Clarity or confusion? Duress, undue influence and unconscionable conduct in the High Court

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Abstract

The independent spheres of operation of the vitiating factors duress, undue influence and unconscionable conduct, and the relationships between them, are the subject of ongoing debate. The status of ‘lawful act duress’, in particular, is an open question in Australia. In Thorne v Kennedy, the High Court had occasion to consider all three vitiating factors. This article argues that, although the Court provided a clear statement of the principles of duress, undue influence and unconscionable conduct, that clarity is undermined by the Court’s application of the principles. Specifically, the plurality’s approach conflates undue influence and duress, while asserting that a distinction should be maintained between them. Further, the case might best have been analysed as involving lawful act duress. The Court’s failure to consider the status of this doctrine represents a missed opportunity to clarify the law.
Original languageEnglish
Pages (from-to)91-118
Number of pages28
JournalJournal of Equity
Volume12
Issue number1
Publication statusPublished - 2018

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