Document ID: chunk:federal_register_of_legislation:C2011A00184:clause:2_12cb
Version: federal_register_of_legislation:C2011A00184
Segment Type: clause
Provision Reference: sch 2 cl 12CB
Character Range: 4785–6826

12CB  Unconscionable conduct in connection with financial services
 (1) A person must not, in trade or commerce, in connection with:
 (a) the supply or possible supply of financial services to a person (other than a listed public company); or
 (b) the acquisition or possible acquisition of financial services from a person (other than a listed public company);
engage in conduct that is, in all the circumstances, unconscionable.
 (2) This section does not apply to conduct that is engaged in only because the person engaging in the conduct:
 (a) institutes legal proceedings in relation to the supply or possible supply, or in relation to the acquisition or possible acquisition; or
 (b) refers to arbitration a dispute or claim in relation to the supply or possible supply, or in relation to the acquisition or possible acquisition.
 (3) For the purpose of determining whether a person has contravened subsection (1):
 (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 conduct engaged in, or circumstances existing, before the commencement of this section.
 (4) It is the intention of the Parliament that:
 (a) this section is not limited by the unwritten law of the States and Territories relating to unconscionable conduct; and
 (b) this section is capable of applying to a system of conduct or pattern of behaviour, whether or not a particular individual is identified as having been disadvantaged by the conduct or behaviour; and
 (c) in considering whether conduct to which a contract relates is unconscionable, a court's consideration of the contract may include consideration of:
 (i) the terms of the contract; and
 (ii) the manner in which and the extent to which the contract is carried out;
  and is not limited to consideration of the circumstances relating to formation of the contract.
 (5) In this section:
listed public company has the same meaning as it has in the Income Tax Assessment Act 1997.