An Attempt at Codifying the Equitable Doctrine of Unconscionable Dealings

Abstract

This article is written in honour and in memory of my dear colleague the late Professor Denis Ong — a talented, hard-working, and deservedly leading, authority on equity. Here, I seek to articulate a potential ‘codification’ of the equitable doctrine of unconscionable dealings. While I have been advocating a reform-oriented codification of Australia’s contract law, including the equitable doctrine of unconscionable dealings, for almost 15 years, the ambition of this article is limited to a restatement of lex lata. On my path to that goal, I start by providing a brief overview of the origins of the equitable doctrine of unconscionable dealings. I then proceed to discuss Professor Ong’s view of the equitable doctrine of unconscionable dealings before I engage with the modern key cases on the topic. Having outlined my proposed codification of the equitable doctrine of unconscionability, I then say a few words about the relationship between the equitable doctrine of unconscionability and unconscionability under the Australian Consumer Law (ACL), before concluding the article with some final observations.