The deed of forgiveness was held to be an unconscionable bargain.
The finding of unconscionable bargain meant that their Honours now had to consider the appropriate relief, given that the plaintiffs were seeking to have the deed of forgiveness set aside, but not the entire transaction, as indicted above.
Although it was not necessary for them to do so, their Honours examined the matter of relief if an unconscionable bargain were established.
It is of course a truism to say that equity acts in personam and that a finding that the transaction was an unconscionable bargain would create in Bill a personal equity allowing him to have the transaction set aside as voidable.
It certainly cannot be made to fit the White v Jones model without severely distorting the law of unconscionable bargain.
27) Unconscionable bargain is a legitimate doctrine of the private law.
The doctrine's] best justificatory principle constrains the range of factors judges can appeal to in deciding in any case whether there has been an unconscionable bargain.
In a similar vein, one of the current authors has argued (112) that the doctrine of undue influence is based on a notion of unconscionability which has clear parallels with the unconscionable bargain doctrine as exemplified in cases such as Evans v Llewellin, (113) Fry v Lane, (114) Baker v Monk (115) and Cresswell v Potter.
147) In that case an old, illiterate man mortgaged his home to support the business ventures of his son and central to the Court of Appeal's refusal to utilise the unconscionable bargain doctrine was the view that the transaction was not to the manifest disadvantage of the father.
34) See L Fox O'Mahony and J Devenney, 'The Elderly, Their Homes and the Unconscionable Bargain doctrine', forthcoming in Modern Studies in Property Law--Volume 5 (Hart Publishing, Oxford, 2009) and FR Burns, 'The elderly and undue influence inter vivos' [2003] 23 Legal Studies 251.
When explicating the equitable doctrine of
unconscionable bargains in Amadio, the High Court clearly stated that it was only the setting in which a contract is made that is relevant to a finding of unconscionability.
