He showered her with gifts and at one time proposed to her; she refused. At first he made no contact with the appellant, being concerned that she might think he was harassing her. - The quarrel (minor disagreement) between Louth and Diprose (when Diprose went Diprose then moved to Adelaide in February 1983 where he lived with the three children of his first marriage. however Louth arguably exaggerated the future consequence (i. no made her feelings about Diprose quite clear, and that it was he who pursued the relationship, Copyright 2023 StudeerSnel B.V., Keizersgracht 424, 1016 GC Amsterdam, KVK: 56829787, BTW: NL852321363B01, Financial Accounting: an Integrated Approach (Ken Trotman; Michael Gibbins), Company Accounting (Ken Leo; John Hoggett; John Sweeting; Jennie Radford), Lawyers' Professional Responsibility (Gino Dal Pont), Contract: Cases and Materials (Paterson; Jeannie Robertson; Andrew Duke), Australian Financial Accounting (Craig Deegan), Financial Reporting (Janice Loftus; Ken J. Leo; Noel Boys; Belinda Luke; Sorin Daniliuc; Hong Ang; Karyn Byrnes), Management Accounting (Kim Langfield-Smith; Helen Thorne; David Alan Smith; Ronald W. Hilton), Database Systems: Design Implementation and Management (Carlos Coronel; Steven Morris), Financial Institutions, Instruments and Markets (Viney; Michael McGrath; Christopher Viney), Na (Dijkstra A.J. YES: Cases Prep:-CONSULT EXAMPLE IN 'EXAM PREP PLANNING' DOC-How flexibility is bad, how constraint is good/bad-Donoghue v Stevenson = constraint v choice-Louth v Diprose = adversarial system, narrative (language)-Relate themes together = access to justice, nature of law reconsidered-Description notes: Legal independence, Mabo-Revisit McBain-Critically examine: the fact that the law is both . Desiring a more intimate relationship with her, when Louth fell into financial trouble, Diprose bought her a house and transferred it into her name. : an American History (Eric Foner), Business Law: Text and Cases (Kenneth W. Clarkson; Roger LeRoy Miller; Frank B. Louth v Diprose; [1992] HCA 61 - Louth v Diprose (02 December 1992); [1992] HCA 61 (02 December 1992) (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ); 175 CLR 621; 110 ALR 1 BarNet Jade His Honour did not consider there was any basis for the Court to: 'interfere with the primary findings of fact made by the [trial judge] or the secondary findings which he made, in particular, that the appellant manufactured an atmosphere of crisis with respect to the house when none really existed and that her conduct in that respect "was dishonest and smacked of fraud". expansion of the doctrine which would have been in favour of The intervention of equity is not merely to relieve the plaintiff from the consequences of his own foolishness. ; Jager R. de; Koops Th. [para 9]. Ltd v Amadio, Louth v Diprose and the development of precedent? Louth v Diprose, [1] is an Australian contract law and equity case, in which unconscionable conduct is considered. Diprose was infatuated with Louth. eviction from her home and suicide unless he provided the money for the in that party clearly being 'weak' in relation to the other party and In response Diprose agreed to buy her a house and, at her insistence, put it in her name. of that evidence differ from story to story purchase the house, Ratio Decidendi The respondent's ardour seems to have continued unabated; the appellant's generally offhand approach to the respondent does not seem to have altered. He observed (at para 7) that when 'a donor who stands in a relationship of special disadvantage vis-a-vis a donee makes a substantial gift to the donee, slight evidence may be sufficient to show that the gift has been procured by unconscionable conduct.' Diprose was infatuated with Louth. In those circumstances, there is much force in the appellant's criticism of certain expressions used by the trial judge, such as "unrequited love", "pathetic devotion", "utter infatuation", "feeding the flames of the (respondent's) passion" and "bizarre behaviour". 621 louth. ), Commercial Bank of Australia Ltd v Amadio, https://en.wikipedia.org/w/index.php?title=Louth_v_Diprose&oldid=1145109044, The transaction is unconscionable, as emotional dependence or attachment is a special disability whereby taking advantage of the dependent constitutes unconscionable conduct. Diprose proposed in 1982 and was rejected. drawn from single mum (negative assumptions they are the sort of people that would His Honour then went on to outline the respondent's claim and the findings at trial and on appeal to the Full Court. v Ryan], the common feature being that the donor is, to the knowledge of the - They think that Louth was an unreliable and calculating witness Mr Volkhardt owned a house in Tranmere in which the appellant was living with her children and for which she paid a low rent. (2007. this change ensures continuity between past and present (i. extensive use of precedents) His first marriage had ended in divorce and the final separation from his second wife was about to take place. He described the weakness suffered by Diprose as follows (Diprose v. Louth (No.1) (1990) 54 SASR 438, at pp 447-448): 'a relationship existed between the plaintiff and the defendant which placed the plaintiff in a position of emotional dependence upon the defendant and gave her a position of great influence on his actions and decisions. Special disability was sufficiently evidence to make it - The transaction involved a gift from