2020 - 17:20

      I am aware of a Hawthorn resident that has racked up $35,000 of legal fees (YES! $35K which includes barrister representation) to argue a $90 parking fine. The Council had an equal amount of legal fees such that in that case, yes, the losing party will need to pay the other's costs.

      • AFOS on 21/08/2020 - 18:00
        +2

        It's a principle.
        Furthermore, if you read GoodLife reviews online that you will see that they screwed a lot of people in similar situation for much larger amounts. They keep on doing the same as we speak.

      • whooah1979 on 21/08/2020 - 18:02

        Well they got what they deserved for wasting the courts time.

  • Drakesy on 21/08/2020 - 17:27

    I think go for it!
    In principle Goodlife's approach to business i feel has been sub par, with bullying tactics (used to receive spam cold calls and even after telling them i wasn't interested - not sure where they got my number from) to contractual agreements that don't let you escape. But then again there's nothing stopping the consumer from voting with their feet and not going…

    but yeah, if it's a change of contract then yes, although they may have wiggle room in that it was a variance of terms of accessibility, not necessarily the contract you signed.

  • spackbace on 21/08/2020 - 17:42
    +1

    Dale Kerrigan, is that you?

  • bloom on 21/08/2020 - 18:34
    +1

    How do we join this class action?!!!?!
    Is Maurice Blackburn onboard?
    Or is this more of an Erin Brockovich case?

    • bohn on 21/08/2020 - 18:39

      This might be more a Dark Waters case.

  • Melb69 on 21/08/2020 - 19:00

    Is this to get $20 back. Go for it if you have that much time and need the money.

    • brendanm on 21/08/2020 - 19:14

      Op has clearly stated they don't care about the $20.

      • whooah1979 on 21/08/2020 - 19:20
        +1

        In my claim I listed following remedies sought:
        - GoodLife Health Clubs to refund the charges totalling $20.85.

        It’s funny how op doesn’t want a refund, but list a refund as the first remedy they want.

        • AFOS on 21/08/2020 - 20:15
          +2

          I think if I had not claimed that, there would have been a good chance of case not being accepted by VCAT at all.

      • Melb69 on 21/08/2020 - 19:23

        Fair enough if they have the time as then it's the principle of the matter. Good luck OP in your fight.

      • DoctorCalculon on 21/08/2020 - 22:41

        The OP needs to surrender his OzBargain membership right away.

    • TilacVIP on 22/08/2020 - 09:01

      You forgot "motivation" cause jeeeeezus you need a lot of that to chase $20.

      Good luck, hope OP wins.

  • xinyi on 21/08/2020 - 20:18
    +1

    Hi OP

    Hope you win. This is obviously the kind of dirty trick these businesses always use to prey on honest consumers who haven't done anything wrong and two shouldn't be forced to put up or shut up about this type of crap.

    I also think you should contact 60 minutes or A Current Affair. Businesses need to stop doing this type of crap and the media coverage will go towards highlighting this.

    No I don't think it is a small or petty issue. It is really annoying when all businesses seem to default to this sort of standard when dealing with consumers.

  • serpserpserp on 21/08/2020 - 20:23

    You need to post us your original contract you signed (redacted of course). We need to see what terms and conditions you are basing your case off of.

    • AFOS on 21/08/2020 - 20:47
      -1

      I have it but it has a clause for full T&C to go to the web-site. That is why I refer to it.

      There is a basic common law principle that for any modification to a contract to be considered valid, all parties must agree to the subsequent changes. Which coincidentally T&C agree with:)

      • serpserpserp on 21/08/2020 - 21:51

        You would have been provided a contract that you signed. I'm sure terms and conditions have changed since then, but we need to understand under what T&Cs you signed up on. The website ones will just be the latest iteration of this.

      • serpserpserp on 21/08/2020 - 21:57
        +2

        Also just to play devils advocate, you might come unstuck on this clause in the T&Cs noted:

        SAFETY, MAINTENANCE & SERVICE DEMAND

        From time to time Goodlife may be required to make changes to the operation of the premises, these may include:

        ….

        Changing the availability of facilities or services within the Club.

        • AFOS on 21/08/2020 - 22:23

          Excellent call! This is kind of feedback I really needed.

