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2 years ago

By Professor Bryan Horrigan Report Co-Author Louis Waller Chair of ...

By Professor Bryan Horrigan Report Co-Author Louis Waller Chair of ...

Unconscionability under

Unconscionability under TPA s51AB & AC& s12CB & CC ASIC Act – indicatorsParties’ relative bargaining strengthsWhether conditions extend beyond what is reasonably necessary to protectlegitimate interestsUnderstanding of the documentsAny undue influence, pressure, or unfair tactics by a party or someone acting ontheir behalfComparative prices and terms for availability of goods and services elsewhereSections 51AC & s12CC only: Consistent with treatment of similar parties/transactions Compliance with any relevant industry codes Unreasonable failure to disclose (i) intended conduct which might affect the otherparty’s interests and (ii) risks to the other party arising from that conduct whichreasonably they might not foresee Willingness to negotiate terms and conditions Whether parties act in good faith Whether contractual right exists to vary unilaterally a term or condition of acontract

Meanings & Levels of Unconscionability RegulationUnder ‘the Unwritten Law’ (4 categories as described by Paul Finn): [1] Unconscionability as the underlying concept for Equity as a whole [2] Unconscionability as an element or finding that is essential forspecific equitable/other actions (eg estoppel, relief against forfeiture,unconscionable dealings, unilateral mistake etc)- Coercion/exploitation/advantage-taking- Unconscionable exercise of rights, retention of benefits etc [3] Doctrines & remedies associated with unconscionable dealings &exploitation, advantage-taking, and defective understanding:– ‘spousal guarantees’ rules (eg Yerkey v Jones, Garcia)– ‘special disadvantage’ rule (eg Amadio)– Others (eg Bridgewater v Leahy) [4] Unconscionability as a direct ground of relief in its own right,unmediated by conventional doctrines (eg Lenah Game Meats v ABC)13