Document ID: chunk:federal_register_of_legislation:C2004A05067:schedule:1:p3
Version: federal_register_of_legislation:C2004A05067
Segment Type: schedule
Provision Reference: sch 1 (pt 3/8)
Character Range: 6702–9567

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 the intelligibility of the language in which it is expressed;

         (i) whether or not, and if so when, independent legal or other expert advice was obtained by the borrower, mortgagor or guarantor;

         (j) the extent to which the provisions of the contract, mortgage or guarantee or change and their legal and practical effect were accurately explained to the borrower, mortgagor or

         guarantor and whether or not the borrower, mortgagor or guarantor understood those provisions and their effect;

         (k) whether the Bank or any other person exerted or used unfair pressure, undue influence or unfair tactics on the borrower, mortgagor or guarantor and, if so, the nature and extent of that unfair pressure, undue influence or unfair tactics;

         (l) whether the Bank took measures to ensure that the borrower, mortgagor or guarantor understood the nature and implications of the transaction and, if so, the adequacy of those measures;

         (m) whether the terms of the transaction or the conduct of the Bank is justified in the light of the risks undertaken by the Bank;

         (n) the terms of other comparable transactions involving persons other than the Bank who provide credit;

       (o) any other relevant matter.

      (2) In determining whether a term of a particular contract, mortgage or guarantee is unjust in the circumstances relating to it at the time it was entered into or changed, a court:

       (a) is to have regard to:

           (i) the fact that the Bank and the Commonwealth have entered into an agreement for the provision by the Bank of subsidised advances; and

           (ii) the fact that the Bank is required to provide a subsidised advance if the requirements of this Act and the agreement are satisfied; and

           (iii) the fact that the interest rates applicable to subsidised advances and loans secured by specified portfolio assets are determined under this Act; and

           (iv) the fact that, in some circumstances, the Bank would not provide advances to an eligible person if the making of the advance were assessed on ordinary commercial lending criteria instead of the criteria set out in this Act or the agreement; but

       (b) is not to have regard to:

           (i) any inequality in bargaining power between the Corporation or the Bank, and the borrower, that arose because the borrower was able to obtain a subsidised advance from the Corporation or Bank and not from another financial institution; or

           (ii) the borrower's age.

      (3) For the purposes of paragraph (1)(f) or (g), a person is taken