First thoughts on RBS v Etridge (Joshua Getzler, 17 Oct 2001)

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Sender:	Joshua Getzler
Date:	Wed, 17 Oct 2001 11:03:23 +0100
Re:	First thoughts on RBS v Etridge

Interesting that National Bank of Australia v Garcia is not discussed in the new Etridge, even though the HCA there attacks the O'Brien test and pushes Dixon J's problematic formulation in Yerkey v Jones in its stead. It is a shame that Yerkey is the fulcrum of this debate, because Dixon J's undue influence doctrine is much better stated in Johnson v Buttress (1936) 56 CLR at 134-5. No mention there of manifest disadvantage beyond the entering of the transaction itself. Would it not be simpler to reduce the manifest disadvantage test to nothing thing more than a factual indicium of possible influence infecting the consent, and still allow presumed undue influence to operate in its absence?

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