Podcast
Questions and Answers
What was the conclusion regarding the conduct in ACCC v CG Berbatis Holdings?
What was the conclusion regarding the conduct in ACCC v CG Berbatis Holdings?
Which key factor was determined to not apply to Mr. and Mrs. Roberts in the context of unconscionable conduct?
Which key factor was determined to not apply to Mr. and Mrs. Roberts in the context of unconscionable conduct?
Under Section 21, what is primarily prohibited in trade or commerce?
Under Section 21, what is primarily prohibited in trade or commerce?
What relationship must exist for Section 21’s unconscionable conduct clause to apply?
What relationship must exist for Section 21’s unconscionable conduct clause to apply?
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What do Section 22 factors help determine in legal contexts regarding unconscionable conduct?
What do Section 22 factors help determine in legal contexts regarding unconscionable conduct?
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Which factor is NOT considered when determining unconscionable conduct under Section 22?
Which factor is NOT considered when determining unconscionable conduct under Section 22?
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In the case of Garry Rogers Motors v Subaru, what was the primary reason for Subaru's decision not to reinstate the dealership agreement?
In the case of Garry Rogers Motors v Subaru, what was the primary reason for Subaru's decision not to reinstate the dealership agreement?
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Which of the following is a factor that can indicate unconscionable conduct?
Which of the following is a factor that can indicate unconscionable conduct?
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What should be assessed to understand whether undue influence was present in a transaction?
What should be assessed to understand whether undue influence was present in a transaction?
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Which of the following best describes a factor that demonstrates whether a party acted in good faith?
Which of the following best describes a factor that demonstrates whether a party acted in good faith?
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What type of conduct is assessed when determining if a party acted unconscionably?
What type of conduct is assessed when determining if a party acted unconscionably?
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Which element indicates that a party may have engaged in unfair tactics?
Which element indicates that a party may have engaged in unfair tactics?
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In relation to Section 21 applications, which behavior is generalized as permissible?
In relation to Section 21 applications, which behavior is generalized as permissible?
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What does Section 20 specifically prohibit?
What does Section 20 specifically prohibit?
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Which equitable doctrine may be relevant in the context of unconscionable conduct under Section 20?
Which equitable doctrine may be relevant in the context of unconscionable conduct under Section 20?
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Which of the following remedies is NOT available under Section 20?
Which of the following remedies is NOT available under Section 20?
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Which of the following best describes 'unconscionable dealing'?
Which of the following best describes 'unconscionable dealing'?
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In the context of Section 21, what conduct is considered unconscionable?
In the context of Section 21, what conduct is considered unconscionable?
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Who can initiate an action under Section 20?
Who can initiate an action under Section 20?
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In the case of ACCC v CG Berbatis Holdings, what was the primary issue faced by Mr. and Mrs. Roberts?
In the case of ACCC v CG Berbatis Holdings, what was the primary issue faced by Mr. and Mrs. Roberts?
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What type of order might be issued under Section 20 that involves altering contract terms?
What type of order might be issued under Section 20 that involves altering contract terms?
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Study Notes
Unconscionable Conduct
- Section 20: prohibits unconscionable conduct as recognized by common law.
- Section 21: prohibits unconscionable conduct in relation to the supply or acquisition of goods or services.
- It includes a range of conduct, such as:
- Undue influence
- Unfair tactics
- Undue pressure
- Unreasonable conditions
- Unequal bargaining power
ACСС v CG Berbatis Holdings
- This case focused on unconscionable conduct within the meaning of common law.
- The Roberts leased a shop from Berbatis Holdings.
- Roberts were keen to sell their business but needed a lease extension.
- Berbatis offered the extension only if Roberts waived their rights against Berbatis for overcharging.
- Roberts agreed as they had no other options.
- Court ruled that the conduct was not unconscionable because the Roberts were in a position to make an informed decision.
- They knew they were being asked to waive their rights against Berbatis to secure the lease.
Section 21 Factors
- Section 22 lists factors relevant to determining unconscionable conduct under section 21, which includes:
- The parties' relative bargaining positions
- Whether conditions were imposed that were not reasonably necessary
- If a party was able to understand the transaction's documents
- If undue influence or pressure or any unfair tactics were used
- The circumstances and the amount for which a party could have acquired identical or equivalent goods or services from another person
- The extent to which a party's conduct was consistent with their conduct in similar transactions
- Whether a party was willing to negotiate the contract terms
- The contract terms and parties' conduct in complying with them
- Whether a party has a contractual right to unilaterally vary a term
- The extent to which parties acted in good faith
Garry Rogers Motors v Subaru
- Garry Rogers Motors (GRM) was an authorized Subaru dealer.
- Subaru terminated the dealership agreement when GRM resisted new marketing requirements.
- GRM then indicated compliance with the new requirements, but Subaru refused to reinstate the dealership agreement.
- The court found that Subaru's conduct was not unconscionable, even though Subaru failed to comply with the industry code by not providing written reasons for the termination.
- Subaru acted to protect its legitimate commercial interests.
Section 20 (1)
- Only applies to conduct regulated by common law.
- Offers several remedies including:
- Pecuniary penalties
- Injunctions
- Damages
- Other orders, such as rescission, partial rescission, non-enforcement of selected terms, or rewriting the contract
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Description
This quiz explores the principles of unconscionable conduct as established in common law, including Sections 20 and 21. It also examines the case ACСС v CG Berbatis Holdings, which illustrates how courts interpret these principles in real-world scenarios. Test your knowledge on the elements that constitute unconscionable conduct and relevant legal precedents.
