4. A branch manager of WR has received a request from a corporate customer, Acme Pty Ltd, which wishes to increase its overdraft
. The bank is prepared to do so provided the company provides appropriate security in view of the fact that the current overdraft has exceeded its limit. Acme’s directors, John and Wisteria, suggest that Wisteria’s parents might be prepared to mortgage their home to the bank. Required:
The manager seeks your legal advice about the pitfalls of accepting security from such people, and what precautions the bank would need to take if it decided to do so. ( See Amadio’s case).
The advice that should be provided to the bank manager about the pitfalls of accepting security from Wisteria's parents, including the necessary precautions the bank should take, include:
The bank should ensure that it provides adequate explanations to Wisteria's parents about the nature of the overdraft and the financial state of Acme Pty Ltd.
The bank should further explain the limitations of the guarantee involved with respect to the mortgage of the home.
The bank should discover if Wisteria's parents' home is under another mortgage.
The bank should take precautions that it does not fall into the pits that the classical case of Commercial Bank of Australia v. Amadio by not indulging itself in unconscionable conduct with the parents of Wisteria.
<h3>What is unconscionable conduct?</h3>
Unconscionable conduct is harsh conduct that goes against good conscience.
Unconscionable conduct is usually described as oppressive without considering its unfairness.
Thus, in seeking Wisteria's parents to mortgage their home to the bank, the bank manager should be careful not to mingle its business dealings with persons who lack the capacity to enter into a valid guarantee for Acme Pty Ltd.
