AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION ACT 2001 - SECT 12BG Meaning of unfair

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION ACT 2001 - SECT 12BG

  (1)   A term of a contract referred to in section   12BF 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.