(h) He knew the terms of the lease and was, I infer, aware of the payment situation.
53 It is true that Peters had signed the guarantee of the lease and was therefore potentially at risk if Storage Plus was placed in administration and no alternative lessee could be found, but his entry into the guarantee of the lease had occurred four years earlier and he makes no complaint about having done so. I do not regard the fact that Peters had signed the guarantee as a factor which placed him under a special disadvantage within the meaning of Amadio and reiterated in Karam. He was able to make his own judgment as to whether he had more to gain by entering into the agreement with the prospect of on-sale at a profit (or even at no profit) or not, and facing the prospect of having to meet a liability under the guarantee beyond that for which he was already liable (according to Mr Woodgate's advice there was already $410,000 of rent outstanding). Further, he had lawyers acting for him during the negotiations and he had access to accounting advice had he wanted it.
54 It follows that on the basis of Karam, Peters cannot succeed on his claim even if the threats were made.
55 There is a further reason why, in my view, Peters' claim ought be rejected. In my view, the Company was not acting unconscientiously in doing what it was legally entitled to do. It was, as Mr Harris conceded, entitled to put Storage Plus into administration: see T322.39-43. It probably had little choice but to do so if Peters did not take up the shares given the advice the Company had received about Storage Plus's parlous financial position (which it believed, on Ooi's evidence at T241.18, was a consequence at least in part of the misconduct of Peters), and see Exhibit "B", a copy of a fax sent by Mr Woodgate to Ooi. I cannot see any reason why the Company was not entitled to indicate in express terms that unless it received from Peters a price for the shares satisfactory to it, it would place Storage Plus into administration. Ooi, having bona fide formed the view that Peters had been siphoning off money from Storage Plus into another business with which Peters was connected, was entitled to ask whatever price for the shares in Storage Plus he wanted. Ooi, having provided the bond, was entitled to offer the shares on behalf of the Company to Peters or to accept an offer from Peters in order to avoid the risk of having to lose the bond. In Wardley Australia Ltd v McPharlin (1984) 3 BPR 9500 at 9502, it was held that "it is not economic duress to threaten to exercise neither more nor less than the existing legal rights of a party" even if that party was driving a hard bargain: per Rogers J at 9502. In Re Hooper & Grass' Contract [1949] VLR 269 at 272 Fullagar J drew the distinction between threatening to exercise a legal right in order to extract a promise and threatening to withhold that to which the other party was legally entitled.
56 The question of causation was addressed by both parties. The Company submitted that the material to which I have already referred explained why Peters wanted to enter into the Agreement. The Company submits that Peters executed the Agreement because he saw it as an ideal opportunity to acquire equity in a business that he had always wanted (Peters' XX T111.6-46, 112.26-53 and Mrs Peters' XX T157.36-57), a business which he had built, which he considered, as at January 2003 was "getting better and the type of business as grass grows improves" (Peters' XX T34-37), which Mrs Peters as at January 2003 had formed the view had "rounded the corner … was on a good financial path for future development … things were looking rosy" (Mrs Peters' XX T154.16-23), and which Peters considered to have a value of some $4 million which he was acquiring for only $2 million. In effect, says the Company, it was for Peters with his view of matters a commercial opportunity that he could not afford to pass up. I think there is ample evidence that even absent the alleged threat it is likely that Peters would have proceeded with the purchase. Mr Harris argued however that on the authority of Barton v Armstrong, even if I were to conclude that even absent any economic duress Peters would have signed the agreement, that fact would not matter - provided the threat was one of the factors that led to the agreement having been entered into.
57 There may be some room for doubt as to whether the approach taken in Barton, which was a case of common law duress, is applicable to the second category of case identified in Amadio, but accepting that it is, I do not think that it would assist Peters. First the threat, assuming it to have been made, was to do the very thing that Peters would have understood would occur even if it had not been made - that is he must have appreciated that if he did not purchase the shares, Storage Plus would be placed in administration. The enunciation of the threat therefore was of little moment. In Barton, the threat was of such a serious nature that the Court was prepared to accept in the absence of contrary evidence that it had continued in effect. The question of special disadvantage, unconscionable conduct and causation are very much linked. Here there is evidence that Peters had a number of reasons for wishing to buy the shares which are of a kind that undermine the proposition that the threat is what motivated his purchase or at least provided any motivation beyond what he ought reasonably to have appreciated.