Unformatted text preview: domination of the other person. To be successful in such a plea, you must be able to establish an undermining of the weaker party’s independence of decision making. In other words, you must be able to establish an actual influence on the mind of the weaker party at the time of the contract as in Garcia v National Australia Bank Ltd (1998) 194 CLR 395.
Rebutting the presumption: To rebut a presumption of undue influence, the party accused of undue influence must establish that the transaction was the result of a free exercise of the will of the other party. There are three basic ways to rebut a presumption of undue influence:
1. By proving the other party had independent advice: person must have access to and took independent advice the advice was fully informed advice (person had all the facts available when the advice was taken) 2 . By proving that independent advice would have been disregarded; and
3. By proving the other party’s ability to form an independent judgment. Unconscionable Contracts
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