Words: 3425
The value of the guarantee increased over the years in line with the overdraft, until in 1969 the guarantee exceeded the entire value of the property. Both, Mr. Bundy and his son had been customers of the bank for many years. Although Mr. Bundy had been advised by his solicitor not to extend the guarantee any further after it had reached about two thirds of the value of the property, the bank kept extending loans to Mr.
Bundy’s son company while increasing the security over the house with the full knowledge that his son’s company was in a precarious position, and was facing such structural and financial difficulties that it would have been a matter of time before it was foreclosed by its creditors. Mr. Bundy relied on Mr. Head’s advice as the bank manager in relation to each transaction. Mr. Head did explain Mr. Bundy the financial position of the company but did not tell Mr. Bundy that the company was in serious trouble.
Eventually, Mr. Bundy’s son company collapsed in 1970 and Lloyd Bank sought and obtained a court order to sell Mr. Bundy’s Yew Tree farm. Mr Bundy appealed claiming the contract should not be enforced due to the circumstances under which he had signed the mortgage. At appeal, the judge upheld the contract and ruled in favor of the bank. PROCEDURAL HISTORY. The appeal was heard in the Court Of appeal (Lord Denning M. R. , Cairns LJ. and Sir Eric Sachs) from a judgment by Judge McLellan at Salisbury County Court.
A county court judge, Judge McLellan of the XXXX court granted Lloyds bank an order for possession of the Yew Tree Farm in favor of Lloyds bank on June 6, 1973. house and dismissed the defendant’s counterclaim for the setting aside of the guarantee and legal charge of December 17, 1969. GROUNDS FOR APPEAL AND/OR ISSUES TO BE DECIDED. 1) That the judgment that there was no duty on the plaintiff through its branch manager to ensure that the defendant received independent advice before executing the legal charge and joint guarantee respectively was against the weight of the evidence. That the judge ought to have held; a) That there was a relationship of confidence between them giving rise to a fiduciary duty on the part of the plaintiff through its branch manager not merely to explain the effect of the joint guarantee and legal charge to the defendant but to ensure that he was advised whether or not they were reasonable and proper transactions for him to enter into; (b) That the plaintiffs branch manager did not on the evidence give such advice, (c) Further or alternatively, that in view of the commercial importance to the plaintiff of obtaining security from the defendant to cover the existing debts of his son’s company, MJ.
B. Plant Hire Ltd. , it was not in a position through its branchy manager to give such advice itself and ought therefore have ensured that such advice was given by an independent source, and (d) that accordingly the plaintiff had failed to discharge its fiduciary duty and the joint guarantee and legal charge ought to be set aside or declared void. 2) That there was insufficient evidence of forbearance or the giving of time from which to infer consideration for the joint guarantee.
On the evidence, and in particular that of the plaintiffs branch manager Head that the plaintiff had not reached a decision what legal action it would take against the defendant, Michael Bundy or M. J. B. Plant Hire Ltd. , or under its earlier securities if the defendant failed to sign the joint guarantee, and that the moneys secured by the joint guarantee were payable on demand, the judge ought to have held that it was void for want of consideration. What are the issues that the present court now needs to decide? The court must decide whether under the circumstances, the bank had discharged all fiduciary duties to Mr.
Bundy when it mortgaged the Yew Tree farm and granted loans to his son’s failing company, and whether the contract entered by Mr. Bundy entitle the bank to take possession and sell Mr. Bundy’s house. SUMMARY OF COURT’S ANALYSIS OF LAW. The court examined cases and principles in four common law categories: “Duress of goods”, “unconscionable transactions”, “undue influence”, “undue pressure” and one fifth category in maritime law: “Maritime salvage agreements”. The court reasoned that a common thread emerged from those cases: “The inequality of bargaining power”; which is the principle applied to this case.
PRINCIPLE OF LAW TO BE APPLIED Mr Bundy’s bargaining power was impaired as he received some independent advice but relied mainly in the bank manager’s advice. The court applied the following law principles: a) Duress of goods. The stronger demands of the weaker more than is justly due, and of the weaker pays it in order to get the goods. Such a transaction is voidable. Mr Bundy was in a precarious position trying to help his son and would have submitted to any pressure by the bank to increase the security for his son’s company. ) Unconscionable transaction. A man is so placed as to be in need of special care and protection and yet his weakness is exploited by another far stronger than himself so as to get his property at a gross undervalue. c) Undue influence. These are divided into two classes as stated by Cotton L. J. in Allcard v. thinner (1887) 36 Ch. D. 145, 171. The first are those where the stronger has been guilty of some fraud or wrongful act—expressly so as to gain some gift or advantage from the weaker.
