Unconscionable Conduct Q and A.docx

Unconscionable Conduct Q and A.docx - UNCONSCIONABLE...

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UNCONSCIONABLE CONDUCT QUESTIONS : Unconscionable conduct originates 原来 from common law/equity law but has since been reformed by the Australian Consumer Law . The purpose of this area of law is to prevent stronger parties exploiting 利用 weaker parties. When analysing questions on unconscionable conduct, it is important to know: How common law unconscionable conduct, s20 and s21 of the ACL are different; And which one to apply. Common Law Unconscionable Conduct : When to apply ? If conduct is NOT in trade or commerce, eg Louth v Diprose (infatuation case) What must plaintiff prove under common law unconscionable conduct : 1. Special Disability – serious disadvantage that relates to the transaction. Includes poverty or need of any kind, sickness, age, sex, weakness of body or mind, drunkenness, illiteracy or lack of education, infatuation 痴情 2. Stronger party has actual or constructive knowledge 你本应该知道,即使你不知 3. D took advantage of disadvantage. Note: if step 1-2 are shown, there is a rebuttable presumption 可辨驳的假定 of 3. This means it is up to the stronger party to disprove taking advantage of the disability. Remedy: if a finding of unconscionable conduct is made, the innocent party may elect 选择 to rescind 撤销 the contract (contract is voidable 可撤销 ) Case examples : Louth v Diprose : man infatuated with woman CBA v Amadio: elderly parents had disability in relation to bank guarantee 担保 (limited Enlgish, inexperience with business transactions) Blomey v Ryan: an elderly farmer had a disability (intoxicated 醉人 ) and could cancel sale of house. Unconscionable Conduct in s21 : When to apply ? If conduct is in trade or commerce, the P is not a PLC, and the conduct is in connection to goods and services. Steps in detail below 1. Explain why s21 applies ( when to apply ) a. Conduct in Trade or Commerce b. The conduct is “in connection” with goods or services c. P is not a PLC 上市公司 2. Explain that unconscionability in this section is not the common law definition (s21(4), and is based on the ordinary meaning of unconscionability (and no need to prove special disability).
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a. Director of Consumer Affairs Victoria v Scully & Anor [2013] VSCA 292 Court of Appeal affirmed 确认 that unconscionability not limited to common law definition and involves some “moral taint” b. Try and explain the conduct in a way that sounds morally reprehensible 道德上应受 谴责 or very unreasonable. However, the D would attempt to argue reasonable grounds 原因 for its conduct c. Know similar words to unconscionable, using most appropriate ones i.
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