In Part IV I shall comment on what the High Court's decision does to the law of unconscionable bargain. Almost seventeen years ago, in Attorney-General v Equiticorp Industries Group Ltd (In Statutory Management) (3) McKay J, speaking for himself and the other members of the New Zealand Court of Appeal, Richardson and Henry JJ, memorably stated: (4)
The deed of forgiveness was held to be an unconscionable bargain. Bill was under a special disability, it was said, because he had in effect an emotional dependence on Neil.
(8) 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.
(12) 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.
In particular, for the doctrine of unconscionable bargain, the outer limits of the requirement for special disability appear to have been seriously muddied.
Returning to the cases on the unconscionable bargain doctrine which adopt a clear claimant-sided orientation, further analysis reveals, at least, two different approaches within them: the 'causal-connection' approach and the 'status' approach.
(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'  23 Legal Studies 251.