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Undue Influence + Unconscionable Conduct (Unconscionable Conduct [VOID]…
Undue Influence + Unconscionable Conduct
Undue Influence [VOIDABLE]
One party has long term influence over other party and takes advantage of it [Johnson v Buttress(1936)]
Presumed undue influence [Allcard v Skinner (1887)]
Doctor/patient
Parent/child
Trustee/beneficiary
Religious leader/follower
Lawyer/client
No presumed undue influence
Accountant/client
Bank/client
Principal/agent
Employer/employee
Husband/wife
Carer/patient
Exception
Johnson v Buttress (1936)
Unconscionable Conduct [VOID]
One party unfairly takes advantage of special weakness/disadvantage of other party [Commercial Bank of Australia v Amadio (1983)]
other party knows or should have known
the other party takes unfair advantage
one of the parties has a special weakness/disadvantage
Statute Law from ACL [Use together with case law!]
S20 ACL [General unconscionable conduct]
"A person must not, in trade or commerce, engage in conduct that is unconscionable, within the meaning of the unwritten law from time to time."
S21(1) ACL [For when there is supply of goods and services]
"A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services to a person, engage in conduct that is, in all the circumstances, unconscionable."
Court can consider [Just state which letter applies, not necessary for all to apply]
b) whether the consumer was required to comply with conditions not reasonably necessary for the protection of the other party
c) whether the consumer understood documents relating to the transaction
a) relative strengths of bargaining position of the parties
d) whether any undue influence or unfair tactics were used against the consumer
e) the price and circumstances under which the consumer could have acquired the goods or services from a third party
Conclusion
Terminate contract + Damages [S236 ACL]
Compensation[ S237 ACL] + Ancillary relief [S243 ACL] + Pencuniary penalty [S224 ACL]