Bester V Perpetual Trustee Co Ltd

If one party pressures the contractual consent of another by duress the contract is voidable by that other party (See Also s 52A TPA and s 39 FTA). The common law has long recognised that duress, in the form of coercion of the plaintiff’s will through illegitimate pressure or threats to the plaintiff’s interests, render a contract voidable (Barton v Armstrong).

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Traditionally, the common law concept of duress was limited to actual or threatened violence to the person of the contracting party or their family or near relatives constitutes duress (Seear v Cohen; Barton v Armstrong).

It appears that today, the emphasis appears to have shifted away from the notion of coercion of the will of the plaintiff to the lack of legitimacy in the pressure or compulsion (Crescendo Management Pty Ltd v Westpac Bank Corporation). 2. Types of Duress There are three types of duress – threats to the person, threats to personal property and economic duress. a) Threats to person: The traditional common law concept of duress was limited to actual or threatened violence to the person of the plaintiff of their family (Farmers’ Cooperative Executors & Trustees Ltd v Perks).

Where a threat is made against a party’s life and was one of the reasons for that party entering into a contract, relief should be granted for duress. It is immaterial that there may have been other reasons (including good business sense) if the threat contributed to that decision (Barton v Armstrong). This notion extends to actual or threatened imprisonment or confinement (Barton v Armstrong).

In contrast, a contract resulting from a threat of criminal prosecution for which there is sufficient ground will not amount to duress, provided that the person being threatened is provided valuable consideration for entering the contract and there is no agreement to prevent the plaintiff from informing the police (ie. to stifle prosecution) (Scolio Pty Ltd v Cote). For example, if A says to B that he must repay stolen monies or the police will intervene, this will not amount to duress as there is consideration, that is, A giving B time to repay the debt. ) Threats to personal property: Where money is paid in order to avoid the wrongful seizure of goods or in order to obtain the release of goods wrongfully seized may be classified as duress to personal property. These goods may be recovered in what is known as restitution as ‘money had and received’ (Astley v Reynolds). Where conduct amounting to duress to personal property is a reason for the plaintiff entering into a contract, that conduct will enable the plaintiff to avoid the contract (Hawker Pacific Pty Ltd v Helicopter Charter Pty Ltd).

No express threat to the goods needs to be made if the defendant’s conduct makes the plaintiff reasonably believe that their goods are in danger (Hawker Pacific Pty Ltd v Helicopter Charter Pty Ltd). Note: Also, there is no distinction between recovery of money paid under compulsion in order to get possession of goods wrongfully detained and money paid under a contract made under duress to goods (Hawker Pacific Pty Ltd v Helicopter Charter Pty Ltd). ) Economic duress: A contract entered into under pressure to a party’s economic interests is voidable on the grounds of duress (Universe Tankships Inc v International Transport Workers’ Federation). Economic duress may therefore be defined as actual or threatened conduct harmful to the plaintiff’s economic interests. The proper approach to determine whether there has been an economic duress, is to ask: (Crescendo Management v Westpac Banking Corp) 1. Was any pressure applied to induce the victim to enter into the contract? ; and 2. Did the pressure go beyond what the law was prepared to tolerate as being legitimate?

Pressure may be illegitimate if it consists of unlawful threats or amounts to unconscionable conduct. Although these categories are not closed, even overwhelming pressure not amounting to unconscionable or unlawful conduct will not necessarily constitute economic duress (Crescendo Management v Westpac Banking Corp). For the purposes of economic duress, ‘unconscionable conduct’ refers to the effect of the pressure, upon the quality of the consent of the pressured party, rather than the quality of the conduct of the party against which relief is sought (Westpac Banking Corporation v Cockerill).

