Unconscionable Conduct in Common Law
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Unconscionable Conduct in Common Law

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What was the conclusion regarding the conduct in ACCC v CG Berbatis Holdings?

  • It involved unconscionable conduct.
  • It was found to be unconscionable under common law.
  • It was deemed legally unconscionable under the unwritten law.
  • It did not involve unconscionable dealing. (correct)

    • Which key factor was determined to not apply to Mr. and Mrs. Roberts in the context of unconscionable conduct?

  • They faced a special disadvantage in negotiation. (correct)
  • They had inadequate legal representation.
  • They were under duress during the agreement.
  • They were aware of their legal rights.

    • Under Section 21, what is primarily prohibited in trade or commerce?

  • Selling goods below market value.
  • Engaging in conduct that is unconscionable. (correct)
  • Advertising services misleadingly.
  • Acquiring services without a contract.

    • What relationship must exist for Section 21’s unconscionable conduct clause to apply?

    <p>A connection between the conduct and the supply or acquisition of goods or services.</p> Signup and view all the answers

    What do Section 22 factors help determine in legal contexts regarding unconscionable conduct?

    <p>Whether a supplier or acquirer has engaged in unconscionable conduct.</p> Signup and view all the answers

    Which factor is NOT considered when determining unconscionable conduct under Section 22?

    <p>The number of years the parties have been in business</p> Signup and view all the answers

    In the case of Garry Rogers Motors v Subaru, what was the primary reason for Subaru's decision not to reinstate the dealership agreement?

    <p>Subaru acted to protect its legitimate commercial interests</p> Signup and view all the answers

    Which of the following is a factor that can indicate unconscionable conduct?

    <p>A party's history in similar transactions</p> Signup and view all the answers

    What should be assessed to understand whether undue influence was present in a transaction?

    <p>The negotiation tactics of the parties involved</p> Signup and view all the answers

    Which of the following best describes a factor that demonstrates whether a party acted in good faith?

    <p>Consistency with industry codes and contractual compliance</p> Signup and view all the answers

    What type of conduct is assessed when determining if a party acted unconscionably?

    <p>The implementation of unjust terms in a contract</p> Signup and view all the answers

    Which element indicates that a party may have engaged in unfair tactics?

    <p>Restricting opportunities for negotiation</p> Signup and view all the answers

    In relation to Section 21 applications, which behavior is generalized as permissible?

    <p>Strict adherence to industry codes</p> Signup and view all the answers

    What does Section 20 specifically prohibit?

    <p>Unconscionable conduct within the meaning of the unwritten law</p> Signup and view all the answers

    Which equitable doctrine may be relevant in the context of unconscionable conduct under Section 20?

    <p>Undue influence</p> Signup and view all the answers

    Which of the following remedies is NOT available under Section 20?

    <p>Specific performance</p> Signup and view all the answers

    Which of the following best describes 'unconscionable dealing'?

    <p>A situation where one party takes advantage of another's vulnerability</p> Signup and view all the answers

    In the context of Section 21, what conduct is considered unconscionable?

    <p>Conduct in connection with the supply or acquisition of goods or services</p> Signup and view all the answers

    Who can initiate an action under Section 20?

    <p>The Australian Competition and Consumer Commission and individuals</p> Signup and view all the answers

    In the case of ACCC v CG Berbatis Holdings, what was the primary issue faced by Mr. and Mrs. Roberts?

    <p>They needed to sell their business and negotiate a lease assignment</p> Signup and view all the answers

    What type of order might be issued under Section 20 that involves altering contract terms?

    <p>Rescission</p> Signup and view all the answers

    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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    Principles of Business Law, Semester 2 2024 PDF

    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.

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