Unconscionable and Unjust Contracts

• Either you or the other party to your contractual agreement thinks that there was unconscionable conduct/an unfair term and you either need to argue the case for or against this proposition.
• You need to pursue or defend a case arguing unconscionable conduct under the Australian Consumer Legislation under section 21 to Schedule 2.
• There is a dispute about a standard form contract involving a individual or a small business regarding an allegedly unfair term.
• One party, against good conscience, imposes price increases on the other (to reduce a liability that it has).

Historically, courts have exercised jurisdiction to set aside contracts and other dealings on a variety of equitable grounds. They include fraud, misrepresentation, breach of fiduciary duty, undue influence and unconscionable conduct. In one sense they all constitute species of unconscionable conduct on the part of a party who stands to receive a benefit under a transaction which, in the eye of equity, cannot be enforced because to do so would be inconsistent with equity and good conscience. But relief on the ground of "unconscionable conduct" is usually taken to refer to the class of case in which a party makes unconscientious use of his superior position or bargaining power to the detriment of a party who suffers from some special disability or is placed in some special situation of disadvantage, e.g., a catching bargain with an expectant heir or an unfair contract made by taking advantage of a person who is seriously affected by intoxicating drink. Although unconscionable conduct in this narrow sense bears some resemblance to the doctrine of undue influence, there is a difference between the two. In the latter the will of the innocent party is not independent and voluntary because it is overborne. In the former the will of the innocent party, even if independent and voluntary, is the result of the disadvantageous position in which he is placed and of the other party unconscientiously taking advantage of that position. - Mason J in Commercial Bank of Australia Ltd v Amadio [1983] HCA 14