The 'Cost to Complete' in a project financing agreement defined by reference to a development approval is not limited to costs under the building contract and does not have an ambulatory operation that automatically excludes costs when works are removed from the building contract. In assessing whether refinancing transactions are uncommercial under s 588FB, the court must consider the totality of the transaction including the benefits of continued financing and the commercial reality that a reasonable businessperson might accept unfavourable terms to preserve a project. A financier's silence in response to a builder's inquiries about the existence of defaults does not constitute misleading or deceptive conduct where the financier has no obligation to disclose and continues to fund the project.
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