Inequality of bargaining power

Question 1

Smelter Corp

Answer 1

Duress includes threats to damage, fire, or take property

Question 2

Williams v Bayley

Answer 2

Duress includes threats to sue or prosecute
(McConville v ESB) Unless not sufficiently serious or if the threatened party has time or good legal advice

Question 3

Hearn v Collins High Court

Answer 3

Duress includes threat of economic harm by refusing to carry out a commercial contract. The threat must be catastrophic.

Question 4

CTN v Gallagher

Answer 4

Pressure can be allowed if completely lawful

Question 5

Pakistan International Airline v Tire Travel

Answer 5

Duress is unlawful

Question 6

Barton v Armstrong

Answer 6

Duress needs causation to be established as effective

Question 7

What is the remedy to duress?

Answer 7

Contract is set aside

Question 8

Mogles v Mahon

Answer 8

An independent decision disproves undue influence

Question 9

Caroll v Caroll

Answer 9

Unfairness in an indicator of undue influence

Question 10

Core question of undue influence

Answer 10

Can the weaker party exercise their own judgment?
Invalidity is presumed until proven otherwise

Question 11

MC v FC

Answer 11

Undue influence from family influence and dementia

Question 12

Allcard v Skiner

Answer 12

Undue influence from holy sisterhood - no need to prove misbehaviour by the stronger party

Question 13

Tallnurst v Smith

Answer 13

Professional relationship can circumstantially constitute undue influence

Question 14

McGongle v black High Court

Answer 14

Neighbours as undue influence

Question 15

Gregg v Kidd

Answer 15

Siblings as undue influence

Question 16

Bank of Nova Scotia

Answer 16

Undue influence can not be presumed in marriages, it needs to be proven

Question 17

F v F

Answer 17

Impartial advice on the transaction can disprove the presumption of undue influence

Question 18

Achill House of Prayer

Answer 18

Remedy of undue influence is to set the contract aside, each side restores what they received under contract
Refusal if delayed - Mahoney v Purnel
Third party can only escape if they had no actual knowledge or reasonably constructive knowledge

Question 19

What is unconscionability?

Answer 19

sharply dealing against a “special disadvantage”

Question 20

Lyndon v Coyne

Answer 20

Unconscionable - poor health

Question 21

Rae v Joyce

Answer 21

Unconscionable - pregnancy and poverty

Question 22

Crewell v Potter

Answer 22

Unconscionable - law education is relevant to transaction

Question 23

Credit Lyonnais Burch

Answer 23

Unconscionable - lack of relevant business experience

Question 24

Hart v O’Connor

Answer 24

The other party must know of the disadvantage for unconscionability to be found

Question 25

JH v WJH

Answer 25

Remedy of unconscionability is to set the contract aside, unless delay from P A credit agreement can be set aside if costs are excessive based on interest rates, degree of risk for creditor, competition for this set of credit (Consumer Credit Act 1995 s.47)