CG Berbatis Holdings Pty Ltd v Australian Competition and Consumer Commission

The case before the court involved CG Berbatis Holdings Pty Ltd and other respondents (the appellants) against the Australian Competition and Consumer Commission (ACCC, the respondent). The ACCC had alleged that the appellants contravened section 51AA of the Competition and Consumer Act 2010 (Cth) by requiring the payment of key money from tenants of the shopping centre. The appellants argued that the primary judge erred in law by finding that the requirement of key money was unconscionable conduct under section 20 of the Australian Consumer Law, and by making orders for declarations and attendance at a compliance seminar.

The court had to determine whether the conduct of the appellants amounted to unconscionable conduct under the Australian Consumer Law and whether the primary judge's orders were appropriate. The primary issues involved the interpretation of section 20 of the Australian Consumer Law and the application of the concept of unconscionability to the facts of the case. The court needed to assess whether the bargain struck between the appellants and the tenants was unconscionable and whether any subsequent conduct by the appellants could be characterised as unconscionable.

The court found that the bargain struck between the appellants and the tenants was not unconscionable and that no transaction was entered into in May that could be characterised as unconscionable. The court held that the primary judge erred in law by finding that the requirement of key money was unconscionable conduct under section 20 of the Australian Consumer Law. The court concluded that equity is concerned with a remedy where a transaction has been entered into against good conscience or which is unconscientious, and no such transaction occurred in this case. Therefore, the appeal should be upheld, and the declarations and the order for the appellants to attend a compliance seminar should be set aside. The ACCC should pay the costs of the appeal.

The court also dismissed the cross-appeal by the ACCC, which sought relief in respect of conduct alleged to have contravened section 51AA in relation to other tenants. The ACCC accepted that if the circumstances concerning the Roberts did not give rise to any contravention, then the circumstances concerning the other tenants would not give rise to any contravention either. The court ordered that the proceeding be dismissed with costs, and the cross appellant pay the cross respondents' costs.