          In that case I think I will have to fall back on unfair contract terms protection under ACL:

          A term of in a consumer contract is unfair if it would:
          a. cause a significant imbalance in the parties’ rights and obligations arising under the contract;
          b. not be reasonably necessary to protect the legitimate interests of the party advantaged by the term; and
          c. cause detriment (whether financial or otherwise) to a party if it were to be applied or relied on

          All subject to judge interpretation, of course. Under the circumstances I think more appropriate would be the clause of force majeure. But it is missing in T&C. And I believe they did not include it for the reason that a customer could use it too.

          • serpserpserp on 22/08/2020 - 10:45

            @AFOS: You need to quote everyone the section of ACL you are referring to.

            Unfortunately none of the provisions you have listed would apply to GoodLife trying to find ways to comply with regulations around COVID-19.

  • Boogerman on 22/08/2020 - 08:50

    Haven’t read a single response but I’ll bet a large number were along the lines of “why bother for $20”. Can someone confirm?

    • Melb69 on 22/08/2020 - 09:25

      Yes. Now its principle and motivation. The last couple of comments were useful to OPs consideration, but he also had reasonable responses. I say if he has the time go for it. However I would consider my time more valuable and just write it off.

      • Boogerman on 22/08/2020 - 13:58
        +1

        People are so materialistically driven on here (albeit no surprise for ‘Ozbargain’), that it is beyond their comprehension that someone could want something based on principles. They are the type of people (& there are millions of them) who I have no intention of any association with

        • whooah1979 on 22/08/2020 - 14:12

          Principles are the stuff of la la land while the real world is falling down.

          • Boogerman on 22/08/2020 - 16:52

            @whooah1979: Me, me, me, me, me.
            Money, money, money, money
            Meeeeeeeeeeeeeeeeee. Meeeeeeeeeeeeee

    • whooah1979 on 22/08/2020 - 09:41

      The case is spend $70 in legal fees to get back $20.85. Someone should post it as a deal.

  • crashloaded on 22/08/2020 - 12:14

    Won't the problem be that they didn't in fact change their contract or agreement, the mandatory government restrictions caused them to not be able to fulfill the contract, so you need to sue the government?

  • golfer dad on 22/08/2020 - 12:22
    +1

    Whilst you have the right to feel the need or anger to invest significant time & effort to lodge a VCAT due to modification to the membership contract without member consent, I am also a GoodLife member but I have absolutely no objection to them introducing compulsory bookings without asking for my consent given we are living in a pandemic and it is to ensure there are not too many people attending the gym at any one time and to minimise the spread of COVID. In Victoria, we are also living in a state of emergency and businesses need to operate within COVID safe guidelines

    • AFOS on 22/08/2020 - 12:40

      In is all correct and I completely agree. This may fall under the category of force majeure or frustration of the contract. It is your choice to keep the contract on foot.

      However, imagine yourself in a position when you became the member of the club say in March, right before the COVID. Given the current situation you may become worried about keeping your membership active. First, it's not quite clear how the virus is spread in closed quarters. Some gyms are larger, some smaller, so it is understandable that you do not want risk it. Secondly, necessity of preliminary booking effectively prevents you from exercising on whim (if you disregard any risks whatsoever).

      COVID is completely unanticipated event and its repercussions should give you a right to terminate the contract without penalty because the contract becomes effectively frustrated.But GoodLife will snag you with a notice period which in my case is just 28 days but in yours can be half a year. Do you feel that it is fair?

      It is a large enterprise with their own legal team and such basic things should not be explained to them. They should be explaining those things to their customers

      • golfer dad on 23/08/2020 - 10:28
        +1

        I understand your point and it's a matter of principle as you have said, it's not about the $20. Personally I would just accept the $20 fee as it's not worth my time and I couldn't handle the frustration of arguing with GoodLife about their T&Cs and dealing with government departments (VCAT, ACCC, etc) who are not very responsive at the best of time, let alone in Stage 4 restrictions. So good luck!

        This is not a judgement but a genuine question - are you pursuing this because you are normally a person of strong principle or do your think your determination to purse this matter because or is it the frustration of our lives in Victorian due to having the toughest restriction and being in stage 3/4 for significantly longer than the rest of the country and this was the straw that broke the camel's back?

        • AFOS on 23/08/2020 - 13:02

          I think a lot of people misinterpreted my intentions. Yes, this is a matter of principle. But this "principle" is slightly different. I am an average (and rather cynical) person. And I do also get the concept of immateriality (which $20 clearly falls into).

