The Court refused summary judgment for possession where the defendants raised a defence of unconscionable conduct (both at general law and under s 12CB of the ASIC Act), holding that there were triable issues of fact including whether the plaintiff knew or ought to have known of the defendants' special disadvantages (limited English literacy, legal blindness, poverty, mental health issues) and whether the plaintiff unconscionably exploited those disadvantages. The Court emphasised that unconscionability claims require precise examination of particular facts and scrutiny of the parties' relationship, making summary determination on untested affidavit evidence inappropriate. The proceeding was converted from the expedited originating motion procedure (Rule 45.05) to proceed as if commenced by writ with full pleadings and a hearing.
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