Commercial Bank Of Australia V Amadio In Lloyds Bank Ltd V. Bundy

Unconscionable contract refers to an agreement entered into against the dictates of good conscience. Such contracts are prohibited in Australia. Under the new Australian Consumer Law (ACL), businesses are prohibited from engaging in unconscionable conduct against other businesses or their customers. Section 21 of the ACL deals with unconscionable conduct pertaining to the acquisition or supply of goods or services. Section 21(2) lists the factors, but non-exhaustive, relevant in determining whether the contract is unconscionable, which includes the following: bargaining power of both parties, whether the consumer understood the terms in the contract, and whether undue influence or pressure was applied.
In Commercial Bank of Australia v Amadio
In the past, both the father and son had many transactions with the bank and relied on the advice given by the bank. The son’s company also banked at the same branch and the bank knew its financial status. Subsequently, the son’s company required more collateral, and the only solution was by using Bundy’s house as collateral. Bundy was told to sign the document of guarantee and mortgage and he was not given the opportunity to consider or to seek legal help. Five months later the bank foreclosed on the house when the money was not repaid. The court found that there was a relationship of trust and confidence between Bundy and the bank manager giving rise to a presumption of undue influence. As a result, the mortgage and guarantee were therefore set aside. Similarly, the relationship between the Bruno and his clients (Alan and Bridget) was more than an ordinary business relationship; the couples have known Bruno since when he was a child. The relationship of trust and confidence between Alan and Bridget and Bruno has affected their judgement vis-à-vis signing the
Consumer, business entity or any organisation or person affected by the misleading or deceptive conduct can bring a case for breach of s.18.
In Weitmann v Katies Ltd 5 the term “mislead” was held to mean to “lead astray in action or conduct; to lead into error, to cause to error” and “deceive” was held to mean to “cause to believe what is false”. Thus, conduct will only be misleading or deceptive if it induces, or is capable of inducing error. It has been held that the word “deceptive” requires the person making the statement to have an intention to deceive, in other words it has an element of fraud. (Brewster & Robinson, 2005) In this case, Bruno’s silence may account to ‘engage in conduct’ which could be misleading that leads to ‘error’, and Bruno is mostly quiet during dinner rather than explaining contract terms to Alan and Bridget. In addition, Bruno, the maker of the statement, knows that the statement is untrue, and the statement he made with the intention of deceiving the consumers, Alan and Bridget, to believe the statement is true, which apply to fraudulent