          My point here is that a large company, fully realizing they they are in the wrong, is intentionally ripping off their customers. It's not one-off incident or a mistake that may take place anywhere. This is company's policy. For instance, they initially introduced $5 "time freeze" fee during lockdown and only a flow of complaints stopped them. They will change you with $10 "dishonor fee" if for some reason credit card payment does not go through (which is illegal as it is a fine, not fee). Don't get me started on minimal term etc. The list is long, just google.

          If a company does civil wrong as part of their policy, this falls under definition of unconscionable conduct. And this is to be fought against. $20 is just a cause, but not the reason. Stage 4 did not affect me in this sense.

          Some reading here https://indaily.com.au/news/2020/06/04/gym-members-confused-…

          • golfer dad on 24/08/2020 - 09:22

            @AFOS: As we have seen in this pandemic, Govt, the States, companies, small businesses have had to introduce new rules or change existing ones to deal something that they have never encountered previously. The rush has seem plenty of new regulations with many short comings and unintended anomalies (Jobkeeper, managing of hotel quarantines, aged care management, etc). Businesses often have little time to delevlope processes to comply with government guidelines. GoodLife is not perfect but they not the only ones and not the worst with their T&Cs. Car hire companies and insurance providers are so much worst and that's before COVID! Anyway, keep us updated with how you go.

  • OzHunterNSW on 22/08/2020 - 15:04

    The Dep of Fair Trading should be able to assist you here

    • AFOS on 22/08/2020 - 15:47

      Two months' since I lodged the complaint. No reply…

      • DoctorCalculon on 14/10/2020 - 22:52

        No reply because they have more pressing and legitimate complaints to deal with than this non-sense.
        I am simply astounded you are still pursuing this.

        If you claim the $20 is irrelevant, and you are fighting this on principle alone, how much money and energy are you willing to throw at it? There are no other plaintiffs other than yourself. Therefore, this is not a class action.

        For $20, your VCAT case will most likely to be thrown out, and even if it isn't what will you accomplish?
        You will accomplish nothing as GoodLife won't change their behaviour, and they will continue to do whatever it takes to maximise their profits even it means screwing over their customers like this.

        • AFOS on 16/10/2020 - 09:45

          Time will tell.
          VCAT has already accepted the case. Plus, they were unlikely to throw it out as I require performance under the contract (not only monetary compensation).
          Everybody enjoys life in their own way. Some people drink beer, some screw their customers, some take them to court. I am from the latter group.
          I will post an update when I have one (if anyone is interested).

          • dealman on 17/10/2020 - 16:33

            @AFOS: Surely interested, do post an update once the case is heard at Vcat, a video feed would have been interesting too, but a post would do.

            Best of luck.

  • MrBear on 24/08/2020 - 12:17

    Wow. What kind of internet Karen hell did I fall into?

  • capslock janitor on 13/10/2020 - 09:28

    🙂 don't beat around the bush. Bluntly say what you'd like, Steve.

  • bounty hunter on 14/01/2021 - 14:27

    Any update on this OP?

    Way to go. I think many people are so focused on the $20 that they miss the point here.

    [Rant starts].

    This is a matter of deterrence. GoodLife and other gyms regularly conduct business in this way and it amounts to thousands if not hundreds of thousands of dollars stolen from honest unsuspecting customers each year.

    Many people feel too small or insignificant in that why bother, one person's claim won't make a difference. But if everybody thought that way this is why things will just get worse…

    At the very least if you can't be bothered to fight for a positive change, then the least you can do is not criticise but cheer on people that try.

    [Rant over].

    • AFOS on 14/01/2021 - 18:06

      Thank you for support:)
      No, unfortunately there was no news from VCAT as yet.
      Apparently they are working through their backlog.
      I most definitely will post an update when there is anything to report on.

      • samsong on 12/07/2022 - 01:34

        Hey mate its been a long time but I'm going through something similar, did you get any resolution for this?

  • AFOS on 12/07/2022 - 07:51

    Actually, yes. Vast majority of people here were not in favor of my idea, so I thought that VCAT would also consider may case petty, so I settled with GoodLife. They gave my money back with a few free gym passes so I withdrew the application. There was no need fighting as nobody seemed interested at all…

    • samsong on 12/07/2022 - 11:10

      so they only backed off after they saw that you went to VCAT, interesting thanks for the reply

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