(1) In determining whether a contract or a provision of a contract is unjust
in the circumstances relating to the contract at the time it was made, the
Court shall have regard to the public interest and to all the circumstances of
the case, including such consequences or results as those arising in the event
of:
(a) compliance with any or all of the provisions of the contract, or
(b)
non-compliance with, or contravention of, any or all of the provisions of the
contract.
(2) Without in any way affecting the generality of subsection (1),
the matters to which the Court shall have regard shall, to the extent that
they are relevant to the circumstances, include the following:
(a) whether or
not there was any material inequality in bargaining power between the parties
to the contract,
(b) whether or not prior to or at the time the contract was
made its provisions were the subject of negotiation,
(c) whether or not it
was reasonably practicable for the party seeking relief under this Act to
negotiate for the alteration of or to reject any of the provisions of the
contract,
(d) whether or not any provisions of the contract impose conditions
which are unreasonably difficult to comply with or not reasonably necessary
for the protection of the legitimate interests of any party to the contract,
(e) whether or not:
(i) any party to the contract (other than a corporation)
was not reasonably able to protect his or her interests, or
(ii) any person
who represented any of the parties to the contract was not reasonably able to
protect the interests of any party whom he or she represented,
because of his
or her age or the state of his or her physical or mental capacity,
(f) the
relative economic circumstances, educational background and literacy of:
(i)
the parties to the contract (other than a corporation), and
(ii) any person
who represented any of the parties to the contract,
(g) where the contract is
wholly or partly in writing, the physical form of the contract, and the
intelligibility of the language in which it is expressed,
(h) whether or not
and when independent legal or other expert advice was obtained by the party
seeking relief under this Act,
(i) the extent (if any) to which the
provisions of the contract and their legal and practical effect were
accurately explained by any person to the party seeking relief under this Act,
and whether or not that party understood the provisions and their effect,
(j)
whether any undue influence, unfair pressure or unfair tactics were exerted on
or used against the party seeking relief under this Act:
(i) by any other
party to the contract,
(ii) by any person acting or appearing or purporting
to act for or on behalf of any other party to the contract, or
(iii) by any
person to the knowledge (at the time the contract was made) of any other party
to the contract or of any person acting or appearing or purporting to act for
or on behalf of any other party to the contract,
(k) the conduct of the
parties to the proceedings in relation to similar contracts or courses of
dealing to which any of them has been a party, and
(l) the commercial or
other setting, purpose and effect of the contract.
(3) For the purposes of
subsection (2), a person shall be deemed to have represented a party to a
contract if the person represented the party, or assisted the party to a
significant degree, in negotiations prior to or at the time the contract was
made.
(4) In determining whether a contract or a provision of a contract is
unjust, the Court shall not have regard to any injustice arising from
circumstances that were not reasonably foreseeable at the time the contract
was made.
(5) In determining whether it is just to grant relief in respect of
a contract or a provision of a contract that is found to be unjust, the Court
may have regard to the conduct of the parties to the proceedings in relation
to the performance of the contract since it was made.