Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) A person must not, in trade or commerce, in connection with:
(a) the supply or possible supply of financial services (see subsection (6)) to another person (other than a listed public company); or
(b) the acquisition or possible acquisition of financial services (see subsection (7)) from another person (other than a listed public company);
engage in conduct that is, in all the circumstances, unconscionable.
(2) Without in any way limiting the matters to which the Court may have regard for the purpose of determining whether a person (the supplier ) has contravened subsection (1) in connection with the supply or possible supply of financial services to another person (the service recipient ), the Court may have regard to:
(a) the relative strengths of the bargaining positions of the supplier and the service recipient; and
(b) whether, as a result of conduct engaged in by the supplier, the service recipient was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the supplier; and
(c) whether the service recipient was able to understand any documents relating to the supply or possible supply of the financial services; and
(d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the service recipient or a person acting on behalf of the service recipient by the supplier or a person acting on behalf of the supplier in relation to the supply or possible supply of the financial services; and
(e) the amount for which, and the circumstances under which, the service recipient could have acquired identical or equivalent financial services from a person other than the supplier; and
(f) the extent to which the supplier's conduct towards the service recipient was consistent with the supplier's conduct in similar transactions between the supplier and other like service recipients; and
(g) if the person is a corporation--the requirements of any applicable industry code (see subsection (11)); and
(h) the requirements of any other industry code (see subsection (11)), if the service recipient acted on the reasonable belief that the supplier would comply with that code; and
(i) the extent to which the supplier unreasonably failed to disclose to the service recipient:
(i) any intended conduct of the supplier that might affect the interests of the service recipient; and
(ii) any risks to the service recipient arising from the supplier's intended conduct (being risks that the supplier should have foreseen would not be apparent to the service recipient); and
(j) the extent to which the supplier was willing to negotiate the terms and conditions of any contract for supply of the financial services with the service recipient; and
(ja) whether the supplier has a contractual right to vary unilaterally a term or condition of a contract between the supplier and the service recipient for the supply of the financial services; and
(k) the extent to which the supplier and the service recipient acted in good faith.
(3) Without in any way limiting the matters to which the Court may have regard for the purpose of determining whether a person (the acquirer ) has contravened subsection (1) in connection with the acquisition or possible acquisition of financial services from a person (the business supplier ), the Court may have regard to:
(a) the relative strengths of the bargaining positions of the acquirer and the business supplier; and
(b) whether, as a result of conduct engaged in by the acquirer, the business supplier was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the acquirer; and
(c) whether the business supplier was able to understand any documents relating to the acquisition or possible acquisition of the financial services; and
(d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the business supplier or a person acting on behalf of the business supplier by the acquirer or a person acting on behalf of the acquirer in relation to the acquisition or possible acquisition of the financial services; and
(e) the amount for which, and the circumstances in which, the business supplier could have supplied identical or equivalent financial services to a person other than the acquirer; and
(f) the extent to which the acquirer's conduct towards the business supplier was consistent with the acquirer's conduct in similar transactions between the acquirer and other like business suppliers; and
(g) if the person is a corporation--the requirements of any applicable industry code (see subsection (11)); and
(h) the requirements of any other industry code (see subsection (11)), if the business supplier acted on the reasonable belief that the acquirer would comply with that code; and
(i) the extent to which the acquirer unreasonably failed to disclose to the business supplier:
(i) any intended conduct of the acquirer that might affect the interests of the business supplier; and
(ii) any risks to the business supplier arising from the acquirer's intended conduct (being risks that the acquirer should have foreseen would not be apparent to the business supplier); and
(j) the extent to which the acquirer was willing to negotiate the terms and conditions of any contract for the acquisition of the financial services with the business supplier; and
(ja) whether the acquirer has a contractual right to vary unilaterally a term or condition of a contract between the acquirer and the business supplier for the acquisition of the financial services; and
(k) the extent to which the acquirer and the business supplier acted in good faith.
