I cancelled a gym membership via email. They continued to debit $700 from my account over the next couple of months, despite emailing them again. Now they are claiming I have not properly cancelled my membership and I am not entitled to a refund. Is this true?
Sam, Victoria
Kat George says: Depending the details of your cancellation, what your gym is saying may or may not be true. When you signed up for your membership, there would have been terms to your contract. Mostly, these are around any special deals you got and the length of time you agreed to be a member.
I want my property revalued as part of my mortgage renegotiation. Is my bank obliged to do this?Read more
That said, most gym contracts that I’ve seen also have a stipulation that you can end your contract with notice (anecdotally, I’ve seen this be in the range of two weeks to one month). Some gyms might have a discharge fee, or other conditions that stop you getting a deposit back, if you cancel within a certain timeframe.
It is worth revisiting your original contract – you might find it works in your favour. Your gym has charged you for more than a month following your cancellation notice – and a breach of contract terms doesn’t seem to be the issue, based on the information you provided – so look for stipulations about cancelling your membership in writing, and any notice periods you might need to serve.
Australian Consumer Law may provide some guidance for you too; the ACL protects consumers against “unconscionable conduct”. It does not define unconscionable conduct, but the ACCC notes: “Conduct may be unconscionable if it is particularly harsh or oppressive … It needs to be more than just hard commercial bargaining; it must be against conscience, as judged against the norms of society. The Australian courts have found transactions or dealings to be unconscionable when they are deliberate, involve serious misconduct or something clearly unfair and unreasonable.”
This can be applied where there is a clear power asymmetry, and where the business has failed to act in good faith. It’s arguable that in your case, the gym has not acted in good faith, given that you – by emailing more than once to request a cancellation – made a good faith attempt to communicate with the gym.
With this in mind, and presuming you did not use your gym membership after you asked to cancel it, there are steps you can take to make your case.
First: Put everything in writing, including attachments of your initial email and all your subsequent correspondence with the gym. Typically, sending a cancellation request in writing should suffice to break a contract, provided there aren’t other terms on how to cancel within the contract. This is not an “improper” way to cancel your contract.
Send this information to the gym, reiterate that you provided written notice of your cancellation and that you expect them to honour that. Explain that you believe their conduct falls within “unconscionable conduct” under the ACL, and that you don’t feel that they have acted in good faith.
If the gym doesn’t cooperate, you can try disputing the charges with your bank. You will need all the evidence gathered above and, if possible, any gym records to show you weren’t using your membership. Your bank will have its own policies about disputing charges, including timeframes in which you can make a claim and the evidence you need to provide.
You can also make a complaint to Consumer Affairs Victoria and/or the ACCC (for readers in other jurisdictions, you can complain to your jurisdictional consumer affairs body).
‘Confirmshaming’: report reveals subscription traps and hidden costs targeting Australian consumersRead more
Consumer advocates are increasingly aware that some businesses employ “dark patterns” to cause consumer harm. While these generally refer to online transactions, your experience may fall in the scope of what we consider a “dark pattern”, especially if you signed up for and are trying to cancel your subscription online.
Dark patterns are design manipulations that cause consumers to do things like paying for subscriptions they don’t want, or don’t know they have. They can make it difficult to opt out of a subscription, with opaque information and processes and terms buried in complicated contractual jargon. They can also make it overly burdensome for you to cancel (for instance, by telling you your cancellation wasn’t “proper”), so that you give up pursuing it.
The Consumer Policy Research Centre has found that 83% of Australians have been negatively impacted by dark patterns online, and has identified 10 forms of dark patterns, including “forced continuity – inability or difficulty in cancelling an online subscription, especially after a free trial”.
While your experience may not have been entirely online, these patterns of behaviour by businesses are something consumer advocates and regulators are increasingly interested in understanding. They are also campaigning for policy reforms to bring in stronger consumer protections against these tactics. Until reforms take place, you’ll need to call upon existing provisions in the ACL to support your claim.
Ask Kat a question
Do you have an Australian consumer issue you’d like Kat’s advice on? Fill out the form below to let us know.