The second are those where the stronger has not been guilty of any wrongful act, but has, through the relationship, which existed between him and the weaker, gained some gift or advantage for himself. d) Undue pressure. Where an agreement, hard and inequitable in itself, has been exacted under circumstances of pressure on the part of the person who exacts it, this court will set it aside”: see Ormes v. Beadel (1860) 2 Giff. 166, 174 H e) Salvage agreements. When a vessel is in danger of sinking and seeks help, the rescuer is in a strong bargaining position. The vessel in distress is in urgent need.
The parties cannot be truly said to be on equal terms. The Court of Admiralty have always ecognised that fact The ” fundamental rule ” is if the parties have made an agreement, the court will enforce it, unless it be manifestly unfair and Unjust; but if it be manifestly unfair and unjust, the court will disregard it and decree what is fair and just’. DESCRIPTION OF HOW LAW APPLIED TO THE FACTS. The court applied the following law to the facts: The general rule of law. This refers to contracts that in principle states “a customer who signs a bank guarantee or a charge cannot get out of it”.
Yet there are exceptions to this general rule. The courts will set aside a contract, or a transfer of property, when the parties have not met on equal terms—when the one is so strong in bargaining power and the other so weak—that, as a matter of common fairness, it is not right that the strong should be allowed to push the weak Undue influence. Although the defendant was free to take independent advice he explicitly relied upon Mr. Head. Mr. Head knew that reliance was being put upon his advice. Once Mr. Head knew that he was being relied upon, there was influence. Abuse of a fiduciary relationship.
The facts show that Mr. Head realized that the defendant relied upon him implicitly. A party abusing the fiduciary duty imposed by a confidential relationship will not be able retain any advantage obtained. Conflict of interest. Mr. Head came to see Mr Bundy with the documents already prepared to b signed on December 17, 1969. It was in his, and his employers’ financial interest to get the documents executed. Duty of care. Where there is a transaction between A and B and A knows that B relies upon him implicitly, the duty of care arises. In this case, there was a special relationship between Mr.
Bundy and the bank and the duties imposed by that special relationship were not discharged. Equity. Equity finds that a conflict of interest creates duty. The enormous importance of the changes in the judge’s notes shows that he did not recognize the enormous importance of Mr. Head’s evidence of the defendant’s implicit reliance upon him. Independent advice. Independent advice must be given with a knowledge of all the relevant circumstances and be such as would be given by an honest and competent adviser acting solely in the interests of the person seeking it.
Mr Bundy received some independent advise but he relied in Mr Head’s advise instead. Reliance. Mr. Head knew that reliance was being put upon his advice. Fiduciary relationship. The elements necessary to establish the existence of the special fiduciary “relationship are: (1) advice given; (2) reliance upon that advice; (3) an dement of confidentiality; (4) the person in whom the confidence is imposed has some interest in the transaction so that there is a conflict of interest; (5) the knowledge of the reliance upon the advice. Abuse of trust or confidence.
An abuse of trust or confidence must be shown. Mr. Head owed no duty of care to the defendant. He assumed a duty of care to the defendant to the extent of explaining what the documents meant, but took it no further. Moral turpitude. No immoral motives are suggested in Mr. Head; but he did not appreciate the extent to which he was being relied upon. Equitable fraud. There is no case of equitable fraud. The defendant has to show that Mr. Head was possessed of some influence over him and was guilty of some clouding of his judgment.
The doctrine of dependent relative revocation. Once one establishes that there was a relationship, the only way in which the presumption could have been displaced would have been to have got the defendant to have independent advice. DECISION. The appeal was allowed. Lord Denning MR’s judgment concluded that where there was unequal bargaining power, the contract would not stand if the weaker party did not seek legal advice. ORDER MADE BY THE COURT. SOCIAL OR CULTURAL CONTEXT. Inequality of bargaining power” under English law gives relief to a person who, without independent advice, enters into contracts with terms, which are very unfair, or transfers property for a consideration, which is grossly inadequate. This is when his bargaining power is grievously impaired by reason of his own needs or desires, or by his own ignorance or infirmity, coupled with undue influences or pressures brought to bear on him by or for the benefit of the other. Part B – Case Law Research (10 marks) Case Citations 1.
