Journal articles: 'Unconscionable conduct'

1

Zumbo, Frank. "Australia Prohibits Unconscionable Commercial Conduct." Business Law Review 20, Issue 3 (March 1, 1999): 66–69. http://dx.doi.org/10.54648/bula1999019.

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Chan, Sean. "Future-Proof Doctrine or Relic of an Equitable Past? Unconscionable Conduct in the Fair Trading Amendment Act 2021." Victoria University of Wellington Law Review 53, no. 2 (August 29, 2022): 185–218. http://dx.doi.org/10.26686/vuwlr.v53i2.7708.

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The Fair Trading Amendment Act 2021 introduced a New Zealand prohibition on "unconscionable conduct" in trade. Previously, the law on unconscionable conduct was found in the equitable doctrine of unconscionable bargain. This article describes how New Zealand law has moved away from equitable unconscionability with this new prohibition. This article critically analyses some of the legal, social and economic justifications for introducing the prohibition, finding that some of the Ministry of Business, Innovation and Employment's justifications are not persuasive. The s 7 prohibition is based strongly on an equivalent section in the Australian Competition and Consumer Act 2010 (Cth). It is argued that long-standing doctrinal issues with Australia's prohibition provided a strong basis for New Zealand to pursue a different standard. Finally, this article explores the "unfair commercial practices" doctrines in the United States and European Union through the lens of anti-consumer practices in digital marketplaces. The conclusion is that the unfair commercial practices doctrine captures a wider range of anti-consumer conduct than does unconscionable conduct.

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3

Milne, Patrick. "Proprietary Estoppel and the Element of Unconscionable Conduct." Cambridge Law Journal 56, no. 1 (March 1997): 34–37. http://dx.doi.org/10.1017/s0008197300017669.

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Finlay, Anne. "Unconscionable Conduct and the Business Plaintiff: Has Australia Gone Too Far?" Anglo-American Law Review 28, no. 4 (October 1999): 470–502. http://dx.doi.org/10.1177/147377959902800405.

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Muchlinski, Peter. "‘Caveat Investor’? The Relevance of the Conduct of the Investor Under the Fair and Equitable Treatment Standard." International and Comparative Law Quarterly 55, no. 3 (July 2006): 527–58. http://dx.doi.org/10.1093/iclq/lei104.

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AbstractThe role that investor conduct plays in applying the fair and equitable treatment standard is relatively unexplored. On the basis of conceptual analysis, and emerging international judicial and arbitral case law, this article suggests that investor conduct is an important consideration. Investor duties are being accepted in relation to the avoidance of unconscionable conduct, the reasonable assessment of investment risk in the host country, and a duty to operate an investment reasonably. These requirements may be said to lead to a new limit upon the fair and equitable treatment standard encapsulated in the phrase ‘Caveat Investor’.

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Spears, Charlotte. "Consumer Protection: Online Sale of Prescription Drugs to Minors Not Unconscionable." Journal of Law, Medicine & Ethics 30, no. 2 (2002): 315–17. http://dx.doi.org/10.1017/s1073110500008561.

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In Stovall v. Confimed.com, the Kansas Supreme Court held that an out-of-state medical doctor who sold a prescription drug to a Kansas minor over the Internet did not commit an unconscionable act under the Kansas Consumer Protection Act (KCPA). The Shawnee Country District Court had enjoined the doctor from prescribing or dispensing prescription medicine within the state of Kansas, and the doctor appealed the injunction to the Kansas Supreme Court. The Supreme Court affirmed the district court's decision to grant injunctive relief, but found no unconscionable conduct under the KCPA.The appellee, Washington physician Dr. Howard J. Levine, sold the sexual enhancement drug Viagra over the Internet through his online pharmacy. Neither the physician nor the online pharmacy was licensed to practice in Kansas. The purchasers were two Kansas residents, one of whom was a minor. Both purchased the drugs in a sting operation conducted by the Kansas Attorney General and received the drugs after completing an online application.

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Eldridge, John. "LAWFUL-ACT DURESS AND MARITAL AGREEMENTS." Cambridge Law Journal 77, no. 1 (March 2018): 32–35. http://dx.doi.org/10.1017/s0008197318000211.

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IN Thorne v Kennedy [2017] HCA 49, the High Court of Australia was presented with an opportunity to consider the operation and intersection of undue influence, unconscionable conduct and duress in the context of marital agreements. Despite hopes that the Court would seize the chance to resolve an important open question in respect of duress, the decision was instead marked by an unhelpful caution, offering little guidance on the law's future development.

