Agricultural and Rural Finance Pty Limited & Anor v John Edward Atkinson & Ors [2010] NSWSC 635 (17 June 2010)

Contract – Unjust contracts – Proceedings constitute residue of test case having travelled through a decision at first instance (Agricultural and Rural Finance Pty Ltd v Atkinson and others) [2006] NSWSC 202, a decision before the New South Wales Court of Appeal (sub nom Gardiner v Agricultural and Rural Finance Pty Ltd) [2007] NSWCA 235 and the decision of the High Court of Australia (sub nom Agricultural and Rural Finance v Gardiner) [2008] HCA 57; (2008) 238 CLR 570
Remaining issues concern defendants’ Contracts Review Act and punctuality cases
Whether Act applies
Whether defendants entered into contracts in the course of or for the purpose of a trade, business or profession within the meaning of s 6(2)
Proper scope of that exclusion
Whether it covers investment contracts entered into as a matter of personal finance
Whether the farming exception contained in s 6(2) applies to the first defendant
Proper scope of that exception
Ellison v Vukicevic (1986) 7 NSWLR 104 at 111 applied
Relevant steps involved in applying s 7(1) of the Act
Framework for determining whether a contract is unjust within the meaning of s 7(1)
Point at which it is determined whether a contract is unjust
Whether the Court focuses on the particular contract or the overall transaction
Principles concerning meaning of ‘unjust’ under the Act
Factors contained in s 9(2) are not exhaustive
Whether, if it is established that provisions of one contract are unjust, it is possible to obtain relief in respect of a related contract
Public interest consideration under s 9(1)
Baltic Shipping Company v Dillon “Mikhail Lermontov” (1991) 22 NSWLR 1 applied
Provisions in question were not subject of negotiation, whether negotiation was reasonably practicable
Purpose of s 9(2)(b), 9(2)(c)
Whether provisions in question were particularly complex
Whether provisions in question reasonably necessary for protection of legitimate interests of second cross defendant, the indemnifier
Whether loss of indemnity was a grossly disproportionate consequence in the event of late payment of interest and principal payments
Contracts Review Act 1980 ss 4, 6, 7, 9,15, 16, Sch 1
Onus of proof
Whether issue was decided in Gardiner Test Case – Defendants bear onus of proving punctual performance
Probative value of evidence substantially outweighed by danger that evidence would if allowed by unfairly prejudicial to the plaintiff and/or be misleading or confusing and/or cause or result in undue waste of time
Evidence Act 1995 s 69(2)