the plaintiff/respondent who claimed to be under a special appeal (para 2): Copyright 2023 StudeerSnel B.V., Keizersgracht 424, 1016 GC Amsterdam, KVK: 56829787, BTW: NL852321363B01, Brunner and Suddarth's Textbook of Medical-Surgical Nursing (Janice L. Hinkle; Kerry H. Cheever), Give Me Liberty! Amadio v CBA a gift was previously considered as a - Judicial legitimacy; community acceptance of judicial authority/decisions must be witness who was prepared to tailor her evidence in order to advance her case. He further noted that the 'adverse circumstances which may constitute a special disability for the purposes of the principle relating to relief against unconscionable dealing may take a wide variety of forms and are not susceptible of being comprehensively catalogued' (para 12) but 'the common characteristic of such adverse circumstances "seems to be that they have the effect of placing one party at a serious disadvantage vis-a-vis the other".'. It extended to the extraordinary vulnerability of the respondent in the false "atmosphere of crisis" in which he believed that the woman with whom he was "completely in love" and upon whom he was emotionally dependent was facing eviction from her home and suicide unless he provided the money for the purchase of the house. The respondent tried to persuade her to stay in Launceston. - Louth intentionally exploited Diproses infatuation with her via gift, Onus is on stronger party to show transaction is fair where: -, A party to a contract was under a special disability no equality in the [6] The defendant then filed special leave for an appeal to the High Court of Australia, which was granted. The appellant was married but her marriage was about to end. 'do those conclusions permit of equitable relief with respect to the gift? upon whom he was 'emotionally dependent' - Louth was threatening that she was going to take her own life (it is later revealed Subsequently Louth Nor is there any basis for disturbing the findings that the relationship between the parties was one in which the respondent was in a position of "emotional dependence" on the appellant and that she was in a position to influence his decisions and actions.' Louth as: calculating whore (dangerous, undeserving and calculating) Louths story ended up working against her, as the evidence didnt (para 32). vis the donee; Telstra Corp v Treloar (2000) FCA 1171" The: o Ratio of decisions of o Higher courts in the o Same hierarchy are binding on all lower courts in that hierarchy. Mr Volkhardt then contacted the respondent to say that the appellant did not wish to see him. His Honour noted that in this case Diprose suffered from a weakness with respect to Louth, as described by the trial judge (above). His Honour did not consider that the evidence supported that finding. A. S., MacKendrick E., Edelman J. The facts of the case involve appellant (Louth) and respondent (Diprose). Describes Indeed, to a significant extent, she had deliberately created it. Shortly after the separation Mr Volkhardt said to the appellant, speaking of the house at Tranmere, that: "(M)aybe she should be paying more rent or maybe it would be a good idea to put her name down on the housing list because she couldn't assume she would live there forever". Justice King held that Diprose was beneficially The respondent continued to telephone the appellant and to call on her. Judge (s) sitting Gibbs CJ, Mason, Wilson, Deane & Dawson JJ. - He was deeply in love with this woman, it is believed that she falsely fabricated that The story, being so different and vague in terms of the identity of the weaker party, in comparison to Amadio, Blomley, Thus, the trial judge said, in the context of his "impressions of the witnesses who gave evidence", that the respondent was "a strange romantic character" with "a sustained infatuation for the (appellant)" and that much of his evidence was convincing but that his "demeanour was not such as to persuade me to accept evidence which I consider to be improbable or which is in conflict with other convincing evidence" And in the same context, his Honour said that he "formed the impression that the (appellant) was a calculating witness who was prepared to tailor her evidence in order to advance her case" . 'substantially dependent on the trial judge's assessment of character and credit and which were reached having regard to the demeanour of the parties in the witness box. Diprose as: emotionally dependant, romantic fool (so infatuated he didnt know what he was His Honour then referred to the trial judge's finding that Louth had manufactured an 'atmosphere of crisis' and that this was dishonest and 'smacked of fraud'. impaired his judgement. - Diprose is a solicitor (interesting interpretations by King and the High Court of his and Diprose under special disability? His Honour then referred to authorities on unconscionable conduct and to the trial judge's explicit findings of unconscientious exploitation by Louth. In 1988 when their relationship deteriorated, the plaintiff asked the defendant to transfer the house into his name. position) She had previously told the respondent that she had slashed her wrists, or attempted to do so, on two occasions in 1984 and had pointed out to him marks on her wrist which may well have been consistent with a slash. he left. women Material Facts: that she was a victim of rape and a character of extreme vulnerability rather than Equity's Conscience and Women's Inequality' (1992) 