Document ID: chunk:federal_register_of_legislation:C2005C00499:clause:1_12cc:p1
Version: federal_register_of_legislation:C2005C00499
Segment Type: clause
Provision Reference: sch 1 cl 12CC (pt 1/5)
Character Range: 13709–16542

12CC  Unconscionable conduct in business transactions

 (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