(4) A person is not taken for the purposes of this section to engage in unconscionable conduct in connection with:
(a) the supply or possible supply of financial services to another person; or
(b) the acquisition or possible acquisition of financial services from another person;
merely because the person institutes legal proceedings in relation to that supply, possible supply, acquisition or possible acquisition or refers a dispute or claim in relation to that supply, possible supply, acquisition or possible acquisition to arbitration.
(5) For the purpose of determining whether a person has contravened subsection (1) in connection with the supply, possible supply, acquisition, or possible acquisition of financial products:
(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 circumstances existing before the commencement of this section but not to conduct engaged in before that commencement.
(6) Subject to subsection (8), a reference in this section to the supply or possible supply of financial services is a reference to the supply or possible supply of financial services to a person whose acquisition or possible acquisition of the financial services is or would be for the purpose of trade or commerce.
(7) Subject to subsection (9), a reference in this section to the acquisition or possible acquisition of financial services is a reference to the acquisition or possible acquisition of financial services by a person whose acquisition or possible acquisition of the financial services is or would be for the purpose of trade or commerce.
(8) A reference in this section to the supply or possible supply of financial services does not include a reference to the supply or possible supply of financial services at a price in excess of $10,000,000, or such higher amount as is prescribed.
(9) A reference in this section to the acquisition or possible acquisition of financial services does not include a reference to the acquisition or possible acquisition of financial services at a price in excess of $10,000,000, or such higher amount as is prescribed.
(10) For the purposes of subsections (8) and (9):
(a) subject to paragraphs (b), (c), (d) and (e), the price for:
(i) the supply or possible supply of financial services to a person; or
(ii) the acquisition or possible acquisition of financial services by a person;
is taken to be the amount paid or payable by the person for the financial services; and
(b) if a person:
(i) was supplied financial services pursuant to a purchase; or
(ii) acquired financial services by way of purchase;
together with other property or services, or with both other property and services, and a specified price was not allocated to the services in the contract under which they were purchased, the price of the services is taken to have been:
(iii) the price at which, at the time of the supply or acquisition, the person could have purchased the services from the supplier without the other property or services; or
(iv) if, at the time of the purchase, the services were only available for purchase together with the other property or services but, at that time, services of the kind purchased were available for purchase from another supplier without other property or services--the lowest price at which the person could, at that time, reasonably have purchased services of that kind from another supplier; or
(v) if, at the time of the purchase, services of the kind purchased were not available for purchase from any supplier except together with other property or services--the value of the services at that time; and
(c) if a person is supplied with financial services otherwise than pursuant to a purchase, the price of the services is taken to have been:
(i) the price at which, at the time of the supply, the person could have purchased the services from the supplier; or
(ii) if, at the time of the supply, the services were not available for purchase from the supplier, or were available only together with other property or services, but, at that time, services of the kind supplied were available for purchase from another supplier--the lowest price at which the person could, at that time, reasonably have purchased services of that kind from another supplier; or
(iii) if services of the kind supplied were not available, at the time of the supply, for purchase from any supplier, or were not available except together with other property or services--the value of the services at that time; and
(d) without limiting by implication the meaning of the expression services in subsection 12BA(1):
(i) the obtaining of credit by a person in connection with the supply of financial services to the person is taken to be the acquisition by the person of a service; and
(ii) any amount by which the amount paid or payable by the person for the services is increased by reason of the person's so obtaining credit is taken to be paid or payable by the person for that service; and
(e) the price for the supply or possible supply, or the acquisition or possible acquisition, of services comprising or including a loan or loan facility is taken to include the capital value of the loan or loan facility.
(11) In this section:
"applicable industry code" , in relation to a corporation, has the same meaning as it has in subsection 51ACA(1) of the Trade Practices Act 1974 .
"industry code" has the same meaning as it has in subsection 51ACA(1) of the Trade Practices Act 1974 .
"listed public company" has the same meaning as it has in the Income Tax Assessment Act 1997 .
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