18Melbourne University Law Review808 , Lisa Sarmas, 'Storytelling and the Law: A Case Study of Louth v Diprose' (1994) 19(3)Melbourne University Law Review701 , Dilan Thampapillai, 'Archetypes of age and romance: unconscionable conduct and the High Court in Thorne v Kennedy' (2018) 37(2)University of Queensland Law Journal299 , Home Contract Law Consumer Law Cases Legislation Reading News, Made with Squarespace | Copyright and disclaimer, Justice Peter Heerey, 'Truth, Lies and Sereotype: Stories of Mary and Louis' (1996) 1(3), Samantha Hepburn, 'Equity & infatuation' (1993) 18(5), Brooke Murphy, 'Neurodivergent women in 'clouded judgment' unconscionability cases - an intersectional feminist perspective' (2018) 39, Dianne Otto, 'A Barren Future? The reason was that she was in straitened financial circumstances following the breakdown of her marriage and she hoped for help from her sister and her sister's husband, Mr and Mrs Volkhardt. of the established principles, Legal Issues - Marriage proposal and how did the majority use it as more evidence to emphasize Subsequently Louth advised Diprose she was depressed and was going to be evicted and, if this happened, she would commit suicide. equity unconscionable Skip to document Ask an Expert Sign inRegister Sign inRegister Home Ask an ExpertNew *The Maj J draws on dominant discourses and re-perpetuate them to paint Diprose as the Diprose succeeded at trial. Issue: He noted that the (para 3) 'key is to be found in the following passage from the judgment of King C.J. by the courts (whereas Louth was dependent on welfare payments and appeared the weaker 00 Report Document Comments Please sign inor registerto post comments. examined in court as being harassment, but rather evidence of Dirposes romantic This article argues that Louth v Diprose is a troublesome precedent. Louth v Diprose 1992. Louth moved to Adelaide in 1982. In part the uncertainty has arisen due to sustained feminist critiques of . She refused and Diprose brought this action. - Trial at the Supreme Court of South Australia where Diprose succeeded, His willingness to devote himself to her and to lavish her with gifts, notwithstanding that she did not return his love, is quite pathetic. swindle him of his money. Secondly, the High Court in Louth overlooked facts that might have undermined the finding that the plaintiff was at a special . He sent her love poems, gave her many gifts and paid her household bills from time time when she was at Adelaide. In setting this precedent, the court was aware of the potential for This i nfluence. as both parties had different truths On the law of unconscionable conduct, his Honour observed (at para 11): It has long been established that the jurisdiction of courts of equity to relieve against unconscionable dealing extends generally to circumstances in which (i) a party to a transaction was under a special disability in dealing with the other party to the transaction with the consequence that there was an absence of any reasonable degree of equality between them and (ii) that special disability was sufficiently evident to the other party to make it prima facie unfair or "unconscionable" that that other party procure, accept or retain the benefit of, the disadvantaged party's assent to the impugned transaction in the circumstances in which he or she procured or accepted it. as lived with Louth) - The way in which unconscionable conduct is deduced may not have been specifically 10 Report Document Comments Please sign inor registerto post comments. weaker, more vulnerable character and Louth as the powerful and dangerous manipulator In Louth v Diprose, appellant is Carol Mary Louth and respondent is Donald Louis Diprose. AND - Studocu Case 175 of australia. of Louth v Diprose. His Honour further observed that this was such an improvident transaction that: 'it is explicable only on the footing that he was so emotionally dependent upon, and influenced by, the appellant as to disregard entirely his own interests. 'special disability' is reinforced by the language of 'weak' and Justice Brennan noted that the 'jurisdiction of equity to set aside gifts procured by unconscionable conduct ordinarily arises from the concatenation of three factors: a relationship between the parties which, to the knowledge of the donee, places the donor at a special disadvantage vis-a-vis the donee; the donee's unconscientious exploitation of the donor's disadvantage; and, the consequent overbearing of the will of the donor whereby the donor is unable to make a worthwhile judgment as to what is in his or her best interest ' (para 1). [para 10] In September 1984 the Volkhardts separated; they were later divorced. In fact, she was under no pressure to vacate the house, although it had been suggested to her she could not live there forever and should consider putting her name on a housing list. ; Philippens H.M.M.G. - Argued Louth was aware of Diproses infatuation, and used this to her The improvident purchase of the house for Louth by Diprose was 'explicable only on the footing that he was so emotionally dependent upon, and influenced by, the appellant as to disregard entirely his own interests.' (Diprose v. Louth (No.1) (1990) 54 SASR 438, at p 448) King CJ described the appellant as follows (at p 444) 'I formed the impression that the (appellant) was a calculating witness who was prepared to tailor her evidence in order to advance her case.
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