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Abstract

Those who follow developments in the law relating to guarantees have been confronted in recent times with an ever increasing array of statutory provisions designed to deal with unconscionable conduct. It seems that allegations of unconscionable conduct, in its various forms, on the part of the creditor have become part of the standard defence of those guarantors seeking to set aside the guarantee. It may not be too far fetched to suggest that the enactment of a raft of unconscionability provisions across a range of statutes at both state and federal levels has left many perplexed. Many of the provisions are similar, but not identical. This article examines the scope and application of overlapping provisions in the ASIC Act and TPA which govern unconscionability with respect to financial services and considers their role in relation to contracts of guarantee. It further considers what role the regulator, ASIC, has to play in setting normative standards in a systemic way for banks and financiers when taking guarantees.

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