124Guidelines for reopening credit contracts, consumer leases, and buy-back transactions

1. In deciding whether section 120 applies and whether to reopen a credit contract, consumer lease, or buy-back transaction (an arrangement), the court must, to the extent that the following matters are applicable in the particular circumstances, have regard to:

2. all the circumstances relating to the making of the arrangement, or the exercise of any right or power conferred by the arrangement, or the inducement to enter into the arrangement; and
3. whether the creditor or transferee has, in relation to any aspect of the arrangement (including the creditor's or transferee's conduct in entering into the arrangement), complied with the lender responsibility principles (see section 9C(2)); and
4. the relative bargaining power of the parties; and
5. whether, taking account of the particular characteristics of the debtor, lessee, or occupier (for example, his or her age or physical or mental condition), that person, or the person's representative, was reasonably able to protect that person's interests; and
6. in the case of a credit contract, whether the contract is a consumer credit contract; and
7. in the case of a contract to which subpart 6A of Part 2 applies, the need to protect consumers in accordance with the purpose of that subpart; and
8. whether, before entering into the arrangement, the debtor, lessee, or occupier obtained independent legal or other professional advice in relation to that arrangement; and
9. whether the creditor, lessor, or transferee, or any person acting in the interests of that person, subjected the debtor, lessee, or occupier to unfair pressure or tactics or otherwise unfairly influenced the debtor, lessee, or occupier to enter into the arrangement and, if so, the nature and extent of that unfair conduct; and
10. the terms of other arrangements under which the debtor, lessee, or occupier could have obtained the same or substantially similar credit, hired goods, or finance from a person other than the creditor, lessor, or transferee, including—
    1. the costs of borrowing, costs of the lease, or costs of the buy-back transaction (as the case may be) under those other arrangements; and
    2. whether the arrangement under consideration imposes significantly more onerous terms on the debtor, lessee, or occupier than would be imposed under those other arrangements; and
11. the amount payable by the debtor, lessee, or occupier under the arrangement; and
12. the amount of any payment required as a condition of the full prepayment under the arrangement, including the creditor's expenses and the likelihood that the amount repaid could be reinvested on similar terms; and
13. the form of the arrangement, including whether it is expressed in plain language in a clear, concise, and intelligible manner; and
14. whether the terms of the arrangement—
    1. allow the debtor, lessee, or transferee to be reasonably able to comply with his or her obligations under the arrangement; and
    2. are reasonably necessary to protect the interests of the creditor, lessor, or transferee; and
15. the length of time the debtor, lessee, or occupier has had to remedy any default; and
16. if the creditor, lessor, or transferee has refused to release, or has agreed to release subject to conditions, a security interest relating to the arrangement, the obligations secured by the security interest and the extent of security that remains after the release or conditional release; and
17. whether action by the creditor, lessor, or transferee in relation to the enforcement of, or recovery under, the arrangement was lawful in the circumstances; and
18. any other matters that the court thinks fit.

19. If a guarantee is treated as forming part of the credit contract under section 119(1), the references to the debtor in subsection (1)(d), (f), (g), (i), and (l) must, in relation to the guarantee, be treated as including the guarantor.