| Mr and Mrs Di Angelo seek your advice on civil proceedings being conducted against them by the Commercial Bank of Anguish (CBA) for recovery of an amount of $2 million. Mr and Mrs Di Angelo placed their assets up as security on a loan issued to their only son, Paolo who wanted to run a winery business. Unfortunately, the winery business did not make any money and Paolo declared bankruptcy.
Further investigation reveals that Mr. and Mrs. Di Angelo came to Australia in 1950 from Italy. They speak very little English, they never learned to read or write in English, and they have no experience in legal matters. Mr. Di Angelo worked as a farm labourer for many years and eventually opened a fruit and vegetable store in Griffith where he worked with his wife. They purchased a house in Mildura. Their home and the store were purchased from savings. In 2012 they bought a small farm of 200 hectares, again purchased from savings. Mr. Di Angelo hoped to retire to the farm and make his own wine. Since adulthood, Paolo had managed his parent’s financial affairs. He instructed the solicitors and the accountants on their behalf. In 2012 he took them to a branch of the CBA and told them just to sign some documents. They trusted their son and signed the documents without question. The documents they signed were written in English and contained a great deal of fine print. The purpose and content of the documents were not explained to them by Paolo or the Bank Manager. They were not verbally advised to seek independent legal advice. However, multiple clauses in the documents did advise them to seek independent legal advice. The documents secured their assets against money loaned to Paolo in order to conduct his winery business. After Paolo declared bankruptcy, Mr. and Mrs. Di Angelo were served with a Summons issued by CBA seeking to recover $2 million. The market value of their house, their fruit and vegetable store, and their farm taken together amount to $2 million. A friend suggests to you that CBA’s conduct is unconscionable. However, your friend notes that while the term unconscionable is well recognised, it is a difficult term to define. With reference to legal authority, advise Mr. and Mrs. Di Angelo on the legal issues. Assume that your advice will be translated by a qualified lawyer who is fluent in English and Italian. |
Notes on the Assignment:
- The aim of this assignment is to enable you to demonstrate your ability to analyse facts, provide a concise description of the area of law which applies to the relevant facts, and critique possible defences;
- If there are statutory provisions which are of relevance to your answer then emphasis should be placed upon the relevant legislation and regulations in force in New South Wales;
- Review the resources available to all UNE students in CCH online, Lexis Advance, Westlaw AU. For example CCH online has a practice area that deals with competition, consumer and contract law;
- What is unconscionable conduct?;
- Describe the array of common law and equitable principles that have developed in the Australian courts over many years that apply and relate to the concept of unconscionable conduct;
- Are there any recent cases concerning banking and finance and unconscionable conduct?;
- Is the Australian Consumer Law of relevance?;
- Is the Australian Securities and Investments Commission Act 2001 (Cth) of relevance?; and
- You may like to look at the following materials (available online through the UNE Library) which provide guidance on drafting legal essays:
– Pamela Samuelson, ‘Good Legal Writing: Of Orwell and Window Panes’ (1984) 46 University of Pittsburgh Law Review149;
– David Ross, ‘Legal Writing’ (2006) 1 Original Law Review 85; and
– Gerald Lebovits, ‘Legal Writing Myths’ (2014) The Scribes Journal of Legal Writing 114
