I will argue that the court should find in favour of the respondents for two reasons: that the

transaction in this case is unconscionable and that time or delay should not be a reason to bar this court from granting relief. My junior will show that rescission is not the only remedy available for unconscionable dealing. Equitable compensation is a possible remedy. 1. The trial judge was incorrect in finding that the dishonoured cheques and the overdraw approval fees were not unfair terms under Part 2b FTA. Fair Trading Act 1999 (Vic) s32 Three elements required: contrary to requirements of good faith, significant imbalance in the parties rights and obligations, detriment to the consumer. Director General of Fair Trading v First National Bank [2001] UKHL 52: i. Bingham LJ: The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer. Fair dealing requires that a supplier should not, whether deliberately or unconsciously, take advantage of the consumers necessity, indigence, lack of experience, unfamiliarity with the subject matter, or weak bargaining position. It looks to good standards of commercial morality and practice. ii. Steyn LJ: The extent to which the seller or supplier has dealt fairly and equitably with the consumer. The purpose of good faith and fair dealing is to enforce community standards of fairness and reasonableness in commercial transactions. iii. Millett LJ There is no doubt that the reason Samuel agreed to work on the farm was because of his parents insistence. 2. My second submission is that the trial judge was correct in finding that the doctrine of unconscionable dealing applies despite the rendering of work over a long period of time. The equitable defence or doctrine of laches is what prevents courts from granting relief for transactions spanning over a long time on the basis that the party seeking relief has slept on its rights. Selborne LC, Lindsay Petroleum Company v Hurd (1873) LR 5 PC 221: The doctrine of laches is not an arbitrary or technical doctrine. Requires conduct equivalent to a waiver, or if a remedy afterwards asserted would place the other party in an unreasonable situation. i. Impossible for Samuel to waiver since he did not know of the right. ii. A remedy would not place the appellants in a worse position than if the right had been exercised at the time. Alternatively, laches should not be enforced in this case because of Samuels unawareness of his rights. i. Stafford v Stafford (1857) 1 De G & J 193: Generally, when the facts are known from which a right arises, the right is presumed to be known.

ii. Harman LJ, Holder v Holder [1968] Ch 353: There is no hard and fast rule that ignorance of a legal right is a bar. The whole of the circumstances must be looked at. iii. Williams J, Baburin v Baburin (No 2) [1991] 2 Qd R 240: The degree of diligence which might reasonably be required and the degree of change which has occurred should determine whether the balance of justice or injustice is in favour of granting the remedy or withholding it. This was endorsed by Barwick CJ in BM Auto sales Pty Ltd v Budget Rent A Car System Pty Ltd (1976) 51 ALJR 254. - Samuel was a child at the time contract was formed. It would be unreasonable to expect that he be aware of his rights. - Samuel acted immediately upon learning of his rights. He did not intend for a delay. - There is no change in position suffered by the appellants.