Document ID: chunk:federal_register_of_legislation:C2004A05067:schedule:1:p2
Version: federal_register_of_legislation:C2004A05067
Segment Type: schedule
Provision Reference: sch 1 (pt 2/8)
Character Range: 4171–6948

a court is satisfied, on the application of a borrower, mortgagor or guarantor, that, in the circumstances relating to the relevant contract, mortgage or guarantee, at the time it was entered into or changed (whether or not by agreement), the contract, mortgage or guarantee or the change was unjust, the court may re-open the transaction that gave rise to the contract, mortgage, guarantee or change.

    (2) This section does not apply to, or to a change in:

         (a) the annual percentage rate or rates of interest under a contract or mortgage or the method of calculating any such rate or rates of interest or of calculating any amount of interest under the contract or mortgage; or

         (b) an establishment fee or charge, or other fee or charge, in respect of which an application may be made under section 23F.

23B Matters to be considered by court

      (1) In determining whether a term of a particular contract, mortgage or guarantee in relation to a subsidised advance is unjust in the circumstances relating to it at the time it was entered into or changed, a court is, subject to subsection (2), to have regard to the public interest (including the public interest in the continued provision of assistance to eligible persons by means of subsidised advances by the Bank) and to all the circumstances of the case and may have regard to the following:

         (a) the consequences of compliance, or non-compliance, with all or any of the provisions of the contract, mortgage or guarantee;

       (b) the relative bargaining power of the parties;

         (c) whether or not, at the time the contract, mortgage or guarantee was entered into or changed, its provisions were the subject of negotiation;

         (d) whether or not it was reasonably practicable for the applicant to negotiate for the alteration of, or to reject, any of the provisions of the contract, mortgage or guarantee or the change;

         (e) whether or not any of the provisions of the contract, mortgage or guarantee impose conditions that are unreasonably difficult to comply with, or not reasonably necessary for the protection of the legitimate interests of a party to the contract, mortgage or guarantee;

         (f) whether or not any mortgagor (other than the borrower) or guarantor, or a person who represented that mortgagor or guarantor, was reasonably able to protect the interests of that mortgagor or guarantor because of his or her age or physical or mental condition;

         (g) whether or not the mortgagor who was the borrower, or a person who represented that mortgagor, was reasonably able to protect the interests of that mortgagor because of his or her physical or mental condition;

         (h) the form of the contract, mortgage or guarantee and