Economic duress may include a threat to break a contract unless it is renegotiated without any legal justification for doing so (North Ocean Shipping Co Ltd v Hyundai Construction Co Ltd (The Atlantic Baron)). Contract Modification Cases: Cases involving contract modification may be difficult to resolve in practice. It has been suggested that a threat to breach a contract unless it is modified may be distinguished from a warning, request or offer.
• A threat is a proposal to bring about an unwelcome event unless the recipient of the proposal does something (Atlas Express Ltd v Kafco Ltd). A warning is a prediction that an unwelcome event will happen or that it will happen if circumstances arise – this is different to a threat, as the speaker has no control over the unwelcome consequence (Williams v Roffey Brothers and Nicholls). o For example, subcontractors whose costs rise dramatically midway through the contract sometimes advise the head contractor that unless they are paid more, they will be forced to breach the contract. If as a result of higher costs such subcontractors eally cannot complete the contract because they face bankruptcy if they continue, then they may only be giving a warning that they do not have the resources to finish the job. But subcontractors who make such statements when they are in fact able to complete the contract might be seen as making a threat
• A request occurs where a party to a contract merely asks for new terms – perhaps combined with an explanation of the reason for change. No unwelcome consequence is proposed, nor is an unwelcome consequence made conditional on non-performance of some action. An offer occurs where a person making the proposal is attempting to alter the recipient’s behaviour, but the difference is that the proposal is not unwelcome. Mere commercial pressure, even where it is taken to the extreme, does not amount to illegitimate pressure (Smith v William Charlick Ltd). Normally, a threat to do something that is lawful is not illegitimate (Westpac Banking Corporation v Cockerill). Therefore, a threat to commence legal proceedings will not usually amount to duress (Tejani v Gerrard).

However, there may be circumstances in which such a threat is combined with an unlawful demand and therefore may be regarded as illegitimate (Kaufman v Gerson). While an unlawful at, such as breach of contract or commission of a tort (Cadbury Schweppes v Australian Liquor Hospitality & Miscellaneous Workers’ Union), or threat an unlawful act would be illegitimate, there is no need in such a case for the defendant to be aware that it is unlawful (Spira v Commonwealth Bank of Australia).

The presence or absence of protest is a relevant consideration when deciding whether the victim has acted voluntarily or the pressure was illegitimate (Mason v New South Wales). Given this, it has been recognised that there may be circumstances where the victim has failed to object when the pressure is at its maximum (Hawker Pacific Pty Ltd v Helicopter Charter Pty Ltd). 3. Causal Connection The alleged illegitimate pressure must be a material cause of the contract being formed. The pressure only needs to be a material cause; it need not be the sole or even the dominant inducement.

It will be immaterial that there was a reason other than the threat, such as good business reasons (Barton v Armstrong). Illegitimate pressure will have no effect on the contract unless it had a material part to play in its formation, no matter how extreme. 4. Remedies A wronged party can seek redress through rescission, restitution or damages: a) Rescission: As a contract entered into under duress is rendered voidable, not void, the principle remedy for duress is rescission of the contract (North Ocean Shipping Co Ltd v Hyundai Construction Co Ltd).

The limits on the right to rescind the contract still operate in the case of duress: affirmation, lapse of time, impossibility of restitutio in integrum, innocent third party rights have interfered or execution of the contract. b) Restitution: In an appropriate case, restitution may offer an alternative remedy in the form of an action for recovery of money paid (Hawker Pacific v Helicopter Charter). The modern basis for such a restitutionary claim is unjust enrichment at the plaintiff’s expense.

However, the restitutionary claim is not available while the contract under which the payment was made remains on foot. Therefore, it is first necessary for the contract to have been either discharged or rescinded before a claim in restitution may be made (The Evia Luck). c) Damages: There are conflicting views about whether damages may be recovered for duress. It has been suggested that duress is a tort if it causes damage or loss and thereby gives a right to claim damages (Universe

Tankships of Monrovia v International Transport Workers’ Federation (the Universe Sentinel)). It has also been suggested that while the particular form taken by economic duress in a given case may itself be a tort, conduct does not have to be tortious in order to constitute duress (Universe Tankships of Monrovia v International Transport Workers’ Federation (the Universe Sentinel)). 5. Duress under Statute The Trade Practices Act 1974 (Cth) and Fair Trading Act 1989 (Qld) prohibit certain forms of duress: For example, the statutes prohibit the use of physical force or undue harassment or coercion in connection with the supply or possible supply of goods or services to a consumer or the payment for goods or services by a consumer (s 60 TPA & s 55 FTA).
• There is also a prohibition against physical force or undue harassment or coercion in connection with the sale or grant, or the possible sale or grant, of an interest in land or the payment for an interest in land (s 53A(2) TPA & s 40A(2) FTA). In cases where the statutes have prohibited duress, they make available a wide range of remedies, including: o injunctions (s s 80 TPA & s 98 FTA) o ancillary orders including rescission, restitution, and variation of the contract (s 87 TPA & s 100 FTA). o Additionally, unlike the common law, there is also no doubt that the court may award damages in the appropriate case (s 82 TPA & s 99 FTA). UNDUE INFLUENCE 1. Generally

The basis of the equitable jurisdiction to set aside a contract on the ground of undue influence is the prevention of an unconscientious use of any special capacity or opportunity to affect the victim’s will or freedom of judgment that may exist or arise (Johnson v Buttress). ‘Undue influence’ involves one person who occupies a position of ascendancy or influence over another improperly using that position for the benefit for themself or someone else, so that the acts of the person influenced cannot be said to be his or her voluntary acts (Johnson v Buttress).