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Paterson, Jeannie Marie, and Gerard Brody. "“Safety Net” Consumer Protection: Using Prohibitions on Unfair and Unconscionable Conduct to Respond to Predatory Business Models." Journal of Consumer Policy 38, no. 3 (November 9, 2014): 331–55. http://dx.doi.org/10.1007/s10603-014-9276-y.

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9

Halliwell, Margaret. "Estoppel: unconscionability as a cause of action." Legal Studies 14, no. 1 (March 1994): 15–34. http://dx.doi.org/10.1111/j.1748-121x.1994.tb00563.x.

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The current distinctions between different forms of estoppel are inappropriate and traditional orthodoxy is being challenged by judges and by academics. It is now necessary to recognise that the organising concept for the doctrine of estoppel is unconscionability because the function of estoppel is to restrain injustice arising from unconscionable conduct. The form ofestoppel, known as promissory estoppel, and stemming from the decision in Central London Property Ltd u High Trees House Ltd, is not triggered by the organising concept of unconscionability. It should be regarded, therefore, as an exceptional contractual response, in various situations, to the requirement of consideration. It follows that, in principle, estoppel based upon the concept of unconscionability, may be employed as an independent cause of action. There is ample evidence that this already happens in the context of claims concerning land. This article seeks to demonstrate that estoppel can and should be treated as an independent cause of action in a more general context.

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10

Latimer, Paul. "It's Time for Federal Regulation of Retirement Villages." Federal Law Review 45, no. 3 (September 2017): 469–93. http://dx.doi.org/10.22145/flr.45.3.5.

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As Australia's population ages, increasing numbers of seniors move to a growing number of retirement villages. Unlike time shares, which are ‘managed investment schemes’ and therefore regulated as ‘financial products’ under corporate law administered nationally by the Australian Securities and Investments Commission (ASIC), the Commonwealth withdrew from the regulation of retirement villages in the 1980s on the basis that at that time they were local, usually run by religious bodies and charities and were not of national concern. The regulation of retirement villages was taken over by the states and territories under their non-uniform Retirement Villages Acts and the common law. Until then retirement villages, often indistinguishable from Commonwealth regulated timeshares, were regulated in the original State and Territory Uniform Companies Acts in 1961 as ‘interests’, and then in later Commonwealth legislation as ‘prescribed interests’ by the forebear of ASIC, the then National Companies and Securities Commission (NCSC) with the State and Territory Corporate Affairs Commissions as its ‘delegates’. Today retirement villages, which are largely owned and managed by the corporate sector, raise many issues of national concern such as accountability, fees and the rights of residents. Some aspects of retirement villages such as directors’ duties, fundraising, prospectuses and unregistered schemes are regulated as corporations by ASIC under the Corporations Act 2001 (Cth), but retirement villages are not regulated as ‘financial products’ under corporate law. This article challenges the effectiveness of state and territory regulation of retirement villages and calls for federal regulation of retirement villages by bringing retirement villages into the definition of ‘financial product’ in the Corporations Act 2001 (Cth) and in the Australian Securities and Investments Commission Act 2001 (Cth). As financial products, retirement villages would then be regulated by Commonwealth legislation which deals with financial services and financial markets, as regulated by ASIC. These laws include consumer protection provisions such as the prohibition of misleading or deceptive conduct, unfair contract terms, unconscionable conduct, licensing and high standards for those in the retirement village industry. This would result in a return to Commonwealth leadership of the regulation of retirement villages to harmonise and to consolidate the current mix of state and territory regulation with federal legislation including an enforceable Retirement Villages Code of Conduct.

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11

Hopkins, Nicholas. "Conscience, discretion and the creation of property rights." Legal Studies 26, no. 4 (December 2006): 475–99. http://dx.doi.org/10.1111/j.1748-121x.2006.00033.x.

