Document ID: chunk:federal_register_of_legislation:C2004A05067:schedule:1:p4
Version: federal_register_of_legislation:C2004A05067
Segment Type: schedule
Provision Reference: sch 1 (pt 4/8)
Character Range: 9314–12128

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 to have represented a mortgagor or guarantor if the person represented the mortgagor or guarantor, or assisted the mortgagor or guarantor to a significant degree, in the negotiations process before, or at, the time the mortgage or guarantee was entered into or changed.

23C Unforeseen circumstances

      In determining whether a contract, mortgage or guarantee in relation to a subsidised advance is unjust, a court is not to have regard to any injustice arising from circumstances that were not reasonably foreseeable when the contract, mortgage or guarantee was entered into or changed.

23D Conduct

      In determining whether to grant relief in respect of a contract, mortgage or guarantee that it finds to be unjust, a court may have regard to the conduct of the parties to the proceedings in relation to the contract, mortgage or guarantee since it was entered into or changed.

23E Orders on reopening of transactions

      If a court reopens a transaction under section 23A, it may do any one or more of the following, despite any settlement of accounts or any agreement purporting to close previous dealings and create a new obligation:

       (a) reopen an account already taken between the parties;

         (b) relieve the borrower and any guarantor from payment of any amount in excess of the amount that the court, having regard to the risk involved and all other circumstances, considers to be reasonably payable;

         (c) set aside either wholly or in part, or revise or alter, an agreement made or mortgage or guarantee given in connection with the transaction;

       (d) order that the Bank take any steps that are necessary to discharge the mortgage;

         (e) give judgment for, or make an order in favour of, a party of any amount that, having regard to the relief (if any) that the court thinks fit to grant, is justly due to that party under the contract, mortgage or guarantee;

         (f) give judgment or make an order against a person for delivery of goods to which the contract, mortgage or guarantee relates and which are in the person's possession;

       (g) make ancillary or consequential orders.

23F A court may review unconscionable fees and charges

      (1) Subject to this Part, if a court is satisfied on the application of a borrower, mortgagor or guarantor that:

         (a) an establishment fee or charge in respect of the relevant contract, mortgage or guarantee; or

         (b) a fee or charge payable on early termination of the relevant contract, mortgage or guarantee; or

         (c)