The party in the position of ascendancy falls under a duty containing fiduciary characteristics, since it is that person’s duty to use the position of influence in the interests of no one except the person governed by the ascendant person’s judgment or who trusts the ascendant person (Johnson v Buttress). 2. Classes of undue influence If one party induces the consent of the other by undue influence the contract is voidable in equity. There are two classes of undue influence (Allcard v Skinner).

The first class is where the court is satisfied that the transaction is the result of actual undue influence exercised by a party in a position of ascendancy over another for the purpose of inducing the transaction. The second is where the relationship between the parties at the time of the transaction – or shortly before – is such as to raise the presumption that the ascendant party exercised influence over the other (Farmers’ Co-operative Executors & Trustees Ltd v Perks; Johnson v Buttress). i) Class 1 – Actual undue influence This class concerns a transaction which has been entered into as a result of actual undue influence. Where there is no special relationship between the parties in which case the party alleging undue influence must prove that he/she was subjected to influence which excluded his/her free consent (National Westminster Bank v Morgan; Johnson v Buttress) The elements required are as follows – (Bank of Credit & Commerce International SA v Aboody)
• One party (ascendant party) to the ransaction has the capacity to influence the other (trusting party)
• That influence was exercised
• Its exercise was undue
• Its exercise brought about the transaction Note: Circumstances that constitutes duress would also establish a case of actual undue influence. For example, an agreement entered into under a threat that failure to do so would result in the party’s son being prosecuted was held to constitute undue pressure and was the equivalent of actual undue influence (Public Service Employees’ Credit Union Co-operative v Campion). (ii) Class 2 – Presumed undue influence

Where there is a special or confidential relationship between the parties, it is presumed that undue influence induced any transaction between the parties. The onus is on the party in who confidence was reposed to show that undue influence was not used. There are two subclasses under this class – a) Class 2A – Recognised relationships: This contains well-defined categories accepted as naturally giving rise to a relationship of influence (Johnson v Buttress). These include the following relationships –
• Trustee and beneficiary (Dougan v MacPherson)
• Solicitor and client (McPherson v Watt) Doctor and patient (Bar-Mordecai v Hillston)
• Parent and child (Phillips v Hutchinson)
• Guardian v ward (Taylor v Johnston)
• Spiritual advisor and devotee (Norton v Relly)
• Man and fiancee (at least in the past) (cf. Zamet v Hyman) Common Characteristics The characteristic common to all these relationships appears to be that the first-named person in each relationship is reasonably expected to advise and give guidance to the other, in and for the purpose of such relationship, solely in the interests and for the benefit of the other (Union Fidelity Trustee Co of Australia v Gibson).

Parent-Child Relationships In the case of a parent-child relationship, no presumption arises where the child is emancipated from the control and authority of the parent (Lamotte v Lamotte). This is a question of fact, taking into effect the same kind of considerations as are relevant to deciding whether there was a class 2B case of proven relationship of influence (Powell v Powell). Also, no presumption arises where a child is the dominant party and the parent is the claimant, unless it is a class 2B proven relationship of influence (Whereat v Duff).

Whether presumed undue influence will arise in these situations will require a consideration of the matters listed below. Spiritual Relationships Cases of a religious kind may be difficult, since such influence may be both powerful and hard to detect (Allcard v Skinner). However, the power of religious impressions under an ascendant spiritual adviser may be seen as more powerful than anything inherent in the authority of a guardian (or even parental authority) with its ability to work upon passions, fears, hopes and consciences (Huguein v Baseley).

