A mortgage originator that processes a loan application with knowledge of irregularities in the borrower's financial information, fails to interview the borrower as required, and submits massaged documentation acts unconscionably. Such conduct is attributable to the lender where the substance of the relationship between the mortgage originator and lender establishes an implied agency, notwithstanding a contractual provision describing the originator as an independent contractor. Contributory negligence under Part 10 of the Wrongs Act 1958 (Vic) is not available as a defence to a claim based on unconscionable conduct, because such a claim does not arise from 'negligence' as defined in s 43 of the Act.
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