The parties to the case are the respondents, Mr and Mrs Amadio and the appellants, The Commercial Bank of Australia. The respondents were two Italian migrants of advanced age, both with limited knowledge of the English language2 and limited formal education.3 Their son’s, Vincenzo Amadio’s company, V. Amadio Builders Pty. Ltd was known to the bank and to the bank manager, Mr Virgo.4 As of October 1976, the company exceeded its overdraft limit of $80,000 and from this time onwards, the company continued to be unable to repay the amount owed.
On 18 March 1977, the bank closed the account due to the overdraft. However, on 24 March 1977, the account was reopened by the bank and the credit limit temporarily increased to $270,000. The bank would
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(1983) HCA 151 CLR 447
2.The Commercial Bank of Australia Ltd v Amadio (1983) HCA 151 CLR 447, 451
3. Ibid 450.
4. Ibid.
5. Ibid 471.
6. Ibid 449.
7. Ibid 472.
8. Ibid 454.
9. Ibid 449.
10. Amadio v Commercial Bank of Australia Ltd (1981) SASC 5303
11. The Commercial Bank of Australia Ltd v Amadio (1981) 95 LSJS, 419
12. The Commercial Bank of Australia Ltd v Amadio (1983) HCA 151 CLR, 447
Ground of Appeal
The grounds of appeal the appellants identified is that the principles applied in the Supreme Court of South Australia (Full Court), from the case Blomely v. Ryan did not apply to the case in dispute.13
The appellants further specified that these principles did not apply as “no situation existed that the bank” would not “naturally expect”. In addition, the bank was also unaware of any misrepresentation or impropriety the respondents had suffered and therefore the bank viewed the guarantee as legally valid. 14
Analysis of Decision
Justice Gibbs C., identifies in his verdict that the appeal should be dismissed as the bank failed to release information it was required to disclose, due to there being factors that were
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Moreover, Gibbs C.J states that in order for an agreement to be “unconscientious”, one party must take advantage over any “disabilities” present in the other party. However, he felt that the respondents did not suffer any “disabilities” during the transaction that the bank could have used unfairly.29
The dissenting decision provided by Justice Dawson J. also constitutes as obiter. For example, according to Dawson J., if the respondents had asked questions specifically to the bank, the bank would have been, by law, required to answer those questions. The Amadio’s did not ask any direct inquiries and the bank had no obligation to ‘volunteer’ information to their client.30
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23.
24. The Commercial Bank of Australia Ltd v Amadio (1983) HCA 151 CLR 447, 455
25. Ibid 448.
26. Ibid 488.
27. Ibid
Analysis / Ruling of the Court. The district court granted the employer’s motion for summary judgement on the sexual harassment claim due to the fact that Sherry Lynch treated both men and women equally in this case; that is, she behaved in the same vulgar and inappropriate way towards both genders. For this reason, Smith’s gender was not a contributing factor to the harassment, which is one of the conditions that would have to be met for the sexual harassment claim. The appellate court agreed and affirmed the district court’s judgement. The district court ended up excluding evidence pertaining to the sexual harassment claim because the sexual harassment claim had been dismissed on summary judgement, and because the court decided that the details of the harassment bore little relevance to the retaliation case whereas this evidence would be unfairly prejudicial to Hy-Vee. The appellate court affirmed the district court’s judgement. Smith did not offer any specifics on what evidence she would have wanted to present, which made it hard for the court to determine whether this evidence was material to the retaliation case or not. In her opposition to the motion in limine, she said she only wanted to discuss the harassment case in general, including mentioning that Lynch had harassed/touched her inappropriately. Hy-Vee had no objection to this, and Smith got to present this much evidence in the trial. Therefore, the appellate court found that she waived any objection to the
The case went back to the Supreme Court of Queensland where Justice Moynihan gave a presentation of the facts of the case.
It supported the view in Tasmania that an appellate court should consider the Evidence afresh when reviewing a trial judge’s ruling. There was no dispute in this issue where both the parties in this case concurred to the approach taken. Therefore, it can be said that the reasoning of Underwood CJ in L v Tasmania and Basten JA (in dissent) in Zhang was accepted.
The decision of the House of Lords in City of London Building Society v Flegg marks a key stage in how the balance is drawn between occupiers and creditors in priority disputes; the seeds of which were originally planted in the Law of Property Act 1925. It posed a serious challenge to the conventional understanding of overreaching and the machinery of conveyancing.Ref ?
Washington Law Review, Vol. 86, Issue 4 (December 2011), pp. 841-874 Barnum, Jeffrey C. 86 Wash. L. Rev. 841 (2011)
Equuscorp launched proceedings in the Supreme Court of Victoria against each of the respondents. Equuscorp’s claims were for “loss and damage” for breach of the loan agreements and for money had and received. The trial judge dismissed Equuscorp’s contractual claim in all eight cases and upheld the restitution claim in two cases. The respondents appealed this decision in the Supreme Court of Victoria’s Court of Appeal. In this appeal, the majority held that the trial judge erred and that Equuscorp was not entitled to restitution. Equuscorp appealed against the decision of the Court of Appeal in relation to the three respondents. Its grounds for appeal included that the Court of Appeal erred in deciding: a) that Equuscorp was not entitled to restitution for the unenforceable loan agreements; b) that it was not unjust for the respondents to keep the amounts pursuant to the unenforceable loan agreements; and c) that restitution was not assigned as a right or remedy to recover the amounts under the unenforceable loan agreements.
Syme, D. (1997). Martin Bryant's Sentence- What the judge said, Retrieved 5 July, 2003, from http://www.geniac.net/portarthur/sentence.htm. 7. The Australian Encyclopaedia.
An active Judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes in favor of en banc consideration. Fed. R. App. P. 35.
was clear in his dissenting opinion of the current appeal court and the lower court that the area of
This essay will discuss the issues extracted from the case and give suggestions to Rosie and Frank. The analysis will be based on Australian Business Law and divided into two main parts for different characters in this case. Firstly, issues and recommendation relevant to Rosie will be explained.
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