Whether in any particular case a relationship in a religious context will be sufficient to found a presumption will depend upon whether the evidence establishes a reliance, dependence or trust on the part of the claimant leading to a corresponding ascendancy which makes the ascendant party capable of influencing making of the gift or transaction in question (Quek v Biggs). Excluded Relationships There is authority to exclude such relationships as husband and wife (Bank of Montreal v Stuart), banker, accountant or financial adviser and client (Cowen v Piggot). ) Class 2B – Relationships attracting presumption: The category of relationships in which undue influence is not closed. It rests upon principle, which applies whenever one party occupies or assumes towards another a position that naturally involves an ascendancy or influence over that other, or a dependence or a trust on his or her part. When examining whether a relationship gives rise to a presumption of influence, the court will take into account such matters as – (Union Fidelity Trustee Co of Australia v Gibson): The standard of intelligence, education, character and personality of the claimant
• The age, state of health, and blood relationship of the claimant
• The experience or lack of it in business affairs of the claimant
• The length of friendship or acquaintanceship between the claimant and the other party in the intricacy of their business affairs
• The relevant strength of character and personality of the dominant party
• The opportunity afforded the dominant party to influence the claimant in business affairs

A party who is seeking to avoid the transaction on the basis of undue influence which is not in one of the well established categories should first establish that in the circumstances, undue influence ought to be presumed. The onus of proof will then shift to the party who is trying to rebut the presumption. Where the party alleging undue influence is unsuccessful in showing that undue influence ought to be presumed, they will be left to actual proof of undue influence in the circumstances.

Excluded relationships giving rise to a presumption of influence Although the relationship between husband and wife is generally not regarded as a class 2A relationship that automatically gives rise to a presumption of influence, a particular husband-wife relationship may nevertheless be held to have that character (Farmers’ Co-operative Executors & Trustees v Perks). not rebutted on the evidence.

Similarly, the relationship of banker and customer may become one in which the banker acquires a dominating influence, thus giving rise to a presumption of undue influence. If the banker does acquire a position of dominance and a manifestly disadvantageous transaction is proved, there would be room for a court to presume that it resulted from the exercise of undue influence (National Westminster Bank v Morgan). 3. Rebutting the presumption

Where the parties stand in a relationship in which undue influence is presumed, the party in the position of influence must try to rebut the presumption by satisfying the court that they did not take advantage of the claimant and that the transaction was the independent and well understood act of a person in a position to exercise a free judgment based on information as full as that of the recipient (Johnson v Buttress).

The facts that must be proved to show the court that the trusting party was freed from influence may be different for different relationships, as influence may arise in different ways and to different degrees (Johnson v Buttress). However, relevant factors may include – (Johnson v Buttress):
• the trusting party’s age
• standard of intelligence
• character
• experience The ascendant party may rebut the presumption of undue influence by proving that the trusting party – (Lancashire Loans Ltd v Black): 1.

Knew and understood what he or she was doing; and 2. Was acting independently of any influence arising from the ascendancy Acting Independent of Influence In relation to the second element, it is not necessarily sufficient to prove that the proposal to make the gift or transaction came from the trusting party (Spong v Spong) or that the ascendant party took no active steps to procure the transaction (Allcard v Skinner).

Proof that the trusting party had independent advice (which goes against the trusting party) may be relevant to rebutting the presumption but it is not conclusive (Inche Noriah v Shaik Allie Bin Omar). Where advice is given, it must be both independent and effective for the purpose of enlivening the client’s appreciation of the transaction, its legal effects and the alternatives (if any) that are open to the client (Bester v Perpetual Trustee Co Ltd).

If the trusting party receives independent advice and either misunderstands the advice or is given erroneous advice, resulting in their failure to appreciate or realise the effects of the transaction (financial implications and detriment to themselves inherent in the transaction), equity may still refuse to set aside the transaction if the trusting party otherwise understood the nature of the transaction and acted in relation to it in the full exercise of his or her will (Jenyns v Public Curator).

Where the court is satisfied that the independent advice would have had no effect on the transaction, evidence that the trusting party received advice may be disregarded (Linderstam v Barnett). 4. Undue influence and third party sureties The actual or presumed influence may result from the conduct of a third party. In such a case, beneficiaries who have notice of the circumstances may have the onus cast upon them of proving that the transaction was a free, voluntary and well understood act of the trusting party (Bank of New South Wales v Rogers).