Explain what each element of the case citation for your assigned case denotes. (1 mark) Lloyds Bank Ltd v Bundy [1975] QB 326 Lloyds Bank Ltd v Bundy 2. List any parallel (alternate) citations for your assigned case. How did you locate this information? (1 mark) Locating the Full Judgment of Cases 3. Briefly describe the steps that you would take to locate the full judgment of your assigned case electronically using the Library’s databases. (1 mark) 4. Outline which authorised reports series’ can be accessed via the LexisNexis AU and Legal Online databases. (1 mark)
Finding Judicial Consideration of Cases/Noting Up In this part of the assignment, you will research how your assigned case has been treated by Australian courts. To complete this task, consult two electronic case citators/annotators. 5. Have any subsequent Australian cases followed or applied your case? If so, insert the citation details of one subsequent case in the table below. (1 mark) |Citation of your assigned case |Source/s used to |Citation of the subsequent case |Treatment (followed/applied) | |(in correct AGLC style) |update your case e. g. (in correct AGLC style) | | | |CaseBase Cases | | | |Lloyd’s Bank Ltd v Bundy [1975] QB |LexisNexis |Coleman v Myers [1977] 2 NZLR 225 |Applied | |326 | | | | |Lloyd’s Bank Ltd v Bundy [1975] QB |LexisNexis |Daly v Sydney Stock Exchange Ltd (1986) |Applied | |326 | |65 ALR 193 | | |Lloyd’s Bank Ltd v Bundy [1975] QB |LexisNexis |New Zealand Netherlands Society “Oranje”|Applied | |326 | |Inc v Kuys [1973] 2 NZLR 163 | | |Lloyd’s Bank Ltd v Bundy [1975] QB |LexisNexis |Hatrick v Commissioner of Inland Revenue|Applied | |326 | |[1963] NZLR 641 | |Lloyd’s Bank Ltd v Bundy [1975] QB |LexisNexis |Webb v Australian Agricultural Machinery|Considered | |326 | |Pty Ltd (1990) 6 WAR 305 | | |Lloyd’s Bank Ltd v Bundy [1975] QB |LexisNexis |Shotter v Westpac Banking Corporation |Discussed | |326 | |[1988] 2 NZLR 316 | | |Lloyd’s Bank Ltd v Bundy [1975] QB |LexisNexis |Foti v Banque Nationale de Paris (No 1) |Distinguished | |326 | |(1989) 54 SASR | | |Lloyd’s Bank Ltd v Bundy [1975] QB |LexisNexis |Commercial Bank of Australia Ltd v |Distinguished | |326 | |Amadio (1983) 151 CLR 447 | | |Lloyd’s Bank Ltd v Bundy [1975] QB |LexisNexis |Brusewitz v Brown [1923] NZLR 1106 |Distinguished | |326 | | | | |Lloyd’s Bank Ltd v Bundy [1975] QB |LexisNexis |Blomley v Ryan (1956) 99 CLR 362 |Distinguished | |326 | | | | |Lloyd’s Bank Ltd v Bundy [1975] QB |LexisNexis |Grantwell Pty Ltd v Franks (1993) 61 |Followed | |326 | |SASR 390 | | |Lloyd’s Bank Ltd v Bundy [1975] QB |LexisNexis |Hospital Products Ltd v United States |Followed | |326 | |Surgical Corporation (1984) 156 CLR 41 | | |[pic] |Note – CaseBase Clarification | | |The signal/symbol at the top of the Casebase entry beside the name of the case that you are updating provides | | |an indication/summary of how that case has been treated by later cases. Underneath, in the ‘cases referring to| | |this case’ table, you should focus on the annotation column.
The signal column on the far right-hand side | | |provides an indication/summary of how the later case listed in that row has then been treated by subsequent | | |cases (i. e. that symbol does not refer to the original case that you are updating). | | |Click on the ‘Signal help’ link at the top of the Casebase entry to learn about the meaning of the symbols. | | |Within the ensuing help screen, also look at the CaseBase Court Annotations link on the left-hand side. | 6. If you were researching how an Australian case has been judicially considered by Australian courts, which other online case law research product could you use? (1 mark) Locating cases on a legal topic 7.
Locate one authoritative Queensland case and one authoritative Commonwealth/ Federal case relating to the topic for your assigned case, as listed below. To complete this task, use First Point and one other electronic case law research product. (2 marks) Lloyds Bank Ltd v Bundy [1975] 1 QB 326 – the principle of undue influence Ratio A contract into which one party has entered with severely impaired bargaining power might not be upheld. |Case citation |Brief outline of your search strategy (including the case law | |(in correct AGLC format) |research product consulted) | |AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED v BARRY – |LexisNexis.
