Document ID: chunk:federal_register_of_legislation:C2004A05067:schedule:1:p5
Version: federal_register_of_legislation:C2004A05067
Segment Type: schedule
Provision Reference: sch 1 (pt 5/8)
Character Range: 11855–14668

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) a fee or charge for a prepayment of an amount under the relevant contract, mortgage or guarantee;

      is unconscionable, the court may annul or reduce the fee or charge and may make ancillary or consequential orders.

      (2) In determining whether an establishment fee or charge is unconscionable, the court is to have regard to whether the amount of the fee or charge is equal to the Bank's reasonable costs of determining an application for credit and the initial administrative costs of providing the credit or is equal to the Bank's average reasonable costs of those things in respect of that class of contract.

      (3) For the purposes of this section, a fee or charge payable on early termination of, or a prepayment of an amount under, the relevant contract, mortgage or guarantee is unconscionable if, and only if, it appears to the court that it exceeds a reasonable estimate of the Bank's loss arising from the early termination or prepayment, including the Bank's average reasonable administrative costs in respect of such a termination or prepayment.

23G Time limit

      (1) An application under section 23A may not be brought more than 2 years after the relevant contract, mortgage or guarantee is rescinded or discharged or the Bank writes off the relevant debt, whichever occurs first.

      (2) An application under section 23F may not be brought more than 2 years after the relevant fee or charge is charged under the contract, mortgage or guarantee or the Bank writes off the relevant debt, whichever occurs first.

23H Exceptions

    (1) This Part does not apply to:

         (a) a change to a contract, mortgage or guarantee if the change was made by, or as a result of, the enactment of this Part, section 35A, any other Act or an amendment of the agreement; or

         (b) a contract, mortgage or guarantee under which the borrower, mortgagor or guarantor is not an individual; or

         (c) a contract under which the borrower is borrowing for a purpose that is not wholly or predominantly a personal, domestic or household purpose; or

         (d) a mortgage or guarantee that secures or guarantees obligations under a contract:

            (i) under which the borrower is not an individual; or

            (ii) under which the borrower is borrowing for a purpose that is not wholly or predominantly a personal, domestic or household purpose; or

         (e) a contract, mortgage or guarantee that was entered into before the commencement of this paragraph.

    (2) For the purposes of this