Good Living Company Pty Ltd v Kingsmede Pty Ltd

In Good Living Company Pty Ltd v Kingsmede Pty Ltd, the appellants, Good Living Company Pty Ltd and Kimana Pty Ltd, appealed against the decision of the primary judge who dismissed their claims of unconscionable conduct against the respondents, Kingsmede Pty Ltd and Pamiers Pty Ltd. The primary judge had ruled that the respondents' actions in calling on and collecting the money the subject of an unconditional bank guarantee did not constitute unconscionable conduct under ss 20 and 21 of the Australian Consumer Law (the ACL) in Schedule 2 to the Competition and Consumer Act 2010 (Cth). The appellants argued that the primary judge erred in not finding unconscionable conduct, in the analysis of s 20 and s 21, and in not considering their pleaded case, and that the primary judge failed to find a special disadvantage or entitlement to relief. The appeal was dismissed.

The legal issues before the court were whether the respondents' actions in calling on and collecting the money the subject of the bank guarantee constituted unconscionable conduct in contravention of ss 20 and 21 of the ACL and whether the primary judge erred in his analysis of these sections, in not finding a special disadvantage or entitlement to relief. The court had to determine whether the respondents' actions were unconscionable under the principles of equity and statutory unconscionability.

The court found that the primary judge had correctly applied the principles governing unconscionability and had not erred in his analysis of ss 20 and 21 of the ACL. The court held that the principles informing s 20 and the unwritten law, and those informing s 21 and the concept of statutory unconscionability are related but distinct and different. The court further found that the fact that the respondents understood that the Commonwealth Bank of Australia would not be paying out the Chophouse guarantee from its own funds did not take the case for TGLC and Kimana anywhere. The court dismissed the appeal and ordered the appellants to pay the respondents' costs of the appeal, as agreed or taxed.