sec.208Unconscionable conduct

### sec.208 Unconscionable conduct A marketeer must not, in connection with the sale, or for promoting the sale, or for providing a service in connection with the sale, of residential property in Queensland, engage in conduct that is, in all the circumstances, unconscionable. For remedies for a contravention, see part 9 (QCAT proceedings). Without limiting the matters to which regard may be had to decide whether a marketeer has contravened subsection (1) , regard may be had to— the relative strengths of the bargaining positions of the marketeer and the buyer of the property; and whether, because of conduct engaged in by the marketeer, the buyer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the marketeer; and whether the buyer was able to understand any documents relating to the sale, or promotion of the sale, or provision of a service in connection with the sale, of the property; and whether undue influence or pressure was exerted on, or any unfair tactics were used against, the buyer or the person acting for the buyer by the marketeer in connection with the marketing of the property; and the amount for which, and the circumstances under which, the buyer could have acquired an equivalent or similar property from another person; and the extent to which the marketeer’s conduct towards the buyer was consistent with the marketeer’s conduct in similar transactions between the marketeer and other like buyers; and the extent to which the marketeer unreasonably failed to disclose to the buyer— any intended conduct of the marketeer that might affect the interests of the buyer; and any risks to the buyer arising from the marketeer’s intended conduct, if the risks are risks the marketeer should have foreseen would not be apparent to the buyer; and the extent to which the marketeer failed to disclose to the buyer— any relationships of the marketeer to other marketeers in connection with the sale, or for promoting the sale, or for providing a service in connection with the sale, of the property; or anything required to be disclosed under this Act; and the extent to which the marketeer was unwilling to negotiate the terms and conditions of any contract for the sale of the property with the buyer; and whether or not it was reasonably practicable for the buyer to negotiate for the alteration of, or to reject, any of the provisions of the contract for the property; and whether or not the buyer or a person who represented the buyer was reasonably able to protect the interests of the buyer because of the age or physical or mental condition of the buyer or the person who represented the buyer; and whether or not, and if so when, the buyer obtained, or an opportunity was made available to the buyer to obtain, independent legal, valuation or other expert advice; and the extent to which the provisions of the contract and the contract’s legal and practical effect were accurately explained to the buyer and whether or not the buyer understood the provisions and their effect; and whether the marketeer took measures to ensure the buyer understood the nature and implications of the transaction and, if so, the adequacy of the measures; and whether at the time the contract was entered into, the marketeer knew, or could have ascertained by reasonable inquiry of the buyer at the time, that the buyer could not pay in accordance with its terms or not without substantial hardship; and the extent to which the marketeer and the buyer acted in good faith. A person may make a claim, under the Administration Act , against the fund if the person suffers financial loss because of a contravention of this section. (sec.208-ssec.1) A marketeer must not, in connection with the sale, or for promoting the sale, or for providing a service in connection with the sale, of residential property in Queensland, engage in conduct that is, in all the circumstances, unconscionable. For remedies for a contravention, see part 9 (QCAT proceedings). (sec.208-ssec.2) Without limiting the matters to which regard may be had to decide whether a marketeer has contravened subsection (1) , regard may be had to— the relative strengths of the bargaining positions of the marketeer and the buyer of the property; and whether, because of conduct engaged in by the marketeer, the buyer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the marketeer; and whether the buyer was able to understand any documents relating to the sale, or promotion of the sale, or provision of a service in connection with the sale, of the property; and whether undue influence or pressure was exerted on, or any unfair tactics were used against, the buyer or the person acting for the buyer by the marketeer in connection with the marketing of the property; and the amount for which, and the circumstances under which, the buyer could have acquired an equivalent or similar property from another person; and the extent to which the marketeer’s conduct towards the buyer was consistent with the marketeer’s conduct in similar transactions between the marketeer and other like buyers; and the extent to which the marketeer unreasonably failed to disclose to the buyer— any intended conduct of the marketeer that might affect the interests of the buyer; and any risks to the buyer arising from the marketeer’s intended conduct, if the risks are risks the marketeer should have foreseen would not be apparent to the buyer; and the extent to which the marketeer failed to disclose to the buyer— any relationships of the marketeer to other marketeers in connection with the sale, or for promoting the sale, or for providing a service in connection with the sale, of the property; or anything required to be disclosed under