The ‘rule in Garcia v National Australia Bank’ It may be unconscionable to enforce a security provided by a wife as a surety to secure her husband’s debt to a lender where it turns out that the wife did not understand the purport and effect of the transaction. In such a case, the lender must either take steps to explain the transaction to her or reasonably believe that the transaction had been explained to her by a competent, independent and disinterested stranger. Unconscionability may be seen as arising from a combination of the following circumstances, viz that: In fact the surety did not understand the purport and effect of the transaction;
• The transaction was voluntary, in the sense that surety obtained no gain from the contract between the debtor and the creditor that is being guaranteed;
• The lender is assumed to have understood that the wife as surety may have placed trust and confidence in the husband debtor in business matters and therefore to have understood that the husband may not have fully and accurately explained the purport and effect of the transaction to his wife; and
• The lender nevertheless did not itself take steps to explain the transaction to the wife, or find out whether a stranger had explained it to her The ‘purport and effect’ of a transaction means at least the fact of liability, the general extent of the liability and the possible consequences of default (Yerkey v Jones).

It will be insufficient if the wife only misunderstands the degree of risk, or the improvidence of the use to which the borrowed money is put (Yerkey v Jones). Instead, the wife’s misunderstanding must be of a matter material to the liability that the lender is seeking to place upon her (State Bank of New South Wales v Chia). The rule does not apply where the surety is not a volunteer, in the sense that she or he obtains advantage from the transaction (Commonwealth Bank of Australia v Cohen). Mere incidental benefit generally accruing to the wife’s family is not a ‘real benefit’ for these purposes (Armstrong v Commonwealth Bank of Australia). In this respect, the surety may still be a volunteer despite even being a director and shareholder of the debtor company where the ompany is a business run by and under the control of her husband an in which she takes no active interest (Warburton v Whitely). By contrast, a wife has been held not to be a volunteer where the loan secured by the mortgage pays out an existing mortgage on property jointly owned by the husband and wife (Westpac Banking Corp v Paterson). It is yet to be finally resolved whether it is sufficient for the surety to be a volunteer in part only (Elkofairi v Permanent Trustee Co Ltd – where loan has joint and several obligations with the amount discharging the existing mortgage distinct from the balance which the husband uses for his own business, wife might be regarded as a volunteer as to the business portion). 5. Remedy

Where actual undue influence is shown or where it is presumed and cannot be rebutted, the contract is rendered voidable. The limits on the right to rescind still operate in the case of undue influence where: Even where a right to rescind has been lost, a court may still be prepared to order equitable compensation (Mahoney v Purnell) or order an account of profits made on any resale to a third party (Haywood v Roadknight). UNCONSCIONABLE CONDUCT 1. Generally Equity also exercises jurisdiction to set aside a contract which may be described as harsh and unconscionable. The notion of unconscionability is extremely difficult to define. The doctrine of unconscionable conduct was defined as being a ground of relief whenever one party by reason of some ondition or circumstance is placed at a special disadvantage in comparison with another and unfair or unconscious advantage is taken of the opportunity created (Commercial Bank of Australia Ltd v Amadio). The critical element of unconscionable conduct is the defendant’s conduct, which in the circumstances is not consistent with equity or good conscience (Commercial Bank of Australia Ltd v Amadio). In contrast, the focus of undue influence is the plaintiff’s overborne will. Thus, in relation to unconscionable conduct, there is no suggestion that the party seeking to have the transaction set aside did not bring a free, voluntary, and independent judgement to the making of the contract.

Unconscionable conduct is seen as conduct which takes advantage of another’s special disability or disadvantage, in a way that is harsh or oppressive (Commonwealth v Verwayen). 2. Unconscionable conduct in equity Equity will grant relief for unconscionable conduct where the following elements can be proven – (Commercial Bank of Australia v Amadio):
• One party is in a position of special disadvantage to which the other party creates circumstances of unfair advantage;
• The other party knows or ought to know of that special disadvantage and exploits the other’s weakness in some morally culpable manner;
• The resulting transaction is oppressive. Special disadvantage – definition:

This is an advantage which seriously affects the ability of the innocent party to make a judgment as to his own best interests, when the other party knows or ought to know of the existence of that condition or circumstance and of its effect on the innocent party (Commercial Bank of Australia Ltd v Amadio). Relevant circumstances include – (Blomley v Ryan):
• poverty of any kind
• sickness
• age
• sex
• infirmity of body or mind
• drunkenness
• illiteracy or lack of education
• lack of assistance or explanation where assistance or explanation is necessary. However, this list does not cover all of the situations in which relief will be granted for unconscionable conduct (Commercial Bank of Australia Ltd v Amadio). Emotional dependence, or being subject to emotional influence, is a relevant disadvantage that might constitute a ground to set aside a transaction as unconscionable (Louth v Diprose).

