Common Law - Lecture notes 1 PDF

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Common Law. Under ACL, s20 and s21 At Common Law. This is an equity based legal claim that required the P to prove 3 steps: 1. Special Disability – serious weakness that reduces the ability of the P to judge their interests: infatuation (love); bank guarantee Apply relevant facts to law:  

P argues combination of: bad hearing, limited English, old age, confused by fast speaking and technical language. D argue she can still speak, she is not too old, disability not significant enough.

2. The D knows of the disability (knowledge can be actual or constructive)  Her age is known, accent, they would know her weakness. 3. The D takes of advantage (exploitation 利用)  Rebuttable presumption- if you can show step 2, law assumes step 3 is proven, unless D shows it’s not true. The purpose: allow a weaker person to cancel unfair contracts (rescission). Prevents exploitation 利用. At common law At common law, Margeret’s chances of success for rescinding the contract using unconscionable conduct are uncertain. CBA v Amadio establishes the steps for unconscionable conduct. First, the P must show ‘special disability’. Which is a serious disadvantage undermining the P’s ability to judge their interests. The P argues the disability is 2nd language English, poor hearing, old age, which lowered her ability to handle their aggressive selling, and use of confusing terms. The D would counter argue this disability is not ‘special’- she can still communicate, no signs of dementia 痴呆, this is not a very complicated contract. The answer to this point is uncertain. If disability is shown, the P must prove knowledge- actual of constructive. Constructive is show because her accent/age/hearing would be obvious. Finally, if steps 1 and 2 are show, step 3 taking advantage- is presumed, and clearly the D took advantage therefore. If unconscionable conduct is shown, only remedy is rescission (cancel the contract from beginning).

Section 21- big differences:

  

ACL Conduct must be (1) in trade or commerce (2) relates to Goods and service (3) P cannot be a publicly listed company, eg Coles. Uses normal English definition of unconscionable conduct, not Common Law.

Applying the checklist in s22, the following factors suggest the D is unconscionable (or not unconscionable). First, under s22(a) there is ‘unequal bargaining power’, because the salespeople are stronger in discussion that elderly person in her 2nd language. Secondly, there are harsh conditions (s22(b)), such as the monthly fee and high price. Thirdly, there are ‘unfair tactics’ s22(d), such as fast speaking, sliding rulers, complicated terminology, failure to explain the monthly fee…. D’s arguments: ACCC v Lux ruse/plan/trick. D argues the conduct, whilst not ‘best practices’, is not reprehensible like in ACCC v Lux as there is no deliberate plan to exploit older customers On balance, applying the checklist, the D’s conduct is unconscionable because they take advantages of an old woman for profit, and sold as exorbitant (过高) prices.

UNFAIR TERMS SHORT NOTES: Suppose the uni contracts says ‘the uni can cancel your enrolment for any reason’ Normally, the remedy is just 1 term is ‘deleted’ Stadium contract said ‘we can take ‘confiscate’ any photographic equipment being used and not return it’ Was this term unfair?...