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AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION ACT 2001 - SECT 12BG

Meaning of unfair

             (1)  A term of a contract referred to in subsection 12BF(1) is unfair if:

                     (a)  it would cause a significant imbalance in the parties' rights and obligations arising under the contract; and

                     (b)  it is not reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term; and

                     (c)  it would cause detriment (whether financial or otherwise) to a party if it were to be applied or relied on.

             (2)  In determining whether a term of a contract is unfair under subsection (1), a court may take into account such matters as it thinks relevant, but must take into account the following:

                     (b)  the extent to which the term is transparent;

                     (c)  the contract as a whole.

             (3)  A term is transparent if the term is:

                     (a)  expressed in reasonably plain language; and

                     (b)  legible; and

                     (c)  presented clearly; and

                     (d)  readily available to any party affected by the term.

             (4)  For the purposes of paragraph (1)(b), a term of a contract is presumed not to be reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term, unless that party proves otherwise.



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