Commonwealth Consolidated Acts

DEFENCE SERVICE HOMES ACT 1918 - SECT 23B

  (1)   In determining whether a term of a particular contract, mortgage or guarantee in relation to a subsidised advance is unjust in the circumstances relating to it at the time it was entered into or changed, a court is, subject to subsection   (2), to have regard to the public interest (including the public interest in the continued provision of assistance to eligible persons by means of subsidised advances by a credit provider) and to all the circumstances of the case and may have regard to the following:

  (a)   the consequences of compliance, or non - compliance, with all or any of the provisions of the contract, mortgage or guarantee;

  (b)   the relative bargaining power of the parties;

  (c)   whether or not, at the time the contract, mortgage or guarantee was entered into or changed, its provisions were the subject of negotiation;

  (d)   whether or not it was reasonably practicable for the applicant to negotiate for the alteration of, or to reject, any of the provisions of the contract, mortgage or guarantee or the change;

  (e)   whether or not any of the provisions of the contract, mortgage or guarantee impose conditions that are unreasonably difficult to comply with, or not reasonably necessary for the protection of the legitimate interests of a party to the contract, mortgage or guarantee;

  (f)   whether or not any mortgagor (other than the borrower) or guarantor, or a person who represented that mortgagor or guarantor, was reasonably able to protect the interests of that mortgagor or guarantor because of his or her age or physical or mental condition;

  (g)   whether or not the mortgagor 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 credit provider 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 credit provider 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 credit provider is justified in the light of the risks undertaken by the credit provider;

  (n)   the terms of other comparable transactions involving persons other than the credit provider 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 relevant credit provider and the Commonwealth have entered into an agreement or arrangement for the provision by the credit provider of subsidised advances or other benefits under this Act; and

  (ii)   the fact that the credit provider 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 credit provider 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 credit provider, and the borrower, that arose because the borrower was able to obtain a subsidised advance from the Corporation or credit provider 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.