Recent Cases

Wakim v Senworth Capital Pty Ltd [2024] NSWCA 102 (10 May 2024) (White JA at [1]; Basten AJA at [8]; Griffiths AJA at [9])


Catchwords:


CIVIL PROCEDURE – Default judgment – Setting aside – whether reasonably arguable defence on the merits – where the primary judge failed to have regard to the tension in some authorities on the requirements to establish the proposed equitable unconscionability defence – where the proposed defence under the Contracts Review Act 1980 (NSW) raised an issue of principle, namely whether the unjustness of a contract can be established by reference to matters of which the counterparty was ignorant when the contract was entered into

EQUITY – Unconscionable conduct – standard of knowledge of the applicant’s special disability or disadvantage required on the part of the other party – whether mere inadvertence or indifference on the part of the stronger party is sufficient as opposed to establishing exploitative or predatory conduct – relevance of the distinction between active and passive conduct on the part of the stronger party

EQUITY – Undue influence – Rule in Yerkey v Jones – Effect on third parties – where the applicant claimed to be under the control and influence of her husband – whether actual or constructive knowledge is required on the part of the third party or rather, whether notice of the weaker party’s disadvantage is sufficient