Commonwealth Consolidated Acts

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Unconscionable conduct in connection with financial services

  (1)   A person must not, in trade or commerce, in connection with:

  (a)   the supply or possible supply of financial services to a person; or

  (b)   the acquisition or possible acquisition of financial services from a person;

engage in conduct that is, in all the circumstances, unconscionable.

  (2)   This section does not apply to conduct that is engaged in only because the person engaging in the conduct:

  (a)   institutes legal proceedings in relation to the supply or possible supply, or in relation to the acquisition or possible acquisition; or

  (b)   refers to arbitration a dispute or claim in relation to the supply or possible supply, or in relation to the acquisition or possible acquisition.

  (3)   For the purpose of determining whether a person has contravened subsection   (1):

  (a)   the court must not have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention; and

  (b)   the court may have regard to conduct engaged in, or circumstances existing, before the commencement of this section.

  (4)   It is the intention of the Parliament that:

  (a)   this section is not limited by the unwritten law of the States and Territories relating to unconscionable conduct; and

  (b)   this section is capable of applying to a system of conduct or pattern of behaviour, whether or not a particular individual is identified as having been disadvantaged by the conduct or behaviour; and

  (c)   in considering whether conduct to which a contract relates is unconscionable, a court's consideration of the contract may include consideration of:

  (i)   the terms of the contract; and

  (ii)   the manner in which and the extent to which the contract is carried out;

    and is not limited to consideration of the circumstances relating to formation of the contract.

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