The children's core claim is the various securities provided by them are invalid on grounds includng undue influence, "unconscionable bargain
", negligence and breach of duty by the bank, especially to advise them.
I think fundamentally it is a case where a serious injustice was done to the defendants, and where the law of unconscionable bargain was stretched almost to breaking point.
In Part IV I shall comment on what the High Court's decision does to the law of unconscionable bargain. Almost seventeen years ago, in Attorney-General v Equiticorp Industries Group Ltd (In Statutory Management) (3) McKay J, speaking for himself and the other members of the New Zealand Court of Appeal, Richardson and Henry JJ, memorably stated: (4)
on the basis that it was an unconscionable bargain
(100) Nevertheless, relief on the ground of unconscionability can be claimant-sided relief, and this can be demonstrated by reference to the unconscionable bargain
doctrine, a doctrine which has both contextual and historical links with the doctrine of undue influence.
Mr Parry said the pounds 50,000 plus the portfolio were handed over but the monthly payments never were, and that agreement should also be declared void as it was an 'unconscionable bargain
(69) See David Capper, 'The Unconscionable Bargain
in the Common Law World' (2010) 126 Law Quarterly Review 403.
The hospital claims Mrs Morris signed over her house while of unsound mind and under the "undue influence" of Mrs Rushin, or entered into an "unconscionable bargain
" which was not legally binding.
It was further alleged, he said, that the contract at the centre of the case represented an "unconscionable bargain
" and was the result of "economic duress."
Equity's unconscionable dealing doctrine is, of course, another: see Malcolm Cope, "The Review of Unconscionable Bargains
in Equity' (1983) 57 Australian Law Journal 279.
However, Editora Musical de Cuba, which turned rights to the 14 songs over to Termidor, argues that its original contracts with Peer are null and void because they were "unconscionable bargains
" not recognized by law.
Prohibitions on the enforcement of contracts with minors, and the concepts of undue influence and unconscionable bargains
, exemplify the preparedness of the law to interfere with contracts in the pursuit of fairness.