Using case citation and narrowing the search for | |[1992] 2 Qd R 12 – 7 August 1991 |Qld. | |National Australia Bank Ltd v Nobile & Martelli — (1988) 100 |LexisNexis. Using case citation and narrowing the search for | |ALR 227; (1988) ASC 55-657; (1988) ATPR 40-856 |commonwealth cases, ticking all courts. | 8. Are either of the cases located in Question 7 available via the AustLII website? Briefly describe your search process. (1 mark) 9. What are the advantages of relying on a decision reported in an authorised law reports series as opposed to the same decision reported on a free Internet website? (1 mark)
Part C – Secondary Sources, Annotated Bibliography & Reflections (6 marks) Objectives: 1. Locate and retrieve information on an area of law using an online legal encyclopaedia 1. Search the USQ Library Catalogue to locate books on a topic 2. Locate a journal article on a topic using keyword searching in journal indexes 3. Evaluate information according to outlined criteria 4. Cite secondary sources in accordance with the Australian Guide to Legal Citation style 5. Self- reflect upon approach to completion of assessment NB: Your annotated bibliography will be based on the three information sources that you locate while completing the following sections on secondary source research.
Secondary Sources (3 marks) |[pic] |Note – Library Access for External Students | | |External students residing in Australia can request loans of items or copies of documents (subject to | | |Copyright restrictions) from the USQ Library via the Online Requesting System DocEx. More information is | | |available from | | |Please make sure you submit your request early to accommodate for handling, postage and materials that are | | |currently on loan. |
Books and the Library Catalogue 1. Using the USQ Library Catalogue, locate the citation details for one book (excluding your textbook) that contains information on the doctrine of precedent OR the Australian judiciary/court system. Describe your search process. (1 mark) Search Process: Details of the book located: Author/s (or editor/s) – Title of the book – Edition number – Publication year – Publisher – Legal Dictionaries and Encyclopaedias 2. Search for information on the doctrine of precedent in one online legal encyclopaedia available via the USQ Library. Note the details of one relevant paragraph below and describe your search process. (1 mark)
Search Process: Details of the encyclopaedia paragraph located: Encyclopaedia publisher – Encyclopaedia name – Title number & name – Sub-title number & name (if applicable) – Paragraph number – Currency (Currency refers to how up-to-date the encyclopedia entry is – this is stated clearly at the top of each paragraph) Journal Articles 3. Locate one scholarly journal article that discusses or refers to your assigned case. To complete this task, consult an online case citator/annotator, which often lists citations for journal articles referring to a particular case, or use an online law journals index. (1 mark) Briefly describe your search process:
Details of the journal article located: Article author – Article title – Year of publication – Volume/issue number Journal title – Starting page number – Annotated Bibliography (3 marks) The purpose of the annotated bibliography is to provide you with an opportunity to locate a range of legal materials critically assess the worth of each item and learn how to apply the Australian Guide to Legal Citation referencing style. You are not expected to have a thorough knowledge of the content of the items, but you should take the time to scan through each of the items sufficiently to be able to comment on the numbered points below. As a guide, use approximately 150 words for each entry.
In later Law Courses when you will be undertaking more detailed research you will be expected to have critically evaluated all items that you have relied on. Compile your annotated bibliography based on the following:- • 1 chapter from the legal text book, as located above in question 1 (NB: off-campus students please request a copy of the relevant chapter to be supplied to you via the DocEx requesting system NOT a loan of the entire book) • 1 legal encyclopaedia paragraph, as located above in question 2 • 1 law journal article, as located above in question 3 For each bibliography item, include brief comments on the following (where relevant):- 1. Correct citation of the item using AGLC bibliography format 2. Brief description of how you located the item For example, using an online Library Database or the print collection ? Date you viewed the item 3. Brief outline of the item in terms of: ? Content and focus – what are the main arguments or topics covered? ? Currency: how up-to-date is the item? 4. Critical analysis of the item covering: ? Authority of the author/s e. g. qualifications/expertise ? Perceived audience for whom the information is written and how ‘useful’ it is in terms of meeting their needs? ? Standard/reliability of the publishers ? Point of view – is the information objective or biased in some way? ? Is the information supported by reliable evidence e. g. references to other sources? 5.
Reflections – your own brief personal comment about the item ? Could this information be conveyed more effectively? ? Was it useful? What did you learn from the item? ? Any other comment/s assessing the item NB: In relation to AGLC ‘pinpoint’ references. Pinpoint references are only used to refer to a particular point within a source, for example, a particular page or paragraph within a journal article/case or a section within a piece of legislation. This is never included in the bibliography format but is used in footnotes when you refer to, paraphrase, quote from or use a particular idea from a specific page/paragraph/section.
However, do not confuse the pinpoint reference with the starting page number which is often a required element of the citation, even in a bibliography (e. g. for cases and journal articles). Self-Reflection (30 – 50 words) Reflect back on how you have approached this assignment. How could you improve your assignment technique? For example, could you have started sooner? Did you record your research as thoroughly as you would have liked? Did you read the supporting materials provided as part of your Course Content? There is no ‘right’ or ‘wrong’ answer to this question. This is an opportunity for you to reflect on your approach and to make notes on how you can learn from that approach to do better in your next assignment.