The High Court has given detailed guidance as to when bankers advising commercial investors to enter into transactions which have since gone sour may be found to have "crossed the line" by, for example, exerting undue influence on the investor which results in an "unconscionable bargain".

The High Court emphasised that for banks to be found liable there needs to be an element of serious impropriety. It is clear from this decision that, in general, the courts will seek to uphold freedom of contract and commercial certainty unless it is demonstrated that it would not be fair to do so. Evidence about the investor's actual understanding of the transactions it was entering into and the internal processes the investor went through when entering into transactions, will be key factors in determining whether or not the contract in question should be set aside. Though Goldman Sachs had offered extensive and lavish corporate hospitality to LIA personnel and employed an LIA director's family member as an intern at the bank, the Court concluded that the inducements did not give rise to undue influence.

To find that a transaction amounts to an unconscionable bargain, there must be the following:

  • some impropriety in the conduct of the stronger party and the terms of the transaction which "shocks the conscience of the court";
  • one party has been at a serious disadvantage to the other;
  • the weakness of one party has been exploited by the other in a morally culpable manner;
  • the resulting transaction must have been overreaching or oppressive.