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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