Banks, unconscionability and economic duress - a small step towards deregulation?

A bank extended credit to a company, taking security as it proceeded. The circumstances were unexceptionable. Nonetheless, the trial judge found that the bank had engaged in unconscionable conduct within the meaning of the general law, and had exercised economic duress. These findings were reversed on appeal. This article examines this decision – Australia and New Zealand Banking Group v Karam (2005) 64 NSWLR 149; [2006] ATPR 42-089 – and canvasses the scope of these doctrines, and examines a core issue: the extent to which economic pressure can ground a remedy in reliance upon these doctrines. This decision and the antecedent decision of the High Court in Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (2003) 214 CLR 51 clarify the obligations on banks, commercial lessors and other service providers conventionally considered to have market power when dealing with small businesses and individuals. The decision in ANZ v Karam is also directly relevant to the interpretation of the unconscionable conduct provisions in the Trade Practices Act 1974 (Cth) and the Australian Securities and Investments Commission Act 2001 (Cth) which import the general law doctrine of unconscionability.