Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
5 Cards in this Set
- Front
- Back
|
Contractors Bonding Ltd v Snee |
- Richardson J - widely accepted view in NZ - undue influence is the improper abuse or exploitation of those whose consent has been impaired - followed Morgan |
|
|
Barclays Bank v O'Brien |
- NO LONGER APPROACH - divided cases of undue influence into 2 categories that had different requirements |
|
|
National Westminster Bank v Morgan (manifest disadvantage) |
- APPROACH: - a relationship of influence or dominance by one party over the other is not sufficient to allow a transaction to be set aside for undue influence - it must also be shown that the transaction was wrongful in that it constituted a manifest and unfair disadvantage to the person seeking to avoid it |
|
|
******Royal Bank of Scotland v Etridge****** |
- FOLLOW FOR EVERYTHING - rejects O'Brien classifications and approach - BROAD APPROACH: - undue influence in any particular case should be determined by an evaluation of all the circumstances and unhampered by formal elements or requirements - SUMMARY OF POSITION (1) where there is a fiduciary or similar relationship between parties, there is a legal and irrebutable presumption of trust and confidence => there is no legal presumption that any influence arising out of this is undue (2) presumed undue influence is in essence the same as actual undue influence. difference lies in how it is proved + Actual = proved directly, by evidence of the actual exertion of wrongful influence + otherwise prove circumstances which justify the drawing of evidential inference that undue influence has occured. (3) Evidential presumption of undue influence arises where there is a relationship involving elements such as trusts, confidence, reliance and dependency by one party towards the other, and the circumstances of the transaction call for an explanation (4) The question always is whether undue influence has been established on the facts as they have been proved. The burden of proof is on the plaintiff |
|
|
A-G for England and Wales v R |
- affirmed and applied the principles of Etridge - thus they now form the principles of the law in NZ |
