Solution Code: 1ADHE
This assignment falls under Business Law which was successfully solved by the assignment writingexperts at My Assignment Services AU under assignment help service.
1 State three causes of action (ie, legal issues) which Mr and Mrs Amadio raised inchallenging the mortgage guarantee they had signed?
2 In reversing the decision of the trial judge, what three conclusions did the appeal court come to after its examination of the facts?
Answer the following from the judgment of Justice Gibbs
3 Is a bank always required to inform an intending guarantor about the state of theaccount of the customer which is to be guaranteed? If not, in what circumstances would a bank be required to inform a potential guarantor about this?
4 What were two facts in this case which persuaded Justice Gibbs that the bank should have made such a disclosure?
5 What was the ratio for Justice Gibbs’s decision of the case in favour of Mr and Mrs Amadio (i.e., what was the legal issue or issues (not just facts) this judge identified to decide the case)?
6 What was the ratio for his decision?
7How was it different from the ratio adopted by Justice Gibbs?
8 Justice Mason identified three ways in which the bank on the one hand and Mr and Mrs Amadio on the other hand were positions of “gross inequality of bargaining power.” What were three of those ways?Justice Mason and Justice Deane both explained the legal difference between unconscionable conduct (unconscionability) and undue influence.
9 In your own words, what is the difference which the two judges explained betweenthese two legal issues?
10 What was the ratio for Justice Deane's decision in favour of Mr and Mrs Amadio?
11 What was the general test (ie, the proper circumstance) in which a bank would be liable to a guarantor who has been induced to give a guarantee as a result of some misrepresentation about the guarantee?
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Question One
The Amadio’s made claims that the guarantee made was not enforceable by the bank as a result of three major grounds:
Question Two
The three conclusions which the appeal court made in reversion of the trial judge’s decision include:
Question Three
According to Justice Gibbs, the guarantee contract is not one of utmost good faith whereby one party has a obligation to disclose all the material facts to the other. Rather he argues that a bank in taking a guarantee is only bound to disclose to the guarantor anything which may have taken place between the principal debtor and bank which is not naturally expected as illustrated inLloyds Bank Ltd v Harrison. Justice Gibbs provides that disclosure should only be made where there are some unusual elements in the case with regards to the account to be gave a guarantee by the guarantor.
Question Four
There two issues which Justice Gibbs argued made the bank be required to make disclosures to the Amadios:
Question Five
Justice Gibbs ruled in favour of Mr. Amadio based on the fact that the bank failed to disclose to the Amadios the above two unusual features of the account that the son’s company was not solvent and that they had existing relationships and terms with the son. The bank as such misrepresented materials elements of transaction between the company and itself. Based on this, Judge Gibbs concluded that the guarantee is not binding to the Amadios.
Question Six
According to Justice Mason, the knowledge which was held by Mr Virgo was also the knowledge of the bank. Justice Mason ruled that the Amadio’s suffered a special disadvantage when compared to the banks on the facts existing on the accounts of the company and as such unconscionable for the bank to rely on the guarantee. The bank had higher bargaining power when entering into the contract of guarantee as they were aware that Vincenzo was likely to default given his unsteady business position and that he was likely to default.
Question Seven
While Justice Mason relied on whether or not the bank conducted an unconscionable dealing whereby the bank had higher bargaining power and ha the Amadios at a special disadvantage, Justice Gibbs based his ruling in favour of the Amadios based on misrepresentation through non-disclosure by the bank.
Question Eight
Justice Mason identified the following three ways as gross inequality of bargaining power between the Amadios and the bank:
Question Nine
Justice Mason and Justice Deane explained the difference between unconscionability and undue influence:
Question Ten
Justice Deane decides in favour of the Amadios based on the fact that the Amadios needed advice on the nature and implications of the transactions they were entering into. This advice should have been given by the bank with regards to the state of the customer’s account and the unusual features of the account. This would have likely resulted to the couple not entering into the guarantee contract and as such there is a special disadvantage for the couple to the bank.
Question Eleven
According to Justice Dawson, the general test which would have made the bank liable was non disclosure which would arise from breach of duty on its parts as illustrated in paragraph 15. He argued that the fact that the bank required a guarantee on the accounts of the client indicated that the customer had insufficient resources and this should have been obvious to the Amadios.
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