Additionally, special disadvantage might exist not only in ‘constitutional disadvantage’, such as age or infirmity, but also in ‘situational disadvantage’, such as disadvantage arising out of an intersection of the legal and commercial circumstances in which the plaintiff may find themselves (Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd). Special disadvantage – distinguished from simple disadvantage: ‘Special advantage’ must be distinguished from simple disadvantage – a person will not be in a position of special disadvantage just because of a mere inequality of bargaining power. There is a difference between unconscientiously exploiting another person’s inability or reduced ability to protect this own interests and taking advantage of a superior bargaining position. Good conscience does not demand that a party forfeit any advantage or neglect his or her own interests. (Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd).

Commercial vulnerability, no matter how extreme, on its own does not amount to a special disadvantage (Australian Competition and Consumer Commission v Samton Holdings). Where a professional adviser, such as an accountant, enjoys considerably greater financial analytical skills than the client, the client may be at a disadvantage but will not be in a position of ‘special disadvantage’. A different conclusion may follow, however, if the professional adviser were to seek to take advantage of that relative technical superiority by inducing the client into a course of action that the adviser understands to not be in the best interest of the client (Gartner v Ernst & Young (No 2)).

Actual knowledge of special disability is sufficient, but not necessary (Cf. Westwill Pty Ltd v Heath). Special disability must be ‘sufficiently evident’ to the defendant (CBA v Amadio). A defendant cannot shelter behind a ‘wilful ignorance’ as precluding knowledge of the special disability (Owen and Gutch v Homan). However, relief will be refused where the stronger party neither knows nor ought to know of the weaker party’s special disadvantage (Melverton v Commonwealth Development Bank of Australia). It is not necessary for the stronger party to have created the special disadvantage under which the weaker party is labouring (Louth v Diprose). Causal connection

It is necessary for there to be a causal connection between the stronger party’s unconscientious taking of advantage and the resultant contract (Louth v Diprose). No relief may be granted where the stronger party’s exploitative conduct was not a material cause of the contract. Note: standard-form contracts:
• Typically used by parties who are in such a strong bargaining position that they are able to prescribe the terms on which they are prepared to contract, ie. a ‘take it or leave it’ basis
• Unconscionability may be capable of relating not only to formation of contracts (‘procedural unconscionability’) but also to the substantive terms in a contract (‘substantive unconscionability’)
• If this proves to he base, a Court may deem terms of a contract so unreasonable that they represent the stronger party taking advantage of a disability on the part of the weaker party – perhaps because of a pressing need for the goods or services. ? For example, Familiar Pty Ltd v Samarkos – Held: The ‘administration fee’ of $50,000 in respect of a loan of $50,000 set aide on the grounds that the payment was unconscionable. 3. Justification Once the two elements are established by the weaker party, the onus shifts to the stronger party to justify the conduct by showing that the transaction was ‘fair, just and reasonable’ (Commercial Bank of Australia v Amadio). Proof that the weaker party had the benefit of receiving independent advice may be one way of showing that the transaction was far, just and reasonable.

However, this is not conclusive (Commercial Bank of Australia v Amadio). 4. Remedies The main remedy will be rescission of the contract, although partial rescission (rescission to the extent of the unconscionability) may be possible in some cases (Commercial Bank of Australia v Amadio). The limits on the right to rescind still operate in these circumstances (i. e. affirmation, lapse of time, impossibility of restitutio in integrum, innocent third party rights have interfered or execution of the contract). In an appropriate case, an account of profits may be an alternative remedy (McKenzie v McDonald) or perhaps equitable damages (Hill v Rose).

A remedy for unconscionable conduct may be refused on discretionary grounds, such as unclean hands or laches (unreasonable delay) (Adenan v Buise). 5. Unconscionable conduct under statute Unconscionable conduct is now also dealt with in a variety of ways under statute. There are unconscionability provisions in the Trade Practices Act (ss 51AB, 51AC, 51AA) and Fair Trading Act (s 39). The only remedy available for a breach of any of these sections is resort to s 87 of the Act which provides an order for compensation. Damages under s 82 will not be available. The position is the same under the Fair Trading Act in relation to s 39 – a remedy may be obtained under s 100 but not s 99. Expanded remedies under the Trade Practices Act 1974

Section 51AA of the TPA provides that a corporation must not, in