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

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)