Amadio V Cba

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TABLE OF CONTENTS
QUESTION 1- RATIO-THREE LEVELS OF GENERALITY2
BROAD LEVEL OF GENERALITY:2
MODERATE LEVEL OF GENERALITY:2
NARROW LEVEL OF GENERALITY:2
QUESTION 2- OBITER3
OBITER 1:3
OBITER 2:4
OBITER 3:4
QUESTION 3- ADVANTAGES AND DISADVANTAGES OF JUDGES AS SOCIAL PLANNERS5 ADVANTAGES OF JUDGES AS SOCIAL PLANNERS5
Advantages in relation to Amadio6
DISADVANTAGES OF JUDGES AS SOCIAL PLANNERS7
Disadvantages in relation to Amadio8
QUESTION 4- IN HOUSE RULES8
RULE 18
RULE 28
RULE 39
STRENGTHS AND WEAKNESSES OF EACH RULE9
RULE 1:9
Strength9
Weakness9
RULE 2:9
Strength9
Weakness10
RULE 3:10
Strength10
Weakness10
BIBLIOGRAPHY11

Commercial Bank of Australia Ltd. V. Amadio [1983] HCA 14
Question 1- Ratio-Three Levels of Generality

Broad level of Generality:

Where a party enters into an agreement with another party and takes an unfair advantage of the situation by failing to disclose anything which has taken place between the parties which was not naturally to be expected, whether they realize this or were aware that the situation may exist, Then, the person has been deceptive and as such the agreement should be nullified for the other parties sake.

Moderate level of Generality:

Where an organization enters into an agreement with another party and takes an unfair advantage of the situation because of its power or the other parties weakness by failing to disclose anything which has taken place between the parties of the agreement which was not naturally to be expected whether they realized this was the situation or were aware that this situation may possibly exist in the mind of a reasonable person, Then, the organizations conduct towards the agreement was deceptive and as such the other party should be entitled to the agreement being nullified so as the organization can minimize the flow on or floodgate effects.

Narrow level of Generality:

Where a bank enters into an agreement with a surety and has taken unfair advantage of its own superior bargaining power, or of the position of disadvantage in which the other party was placed by failing to disclose to the intending surety anything which has taken place between the bank and the principle debtor which was not naturally to be expected whether they have knowledge of this position or at least aware of the possibility that the situation may exist or are aware of facts that would raise that possibility in the mind of any reasonable person, Then, the banks conduct towards the transaction has been unconscionable and as such the surety should be entitled to an order setting aside the mortgage guarantee so long as the bank can minimize the flow on or floodgate effects.

Question 2- Obiter

Obiter 1:
“While that matter was not raised in the banks notice of appeal, I was, at one stage, inclined to think that the appropriate relief in the present case would be an order setting aside the guarantee/mortgage only to the extent to which it imposed upon Mr. and Mrs. Amadio a potential liability in excess of $50,000 or that any order wholly setting aside the guarantee/mortgage should be conditional upon Mr. and Mrs Amadio paying to the bank the amount of $50,000 which represents the amount of the potential liability which they intended to undertake.”

This type of relief, that Justice Dean, J. considers may be identified under the Trade practices Act 1974 (Cth) s 87. In his judgment, Dean J. was initially inclined to set “aside the guarantee/mortgage only to the extent to which it imposed upon Mr. and Mrs. Amadio.” Then, Dean, J expresses his ultimate decision that Mr and Mrs. Amadio are entitled to have the whole guarantee and mortgage set aside unconditionally. Therefore, this relief suggested under the Act was not relevant law associated with the result, however provided context for the remaining opinions. Henceforth, meaning that this was a remark written ‘in passing’ and is not binding.

Obiter 2:...
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