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This paper considers the utility of the concept of conscience or unconscionable conduct as a contemporary rationale for intervention in two principles applied where a person seeks to renege on an informal agreement relating to land: the principle in Rochefoucauld v Boustead; and transfers ‘subject to’ rights in favour of a claimant. By analysing the concept in light of our current understanding of the nature of judicial discretion and the use of general principles, it responds to arguments that unconscionability is too general a concept on which to base intervention. In doing so, it considers the nature of the discretion that is actually in issue when the court intervenes through conscience in these principles. However, the paper questions the use of constructive trusts as a response to unconscionability. It argues that there is a need, in limited circumstances, to separate the finding of unconscionability from the imposition of a constructive trust. In these limited circumstances, once unconscionability is found, the courts should have a discretion as to the remedy, modelled on that developed in the context of proprietary estoppel. The message underlying this paper is that many of the concerns expressed about unconscionability that have led to suggestions of alternative rationales for intervention can in fact be addressed whilst retaining an unconscionability analysis. Unconscionability remains a preferable rationale for intervention as it provides a common thread that links apparently separate principles and can assist our understanding of their scope.

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12

Thampapillai, Dilan. "What Becomes of the Broken-Hearted? Unconscionable Conduct, Emotional Dependence, and the ‘Clouded Judgment’ Cases." Law in Context. A Socio-legal Journal 34, no. 1 (December 21, 2018). http://dx.doi.org/10.26826/law-in-context.v34i1.49.

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The High Court’s decision in Louth v Diprose that emotional dependence significantly contributed to special disadvantage was a significant development within the doctrine of unconscionable conduct. The decision in Louth established a template of sorts that found useful application in the later cases of Williams v Maalouf, Xu v Lin and Mackintosh v Johnson. Though they are few, these cases form definable subset within the broader doctrine of unconscionable conduct that might broadly be termed ‘clouded judgment’ cases. These cases quite arguably blur the lines between the doctrines of unconscionable conduct and undue influence. There is a discernible pattern to these matters. In these cases, the donor has formed an attachment to the object of his or her affection. To put matters gently, the affection is misplaced. Nonetheless, the donor makes a gift to the object of his or her affection. Subsequent developments lead the donor to realise that the gift was both improvident and bestowed upon an undeserving party. This article argues that Louth v Diprose is a troublesome precedent. First, the primacy of deception, which was a key issue in Louth, is unduly reductive. It obscures the overall context of the defendant’s conduct. Secondly, the High Court in Louth overlooked facts that might have undermined the finding that the plaintiff was at a special disadvantage. Thirdly, the case reflects a concept, known as the ‘presumption of competency’ that unhelpfully tilted the balance in favour of the plaintiff. This presumption appears to have been somewhat reversed in Mackintosh.

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13

Felstead, Nicholas. "Beyond Unconscionability Exploring the Case for a New Prohibition on Unfair Conduct." University of New South Wales Law Journal 45, no. 1 (April 21, 2022). http://dx.doi.org/10.53637/ibyx4580.

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Consumer Affairs Australia and New Zealand conducted a wholesale review of the Australian Consumer Law in 2017. Despite calls for the introduction of an ‘unfair conduct’ prohibition, the review found that a change to the current prohibition on ‘unconscionable conduct’ was unnecessary in light of the statutory prohibition evolving from its equitable origins. The recent High Court decision in Australian Securities and Investments Commission v Kobelt (2019) 267 CLR 1 has stifled this development and realigned statutory unconscionability with the restrictive equitable doctrine. In light of curial and extra- curial comments from senior members of the judiciary, regulators and commentators, it is appropriate to reconsider the merits of a prohibition on unfair conduct. This article argues that this reform will better promote community understanding, lead to greater certainty in commerce and fulfil the role of a ‘safety net’ provision in the Australian Consumer Law.

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14

Marshall, Brenda. "Liability for Unconscionable and Misleading Conduct in Commercial Dealings: Balancing Commercial Morality and Individual Responsibility." Bond Law Review, January 1, 1995. http://dx.doi.org/10.53300/001c.5273.

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15

Pengilley, Warren. "Unconscionable And Misleading Conduct: How The Trade Practices Act Is Used And The Duty To Advise." QUT Law Review 8 (December 1, 1992). http://dx.doi.org/10.5204/qutlr.v8i0.358.

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16

Sharpe, Michelle, and Christine Parker. "The ACCC Compliance and Enforcement Project: Assessment of the Impact of ACCC Regulatory Enforcement Action in Unconscionable Conduct Cases." SSRN Electronic Journal, 2006. http://dx.doi.org/10.2139/ssrn.945276.