this Act; and the extent to which the marketeer was unwilling to negotiate the terms and conditions of any contract for the sale of the property with the buyer; and whether or not it was reasonably practicable for the buyer to negotiate for the alteration of, or to reject, any of the provisions of the contract for the property; and whether or not the buyer or a person who represented the buyer was reasonably able to protect the interests of the buyer because of the age or physical or mental condition of the buyer or the person who represented the buyer; and whether or not, and if so when, the buyer obtained, or an opportunity was made available to the buyer to obtain, independent legal, valuation or other expert advice; and the extent to which the provisions of the contract and the contract’s legal and practical effect were accurately explained to the buyer and whether or not the buyer understood the provisions and their effect; and whether the marketeer took measures to ensure the buyer understood the nature and implications of the transaction and, if so, the adequacy of the measures; and whether at the time the contract was entered into, the marketeer knew, or could have ascertained by reasonable inquiry of the buyer at the time, that the buyer could not pay in accordance with its terms or not without substantial hardship; and the extent to which the marketeer and the buyer acted in good faith. A person may make a claim, under the Administration Act , against the fund if the person suffers financial loss because of a contravention of this section. - (a) the relative strengths of the bargaining positions of the marketeer and the buyer of the property; and - (b) whether, because of conduct engaged in by the marketeer, the buyer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the marketeer; and - (c) whether the buyer was able to understand any documents relating to the sale, or promotion of the sale, or provision of a service in connection with the sale, of the property; and - (d) whether undue influence or pressure was exerted on, or any unfair tactics were used against, the buyer or the person acting for the buyer by the marketeer in connection with the marketing of the property; and - (e) the amount for which, and the circumstances under which, the buyer could have acquired an equivalent or similar property from another person; and - (f) the extent to which the marketeer’s conduct towards the buyer was consistent with the marketeer’s conduct in similar transactions between the marketeer and other like buyers; and - (g) the extent to which the marketeer unreasonably failed to disclose to the buyer— (i) any intended conduct of the marketeer that might affect the interests of the buyer; and (ii) any risks to the buyer arising from the marketeer’s intended conduct, if the risks are risks the marketeer should have foreseen would not be apparent to the buyer; and - (i) any intended conduct of the marketeer that might affect the interests of the buyer; and - (ii) any risks to the buyer arising from the marketeer’s intended conduct, if the risks are risks the marketeer should have foreseen would not be apparent to the buyer; and - (h) the extent to which the marketeer failed to disclose to the buyer— (i) any relationships of the marketeer to other marketeers in connection with the sale, or for promoting the sale, or for providing a service in connection with the sale, of the property; or (ii) anything required to be disclosed under this Act; and - (i) any relationships of the marketeer to other marketeers in connection with the sale, or for promoting the sale, or for providing a service in connection with the sale, of the property; or - (ii) anything required to be disclosed under this Act; and - (i) the extent to which the marketeer was unwilling to negotiate the terms and conditions of any contract for the sale of the property with the buyer; and - (j) whether or not it was reasonably practicable for the buyer to negotiate for the alteration of, or to reject, any of the provisions of the contract for the property; and - (k) whether or not the buyer or a person who represented the buyer was reasonably able to protect the interests of the buyer because of the age or physical or mental condition of the buyer or the person who represented the buyer; and - (l) whether or not, and if so when, the buyer obtained, or an opportunity was made available to the buyer to obtain, independent legal, valuation or other expert advice; and - (m) the extent to which the provisions of the contract and the contract’s legal and practical effect were accurately explained to the buyer and whether or not the buyer understood the provisions and their effect; and - (n) whether the marketeer took measures to ensure the buyer understood the nature and implications of the transaction and, if so, the adequacy of the measures; and - (o) whether at the time the contract was entered into, the marketeer knew, or could have ascertained by reasonable inquiry of the buyer at the time, that the buyer could not pay in accordance with its terms or not without substantial hardship; and - (p) the extent to which the marketeer and the buyer acted in good faith. - (i) any intended conduct of the marketeer that might affect the interests of the buyer; and - (ii) any risks to the buyer arising from the marketeer’s intended conduct, if the risks are risks the marketeer should have foreseen would not be apparent to the buyer; and - (i) any relationships of the marketeer to other marketeers in connection with the sale, or for promoting the sale, or for providing a service in connection with the sale, of the property; or - (ii) anything required to be disclosed under this Act; and