(iii) Significant Imbalance in the Substance of the Transaction

Fault of the defendant is not sufficient to characterize the transaction as unconscionable; it must also be overreaching and oppressive in that there is a significant imbalance in the substance of the transaction to the disadvantage of the weaker party,196 such as where the transaction is at a gross undervalue. A transaction will not be oppressive simply because it turns out to a party’s disadvantage,197 or that, in the eyes of the court, it was unreasonable.198 Whether the transaction was oppressive is to be determined on the facts at the time the transaction was entered into and from the perspective of the disadvantaged party.199

(iv) Whether the Transaction Was Fair, Just, and Reasonable

Once the claimant has shown that he or she was suffering from a special disability or disadvantage, that the defendant’s conduct was unconscionable, and that that there was a significant imbalance in the substance of the transaction, the transaction will be set aside, unless the defendant can show that the transaction was fair, just, and reasonable.200 The defendant will be able to establish this by showing, for example, that the claimant had obtained independent legal advice, since this would place the parties on equal terms.201 But the obtaining of such advice will only be relevant if its effect really is to place the parties on equal terms. So, for example, in Boustany v Piggott202 a renegotiated lease was set aside by reason of the defendant’s unconscionable conduct, even though the disadvantages of the transaction had been forcibly pointed out to the claimant by a barrister, because the defendant was present and was taking advantage of the claimant when the

advice was given.203

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