(1) A corporation must not, in trade or commerce, in connection with the
supply or possible supply of financial services to a person, engage in conduct
that is, in all the circumstances, unconscionable.
(2) Without limiting the matters to which the Court may have regard for the
purpose of determining whether a corporation has contravened
subsection (1) in connection with the supply or possible supply of
services to a person (the consumer ), the Court may have regard to:
- (a)
- the
relative strengths of the bargaining positions of the corporation and the
consumer; and
- (b)
- whether, as a result of conduct engaged in by the corporation, the
consumer was required to comply with conditions that were not reasonably
necessary for the protection of the legitimate interests of the corporation;
and
- (c)
- whether the consumer was able to understand any documents relating to the
supply or possible supply of the services; and
- (d)
- whether any undue influence or pressure was exerted on, or any unfair
tactics were used against, the consumer or a person acting on behalf of the
consumer by the corporation or a person acting on behalf of the corporation in
relation to the supply or possible supply of the services; and
- (e)
- the amount for which, and the circumstances under which, the consumer
could have acquired identical or equivalent services from a person other than
the corporation.
(3) A corporation is not taken for the purposes of this section to engage in
unconscionable conduct in connection with the supply or possible supply of
financial services to a person merely because the corporation:
- (a)
- institutes legal proceedings in relation to that supply or possible supply; or
- (b)
- refers a dispute or claim in relation to that supply or possible supply to
arbitration.
(4) For the purpose of determining whether a corporation has contravened
subsection (1) in connection with the supply or possible supply of
financial services to a person:
- (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.
(5) A reference in this section to financial services is a reference to
financial services of a kind ordinarily acquired for personal, domestic or
household use.
Subdivision DConsumer protection