CATCHWORDS Equity - Mortgage and guarantee - Right to set aside - Unusual transactions between bank...

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CATCHWORDS Equity - Mortgage and guarantee - Right to set aside - Unusual transactions between bank and customer - Bank's failure to disclose to mortgagor guarantor - Misrepresentation. Guarantee - Guarantor under disability - Dealing with bank - Bank knowing of disability - Unconscionable bargain - Onus of proof - Whether transaction should be set aside unconditionally. HEARING Adelaide, 1982, August 17, 18; Canberra, 1983, May 12. 12:5:1983 APPEAL from the Supreme Court of South Australia. DECISION 1983, May 12. The following written judgments were delivered:- GIBBS C.J. This is an appealfrom the FullCourt of the Supreme Court of South Australia which allowed an appealfrom the judgment of the primary judge (Wells J.) and ordered that a memorandum of mortgage executed by the plaintiffs (the present respondents) on or about 25 March 1977 in favour of the appellant bank be set aside, and made certain ancillary orders. (at p XXXXXXXXXXAt the time when the memorandum of mortgage was executed, the respondents, Mr. and Mrs. Amadio, were aged 76 and 71 respectively. They had both been born in Italy but had lived in Australia for over forty years. Neither had received much formal education. Mr. Amadio had a limited grasp of written English but could
	
Document Preview: 5/22/2014 Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; XXXXXXXXXXCLR XXXXXXXXXXMay 1983)
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Commercial Bank of Australia Ltd v Amadio [1983] HCA 14;
 XXXXXXXXXXCLR XXXXXXXXXXMay 1983)
HIGH COURT OF AUSTRALIA
COMMERCIAL BANK OF AUSTRALIA LTD. v. AMADIO [1983] HCA 14; XXXXXXXXXXCLR 447
Equity - Guarantee
High Court of Australia
Gibbs C.J.(1), Mason(2), Wilson(3), Deane(4) and Dawson(5) JJ.
CATCHWORDS
Equity - Mortgage and guarantee - Right to set aside - Unusual transactions between bank and customer
- Bank's failure to disclose to mortgagor guarantor - Misrepresentation.
Guarantee - Guarantor under disability - Dealing with bank - Bank knowing of disability -
Unconscionable bargain - Onus of proof - Whether transaction should be set aside unconditionally.
HEARING
Adelaide, 1982, August 17, 18;
Canberra, 1983, May 12. 12:5:1983
APPEAL from the Supreme Court of South Australia.
DECISION
1983, May 12. The following written judgments were delivered: -
GIBBS C.J. This is an appeal from the Full Court of the Supreme Court of South Australia which
allowed an appeal from the judgment of the primary judge (Wells J.) and ordered that a memorandum of
mortgage executed by the plaintiffs (the present respondents) on or about 25 March 1977 in favour of the
appellant bank be set aside, and made certain ancillary orders. (at p450)
2. At the time when the memorandum of mortgage was executed, the respondents, Mr. and Mrs.
Amadio, were aged 76 and 71 respectively. They had both been born in Italy but had lived in Australia
for over forty years. Neither had received much formal education. Mr. Amadio had a limited grasp of
written English but could speak it reasonably well; Mrs. Amadio had some understanding of spoken
English but gave evidence through...

David · Accepted Answer

Student Name 
Course Name 
University Name 
20-May-2017
Mr. and Mrs. Amadio challenged the mortgage guarantee that they signed under the facts that 
they were not aware of the business condition and financial situation of Vincenzo. The three 
main factors which led them to challenge the whole situation are not awareness of financial 
condition of the business; bank didn’t made them aware of the business situation and current 
outstanding of their son; the age factor under which they were considered. One other factor 
which supported Mr. and Mrs. Amadio was the fact that they were very old and neither of them 
have received any kind of formal education. Work with all stakeholders responsible for identity 
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The Appeal court reversed the decision of trial court in this case. The main factors under which 
the same was reversed was the ignorance of some major consideration by the trial court. As per 
the judgment of appeal court banks didn’t did anything to make Mr. and Mrs. Amadio aware of 
the business and loan situation before signing the mortgage. Some facts like business situation; 
validation of statements presented by Vincenzo during different times of banking overdraft limit 
breach; bank not evaluating the business situation of the business which was owned by Vincenzo 
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CATCHWORDS Equity - Mortgage and guarantee - Right to set aside - Unusual transactions between bank and customer - Bank's failure to disclose to mortgagor guarantor - Misrepresentation. Guarantee -...

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