By Joanna Bloore
The forthcoming case of Thorne v Kennedy will provide the High Court with a rare opportunity to consider and clarify the nature of the doctrines of undue influence, duress, and unconscionable dealing, and the relationships between them. It is increasingly argued that undue influence, like duress, is a vitiating factor within the law of unjust enrichment. By contrast, unconscionable dealing is generally accepted to constitute an equitable wrong, operating independently of the law of unjust enrichment. The three doctrines often suggest themselves from the same set of facts, and the appearance of the language of ‘unconscionability’ in unjust enrichment cases has introduced further confusion. There are, however, important distinctions between the three forms of claim. The body of this post examines the doctrines of duress, undue influence, and unconscionable dealing. The nature of each doctrine, and the relationships between them, are explored through their potential application to the facts of Thorne v Kennedy.
The dispute is set to be heard in the High Court on appeal from the Full Family Court in Kennedy v Thorne  FamCAFC 189. Mr Kennedy was an Australian property developer with assets valued at $18 million. Ms Thorne lived overseas, and occupied a position of relative disadvantage (with poor English skills, relative poverty, and fragile immigration status). The two met through an online dating site. After meeting in person, they decided to get married and Ms Thorne accompanied Mr Kennedy back to Australia on a tourist visa. About a week before the wedding, and after Ms Thorne’s family had travelled from overseas to attend, Mr Kennedy insisted on the signing of a prenuptial agreement as a condition of their marriage. His aim was to preserve the economic wellbeing of his children. Ms Thorne received independent legal advice that the agreement was ‘no good’, but she signed it nonetheless. Four years later, the parties divorced, and Ms Thorne sought to set aside the prenuptial agreement. Continue reading