Commercial Bank : Dissenting Judgement Assessment Answer

5: The basis of the judgment delivered by Gibbs J. was that there was failure on part of the bank to reveal the significant facts to Mr. and Mrs. Amadio. Therefore, that the circumstances, Gibbs J. was of the view that it was the obligation of the bank that the relevant facts should have been clearly told to Mr. and Mrs. Amadio.

6: The legal ratio behind the judgment delivered by Mason J. deals with unconscionable conduct on part of the bank. The result was that even if Mason J. approved the statement of facts as well as the conclusions made by Deane J, but the legal ratio adopted by Mason J. was different. Therefore, Mason J. had used the notion of unconscionable conduct to decide this case and concluded that the conduct of the bank can be termed as unconscionable while it procured the mortgage contract from the appellants.

7: A difference was present among the ratios adopted by Mason J. from the legal ratio of Gibbs J. The variance was because of the cause that Mason J. relied on the fact that even if a connection is present between the notion of unconscionable conduct and the doctrine of undue influence but still it cannot be said that these two doctrines have the same effect. Consequently, as a result of the differences that are present between these two, when the court has been asked to grant the relief due to unconscionable dealings, the court is under an obligation to consider the consideration that has been supplied by the stronger party. However in some cases, even if sufficient consideration has been supplied by the stronger party, the transition between the parties can be termed as unjust or unfair due to the reason that the other party was suffering from a disability. However, Gibbs J. had arrived at his conclusion on the grounds that there was a failure on part of the bank to make the relevant disclosure and as a result, it can be said that the bank had made misrepresentation.

8: The three ways in which, according to Mason J., it can be stated that total unequal bargaining power was present among the bank and the elderly couple are as follows:-

Mr. and Mrs. Amadio were not proficient in business matters and therefore they relied on their son for advice but in this case, Mr. Vincenzo had his own interests to serve and consequently he asked his parents to give the guarantee for his company.

The elderly couple, due to their particular disabilities, was not in a position to determine if the transaction was favorable to them or not. In this case, they were also driven by the wish to support their son.

iii. Mason J. also pointed out towards the fact that the appellants were 76 and 72 years old and were not very conversant in English language. In the same way, they lacked the business experience that can be expected from any person who is going to enter a transaction at this level.

9: Deane J. and Mason J. had talked about the legal differences that exist between unconscionability and undue influence. Therefore even if a connection is present between these two, however a major difference was pointed out in this case. It was stated that although a connection may be present between these two, it cannot be said that these two doctrines are the same. Therefore when a party has alleged undue influence, the court has to look at the quality of consent given by the weaker party. On the other hand, when the case is based on unconscionable conduct, the court has to explore the behavior of the stronger party if such party is dealing with the a party under a particular disability.

10: According to the ratio adopted by Deane J., the elderly couple could not understand the nature/effect of the transaction that they intended to become involved in. The result was that this case, independent advisor should have been given to them regarding the significance of the fact that the probable surety should discover the monetary situation of the party for which it is going to give a guarantee. Due to these reasons, Deane J. stated that the bank had an obligation to provide this information to Mr. and Mrs. Amadio when they were going to enter into the transaction.

11: Dawson J. had given a dissenting judgment and he stated that the bank can be held liable to a guarantor only if the guarantor has been induced by some misrepresentation. The test that can be used in such a case is to see if the guarantor should have been informed by the bank regarding the state of account of the party for which guarantees going to be provided. Dawson J. stated that the bank was not under an obligation to notify probable guarantor concerning the state of account of their client.

Reference

Commercial Bank of Australia Ltd v Amadio [1983] HCA 14