Equity - Fiduciary Duties Essay

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SUBJECT CODE
ASSIGNMENT NUMBER
SUBJECT NAME
08
8.1
Commercial Transactions
NAME & ADDRESS FOR RETURN OF ASSIGNMENT
Full Name: Gregory Ward
Address 1: PO Box 460
Address 2:
Suburb State Postcode: Richmond, VIC, 3121

* PLEASE DO NOT USE YOUR STUDENT NUMBER TO IDENTIFY YOURSELF WHEN SUBMITTING YOUR ASSIGNMENT. YOUR NUMBER SHOULD NOT BE INCLUDED ON THE COVERSHEET, IN A HEADER OR FOOTER, OR IN THE BODY OF THE ASSIGNMENT.
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1. Unless otherwise indicated by way of footnote or reference, this assignment is entirely my own work.
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Signed:
Gregory Ward
Date:
09/01/2015

MARKERS USE ONLY
MARK
/
MARKERS COMMENTS

1. Trace the evolution of the unconscionable provisions in the Australian Consumer Law. See Part 2-2 of ACL and relevant cases. (5 marks)

Date
Event
Comment / key principles
1956
Blomley v Ryan (1956) 99 CLR 362

Knowledge of the other party required.
Must establish a “real unfairness in taking advantage of his condition”. personal circumstances of the particular victim is a key factor.
1974
Trade Practices Act 1974 (Cth) (TPA)
No statutory prohibition on unconscionable conduct included.
1983
Commercial Bank of Australia v Amadio (1983) 151 CLR 447
Amadio Test
“special disadvantage” identified as an element of UC.
1986
Trade Practices Revision Act 1986 (Cth)
Introduction of s52A into TPA

Protection of individuals from corporations.
1992
s51AA included in TPA
Applies only to consumer contracts, and based on common law. (Blomey / Amadio)

s51AB derived from the old s52A TPA

Applies only to consumer contracts.
Expands scope of conduct beyond Amadio.
Provides a non-exhaustive list of matters a court can have regard to in determining if unconscionable conduct has occurred.
1998
s51AC

Protection for Small Business Introduced
March 2002
Removal of ‘financial services’ from TPA
Transferred to Australian Securities and Investments Commission Act 2001 (Cth) as ss 12CA, 12 CB and 12CC.
2010
TPA renamed Competition and Consumer Act 2010 (Cth) (CCA)
Introduction of the Australian Consumer Law (ACL).

The ACL is contained in Schedule 2 of the CCA.
2011
Competition and Consumer Legislation Amendment Bill 2011 (Cth)
Unification of sections 21 and 22 of the ACL to cover both personal and business consumers into a new s21 ACL and the inclusion of the interpretive provisions into s22 ACL.

Key changes as a result of the creation of the Competition and Consumer Act 2010 (Cth)
Trade Practices Act 1974 (Cth).

(Old provision.)
Competition and Consumer Act 2010 (Cth)
Sch 2.2 ACL

Equivalent provision in original Australian Consumer Law
Amendments via Competition and Consumer Legislation Amendment Bill 2011 (Cth) s51AA Unconscionable conduct within the unwritten law. s20 maintains common law provisions for unconscionable conduct. s20 maintains common law provisions for unconscionable conduct. s51AB Unconscionable conduct in connection with the supply of goods or services to a person. s21 Unconscionable conduct in connection with the supply of goods or services to a person. s21 personal and business transactions merged into one section. s51AC Unconscionable conduct in connection with the supply of goods or services to a business. s22 Unconscionable conduct in connection with the supply of goods or services to a business. s22 non-exhaustive list of interpretive provisions included to assist in determining breach of s21.
The 2011 amendments insert interpretative principles into the unconscionable conduct provisions of the ACL, specifically to: allow the courts to examine both the terms of a contract and behaviour during the life of a contract; allow the courts to look at systematic conduct or patterns of behaviour in order to
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