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17

Maher, Felicity, and Stephen Puttick. "Reconsidering Independent Advice: A Framework for Analysing Two-Party and Three-Party Cases." University of New South Wales Law Journal 43, no. 1 (March 2020). http://dx.doi.org/10.53637/vuxv5870.

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What is the significance of the receipt of independent advice by the plaintiff in a claim to set aside a transaction on the basis of a vitiating factor – such as duress, undue influence or unconscionable conduct? The generally held view has been that it is highly significant. Indeed, the receipt of advice has been understood as an answer to many such claims. The High Court of Australia’s decision in Thorne v Kennedy apparently changes this. Although that case concerned advice in relation to binding financial agreements under the Family Law Act 1975 (Cth), the decision has important implications across banking, commercial and other areas of practice. This article, then, offers a reanalysis of this question in light of this decision and other developments. The authors propose a new framework – based around two key questions – for conceptualising the function and significance of independent advice in a particular case. The article considers and develops this framework with regard to the main general law vitiating factors in both two-party and three-party cases.

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18

West, Tracey, and Nicholas Drew. "Abuse of enduring power of attorneys and real estate transactions in Australian courts." Journal of Financial Crime, September 22, 2022. http://dx.doi.org/10.1108/jfc-08-2022-0175.

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Purpose The purpose of this study is to highlight how people acting as Enduring Power of Attorney (EPoA) abuse their privilege in relation to real estate transactions through analysis of five court cases. This study thereby provides insight into how and why adult children cross the line into the realm of misconduct. Design/methodology/approach The approach involved a review of various court proceedings relating to elder financial abuse, and the synthesis of the important facts and judgements made that constitute unconscionable conduct, undue influence and passive acceptance of benefit. The cases selected focus on real estate transactions. Findings The research revealed some key commonalities and that property and living arrangements are the issues highly contested in courts for small estates. Practical implications The case review provides some critical findings that are valuable for wealth management professionals or managing an ageing person’s care and living arrangements. It provides practical insights for the importance of independent legal and financial advice when entering real estate transactions. The findings also inform real estate agent practice in helping to reduce elder financial abuse through robust checks if an Attorney is acting on behalf of a Principal. The authors also support improving EPoA guidance and professionalization to assist Attorney’s to carry out their duties with appropriate care. Originality/value A review of cases relating to EPoA in relation to real estate is novel and makes an important contribution to developing resources to educate Attorney’s and financial service professionals, including real estate agents.

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19

Reza, Ninia, and Jean Jacques Du Plessis. "The Garment Industry in Bangladesh, Corporate Social Responsibility of Multinational Corporations, and The Impact of COVID-19." Asian Journal of Law and Society, March 30, 2022, 1–31. http://dx.doi.org/10.1017/als.2022.9.

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Abstract This article investigates the Bangladeshi garment industry that supplies ready-made garments for global brands and the corporate social responsibilities (CSRs) of the brands/multinational corporations (MNCs) towards their supply chains. Although outsourcing and global trade have boosted the living standards of many people in the Bangladeshi garment industry, there are some significant concerns regarding the working conditions and treatment of workers in these supply chains. This, in turn, cannot, and should not, be detached from the legal relationship between the Bangladeshi supply chains and the MNCs contracting with them. This article examines the impact of COVID-19, which has exposed the fragility and the pre-existing flaws in the relationship between the MNCs and their suppliers more clearly than at any other time in history. There is a huge governance gap between MNCs and supply chains that needs to be addressed urgently. This article assesses the legality of the cancellation of orders by the brands that invoked the force majeure clause. In doing so, this paper briefly deals with the responses of three American retail companies, namely Sears, Kohl’s, and the Arcadia Group, in the wake of the COVID-19 pandemic. It illustrates that the power asymmetry between the MNCs and their suppliers has put the supply chains in an unreasonably disadvantageous position, creating unfair and even unconscionable conduct by several MNCs. This article also looks at solutions for the existing problems, focusing, inter alia, on non-financial reporting requirements in the US and the EU to implement CSR in supply chains. However, disappointingly, the authors had to conclude that MNCs typically have the propensity to disregard CSR, whenever it is convenient for them and use CSR for mere “greenwashing” purposes for their strategic benefit only. It is a problem that requires constant attention and continuing research to find long-term solutions. The article employs doctrinal methodology and, by conducting a meta-analysis of literature and case-studies, it provides a comprehensive understanding of how the industry works.

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Journal articles on the topic 'Unconscionable conduct'

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