• myGriffith
    • Staff portal
    • Contact Us⌄
      • Future student enquiries 1800 677 728
      • Current student enquiries 1800 154 055
      • International enquiries +61 7 3735 6425
      • General enquiries 07 3735 7111
      • Online enquiries
      • Staff phonebook
    View Item 
    •   Home
    • Griffith Research Online
    • Journal articles
    • View Item
    • Home
    • Griffith Research Online
    • Journal articles
    • View Item
    JavaScript is disabled for your browser. Some features of this site may not work without it.

    Browse

  • All of Griffith Research Online
    • Communities & Collections
    • Authors
    • By Issue Date
    • Titles
  • This Collection
    • Authors
    • By Issue Date
    • Titles
  • Statistics

  • Most Popular Items
  • Statistics by Country
  • Most Popular Authors
  • Support

  • Contact us
  • FAQs
  • Admin login

  • Login
  • Unconscionable or unfair dealing in asset-based lending in Australia

    Thumbnail
    View/Open
    99000_1.pdf (140.3Kb)
    Author(s)
    Rajapakse, Pelma
    Griffith University Author(s)
    Rajapakse, Pelma J.
    Year published
    2014
    Metadata
    Show full item record
    Abstract
    This article examines the extent to which the doctrine of unconscionable conduct protects the interests of victims of exploitative asset-based lending. It considers the possibility of a loan made to a borrower unable to conserve his or her own interests and secured on the family home being set aside through general principles of unconscionable dealing in equity, including the current requirement to show a 'situational special disadvantage', under the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act), and the Competition and Consumer Act 2010 (Cth). Moreover, this study investigates the courts' ...
    View more >
    This article examines the extent to which the doctrine of unconscionable conduct protects the interests of victims of exploitative asset-based lending. It considers the possibility of a loan made to a borrower unable to conserve his or her own interests and secured on the family home being set aside through general principles of unconscionable dealing in equity, including the current requirement to show a 'situational special disadvantage', under the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act), and the Competition and Consumer Act 2010 (Cth). Moreover, this study investigates the courts' jurisdiction to reopen an unjust housing loan contract under the National Consumer Credit Protection 2009 (Cth) (Consumer Credit Code) and the Contracts Review Act 1980 (NSW). First, the article examines whether the lender knew of the vulnerability of the borrower. This article argues that the information given in a loan application may in some cases provide a basis for finding that a lender had knowledge of the inability of a borrower to look after his or her own interests for the purposes of establishing unconscionable dealing and unfair conduct. The case analysis revealed that asset-based lending may constitute unconscionable conduct in certain circumstances; however asset-based lending itself is not unconscionable. Second, a lender may have a duty to make further enquiries regarding a borrower's circumstances in cases where the loan documentation is incomplete or irregular. Third, the courts are willing to consider the information contained in the loan documentation when determining whether a lender had knowledge of a borrower's personal and financial circumstances. Lastly, the requirement that a borrower should 'do equity' and account for any benefit they have received has a significant impact on the utility of the relief granted by the courts.
    View less >
    Journal Title
    Competition & Consumer Law Journal
    Volume
    22
    Issue
    1
    Publisher URI
    http://www.lexisnexis.com.au/en-au/products/competition-and-consumer-law-journal.page
    Copyright Statement
    © 2014 Lexis Nexis. The attached file is reproduced here in accordance with the copyright policy of the publisher. Please refer to the journal website for access to the definitive, published version.
    Subject
    Commercial and Contract Law
    Law
    Publication URI
    http://hdl.handle.net/10072/65471
    Collection
    • Journal articles

    Footer

    Disclaimer

    • Privacy policy
    • Copyright matters
    • CRICOS Provider - 00233E
    • TEQSA: PRV12076

    Tagline

    • Gold Coast
    • Logan
    • Brisbane - Queensland, Australia
    First Peoples of Australia
    • Aboriginal
    • Torres Strait Islander