A mortgage broker retained by a borrower is prima facie the agent of the borrower, not the lender, and payment of an introducer's commission does not without more establish agency. The responsible lending conduct obligations in Chapter 3 of the National Consumer Credit Protection Act 2009 (Cth) do not apply retrospectively to loans entered into before 1 April 2010, though a lender's failure to make reasonable inquiry may still be relevant under the unjust transaction provisions of s 76 of the National Credit Code. A borrower's inability to afford a loan, or inequality of bargaining power without abuse, is insufficient alone to establish an unjust transaction.
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