litigants to argue unconscionable conduct would be considerably
reduced.
The response from the High Court indicates that the ‘special disability’
requirement will not be especially onerous at all. In Louth v Diprose
(1992) 110 ALR 1 it was held that emotional dependence can be a
significant factor in proving the disability. There a solicitor successfully
set aside a gift of a house that he made to a woman with whom he was
infatuated. In a more recent decision of the High Court a failure by the
defendant’s nephew to obtain separate and objective legal advice for his
uncle from whom the nephew was obtaining a benefit was relevant to
the disadvantage of the uncle. Other factors were the advancing years of
the uncle (he was 84 years old) and the emotional attachment for, anddependency on the nephew. In that case the uncle sold one property to (^)
the nephew at a considerable discount and gave the nephew an option to
purchase another again at a much reduced value. In a general sense the
uncle was a willing participant in the transaction and the case shows
how difficult it is to assess unconscionable conduct. In that instance the
trial judge and Court of Appeal by a majority (2-1) found for the
nephew whereas the High Court, again by a majority (3-2) found against
him.
Allied to unconscionable conduct are the doctrines of duress and undue
influence.
SELF ASSESSMENT EXERCISE 3
Chukwu has been nominated for a ministerial appointment. In his youth,
Chukwu committed several indiscretions which would embarrass him in
the committee before the senate committee if they became known during
the screening exercise. Okafor, by chance, became aware of Chukwu’s
past and threatened to expose him unless Chukwu sold him Chukwu
Plaza, at Wuze Abuja at a substantial undervaluation. Chukwureluctantly agreed and signed a contract. He later reconsidered that (^)
matter and now wishes to get out of the contract. Advise Chukwu.
Would your answer be different if Okafor had threatened instead to send
his associates to Chukwu’s house to “persuade” him?
3.5 Discharge of a Contract
Thankfully the vast majority of contracts ate properly performed by both
parties and no cause arises to go to litigation. Depending upon the mode
of discharge of the contract however there may be continuing
obligations of one or other party following discharge.