This view was subsequently adopted in equiticorp

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This view was subsequently adopted in Equiticorp Finance Ltd (in liq.) v BNZ (1993) 32 NSWLR 50 where the New South Wales Court of Appeal refused to overturn a payment which the appellant claimed it had only made because BNZ had subjected it to economic duress. It was clear that BNZ had applied pressure; what was less clear was whether and, if so, how that pressure had gone beyond what was commercially legitimate and become illegitimate — in the sense of being either unlawful or unconscionable. The court found that it had not. Their Honour’s concern not to substitute their own judgement (in hindsight) for the commercial decisions that the parties had made at the time is evident in the judgment of Kirby P (as he then was). He noted: Courts should be even more circumspect about extending the remedy of economic duress to cases of the contracts between substantial businesses than they would be in other cases of equal bargaining power where different considerations obtain. ... The parties in this case had available to them legal and managerial advice of a high order. Each was accustomed to making large decisions affecting millions of dollars and the lives of thousands of people. Similar considerations were held to be relevant in News Ltd v Australian Rugby Football League Ltd (1996) 58 FCR 447 (the ‘Super League’ case). There, the pressure that the ARL exerted on its member clubs to ‘persuade’ them not to contract with News Ltd was held not to be illegitimate and, therefore, the clubs were held not to have been subjected to economic duress. Unfortunately, the exact ambit of economic duress is not yet completely clear. What is clear, however, is that it is an accepted part of our law and that, in appropriate cases, it provides a means whereby a party on whom a contractual obligation has been unconscionably imposed can escape that obligation. Legislation In Australia duress is also dealt with in s 50(1) of the Australian Consumer Law. It provides that ‘a person must not use physical force, or undue harassment or coercion’ in connection
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© Stephen Graw 2012 34 with the supply of goods or services or of land or in connection with payment for those things. The section has not been extensively used but in appropriate cases it allows someone who has been subject to duress to access not only the common law remedies but also all of the statutory remedies available under the Australian Consumer Law. Undue influence Pleas of undue influence are used to overturn contracts or gifts which one party (the dominant) has induced another (the servient) to make by unfairly exploiting his or her influence over the servient in order to obtain the benefit. If undue influence can be shown any resulting gift or agreement can be set aside and the courts can order the dominant party to return any benefit that he or she obtained through the wrongful exercise of that influence.
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