Good Living Company Pty Ltd as trustee for the Warren Duncan Trust No 3 v Kingsmede Pty Ltd

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 16 March 2021
• Neutral Citation: [2021] FCAFC 33
• Date: 16 March 2021

Federal Court of Australia

Good Living Company Pty Ltd as trustee for the Warren Duncan Trust No 3 v Kingsmede Pty Ltd [2021] FCAFC 33

Appeal from:	The Good Living Company Pty Limited ATF the Warren Duncan Trust No 3 v Kingsmede Pty Ltd [2019] FCA 2170
File number:	NSD 120 of 2020
Judgment of:	ALLSOP CJ, BESANKO AND JAGOT JJ
Date of judgment:	16 March 2021
Catchwords:	CONSUMER LAW – appeal – where appellants provided security for bank guarantee required by lease between a related company and the respondents – where respondents called on bank guarantee prior to entry into deed of settlement and release – where respondents were unaware that appellants had provided security – where respondents received and retained moneys provided after bank guarantee was called – whether the calling on and collecting of money the subject of the bank guarantee constituted unconscionable conduct in contravention of s 20 and s 21 of Sch 2 to the Competition and Consumer Act 2010 (Cth) – whether primary judge erred in not finding unconscionable conduct – whether primary judge erred in analysis of s 20 and s 21 – whether primary judge failed to consider pleaded case – whether the primary judge erred in not finding special disadvantage – whether the primary judge erred by not finding entitlement to relief – appeal dismissed
Legislation:	Australian Securities and Investments Commission Act 2001 (Cth) s 12CB Competition and Consumer Act 2010 (Cth) Sch 2, ss 20, 21, 22, 236, 237 Trade Practices Act 1974 (Cth) s 51AC ; Explanatory Memorandum, Competition and Consumer Legislation Amendment Bill 2010 (Cth) Explanatory Memorandum, Trade Practices Amendment (Australian Consumer Law) Bill (No 2) 2010 (Cth)
Cases cited:	Australasian Conference Association Ltd v Mainline Constructions Pty Ltd [1978] HCA 45; 141 CLR 335 Australian Competition and Consumer Commission v Allphones Retail Pty Ltd (No 2) [2009] FCA 17; 253 ALR 324 Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd [2003] HCA 18; 214 CLR 51 Australian Competition and Consumer Commission v Lux Distributors Pty Ltd [2013] FCAFC 90; ATPR ¶42-447 Australian Competition and Consumer Commission v Medibank Private Ltd [2018] FCAFC 235; 267 FCR 544 Australian Competition and Consumer Commission v Samton Holdings Pty Ltd [2002] FCA 62; 117 FCR 301 Australian Competition and Consumer Commission v South East Melbourne Cleaning Pty Ltd (In Liq) [2015] FCA 25 Australian Securities and Investments Commission v Kobelt [2019] HCA 18; 267 CLR 1 Australian Securities and Investments Commission v National Exchange Pty Ltd [2005] FCAFC 226; 148 FCR 132 Bluescope Steel (AIS) Pty Ltd v Australian Workers’ Union [2019] FCAFC 84; 270 FCR 359 Boral Formwork v Action Makers [2003] NSWSC 713 Cargill International SA v Bangladesh Sugar and Food Industries Corp [1996] 4 All ER 563 Cargill International SA v Bangladesh Sugar and Food Industries Corp [1998] 1 WLR 461 Chidiac v Maatouk [2010] NSWSC 386 CIT Credit Pty Ltd v Keable [2006] NSWCA 130 Clough Engineering Limited v Oil and Natural Gas Corporation Limited [2008] FCAFC 136; 249 ALR 458 Colin R Price & Associates Pty Ltd v Four Oaks Pty Ltd [2017] FCAFC 75; 251 FCR 404 Commercial Bank of Australia Limited v Amadio [1983] HCA 14; 151 CLR 447 Commonwealth Bank of Australia v Kojic [2016] FCAFC 186; 249 FCR 421 Jenyns v Public Curator (Qld) [1953] HCA 2; 90 CLR 113 Kakavas v Crown Melbourne Limited [2013] HCA 25; 250 CLR 392 Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia [2002] FCAFC 197; 122 FCR 110 O’Sullivan v National Australia Bank Ltd [1998] NSWSC 303 Ottoway Engineering Pty Ltd v Westpac Banking Corporation (No 3) [2017] FCA 1500; 123 ACSR 549 Paciocco v Australia and New Zealand Banking Group Limited [2015] FCAFC 50; 236 FCR 199 QNI Resources Pty Ltd v Sino Iron Pty Ltd [2016] QSC 62; [2017] 1 Qd R 167 Secure Funding Pty Ltd v Stark [2015] NSWSC 223; 106 ACSR 173 Silvestro v S R Factors Pty Ltd [2010] NSWCA 74 Stern v McArthur [1988] HCA 51; 165 CLR 489 Simic v New South Wales Land and Housing Corporation [2016] HCA 47; 91 ALJR 108 SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; 150 FCR 214 Tameeka Group Pty Ltd v Landan Pty Ltd (No 3) [2016] FCA 733 The Juliana (1822) 2 Dods 504 at 522; 165 ER 1560 Thorne v Kennedy [2017] HCA 49; 263 CLR 85 Tonto Home Loans Australia Pty Ltd v Tavares [2011] NSWCA 389 Unique International College Pty Ltd v Australian Competition and Consumer Commission [2018] FCAFC 155; 266 FCR 631 Wong v Huisman [2010] QSC 192 Wood Hall Ltd v Pipeline Authority [1979] HCA 21; 141 CLR 443
Division:
Registry:
National Practice Area:
Sub-area:	Regulator and Consumer Protection
Number of paragraphs:	125
Date of hearing:	5 November 2020
Counsel for the Appellants:	Mr V Bedrossian SC
Solicitor for the Appellants:	Keypoint Law
Counsel for the Respondents:	Mr N J Beaumont SC with Mr T Maltz
Solicitor for the Respondents:	Herman Legal

Table of Corrections
23 September 2021	In paragraph 62, the word “Keystone” has been substituted for the word “Kingsmede” so that the last sentence in paragraph 62 reads: “When he delivered the letter Mr Mattiussi said to Mr Somerton that the directors of the Keystone companies wanted the Chophouse guarantee back and Mr Somerton said it had already been claimed and the respondents would not be returning it: PJ [107].”

ORDERS

		NSD 120 of 2020
BETWEEN:	THE GOOD LIVING COMPANY PTY LTD ACN 001 974 705 ATF THE WARREN DUNCAN TRUST NO 3 First Appellant ; KIMANA PTY LTD ACN 002 731 599 Second Appellant
AND:	KINGSMEDE PTY LTD ACN 054 526 635 First Respondent ; PAMIERS PTY LTD ACN 010 650 236 Second Respondent

order made by:	ALLSOP CJ, BESANKO AND JAGOT JJ
DATE OF ORDER:	16 MARCH 2021

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellants pay the respondents’ costs of the appeal, as agreed or taxed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ALLSOP CJ:

1. I have read the reasons to be published of Jagot J. I agree with the orders proposed by her Honour. Subject to that which follows, I agree with her Honour’s reasons. Subject to that which appears at [13], I also agree with the reasons of Besanko J.

Some introductory considerations

2. It is appropriate to express a number of matters by way of introduction. First, whether a...