Australian Competition & Consumer Commission v Leelee Pty Ltd

The applicant submits that the factors referred to above are relevant, in the light of those provisions. 96 For the purposes of this application, it is not appropriate to make findings of fact. I take the pleadings as containing the relevant facts. On the assumption that the allegations are confined to conduct after 1 July 1998, I do not think that the applicant's claims are so untenable that the claim should be struck out. In expressing my conclusion in that way, I am simply applying the test laid down for resolving such an application as the present: General Steel Industries (above). I have no view as to whether or not the applicant will be able to prove all or any of the facts it alleges. However, accepting that the allegations will be established at the hearing, including as to the respondents' state of mind, I consider that it is arguable by the applicant that the respondents' conduct was in connection with the supply or possible supply of services to the Choongs. In the course of submissions, counsel for the applicant indicated that the applicant may wish to add to the statement of claim to indicate an alternative way in which it is said that the respondents' conduct is in connection with the supply or possible supply of services. I have not had regard to that prospect in ruling upon this particular contention, but the leave to amend the statement of claim will enable any such additional facts or matters to be pleaded. (c) Can the conduct alleged be unconscionable? 97 The respondents finally contend, in relation to these paragraphs of the statement of claim, that the refusal of the respondents to deal with the Choongs in relation to any potential new tenants, or the refusal "to consider" an underlease to a prospective tenant of the stall so that the Choongs might have the opportunity to sell to that tenant their plant and equipment, cannot amount to unconscionable conduct in connection with the supply of services in any event. In effect, it is contended that the respondents cannot contravene s 51AC(1) simply by insisting on their right of vacant possession at the expiration of the term granted by the underlease. 98 Counsel for the respondents referred to Coal Cliff Collieries Pty Ltd v Sijehama Pty Ltd (1991) 24 NSWLR 1 for the proposition that heads of agreement to negotiate in good faith may be enforceable. It was put that, inferentially from that decision, in the absence of any such agreement there can be no obligation to negotiate. Counsel also referred to Official Trustee in Bankruptcy v Tooheys Ltd (1993) 29 NSWLR 641 as providing an illustration of circumstances where it would be unconscionable for a landlord simply to allow a tenancy to expire without the tenant having an opportunity to transfer its business and assets to a new tenant. In that case, the conduct relied upon included specific representations by the landlord as to the transferability of the tenant's business and assets at the expiration of the term. 99 That general submission may be correct. However, in my view, those submissions are more appropriately considered when the admissible evidence has been received, and in the light of the facts as found. I do not think those authorities so conclusively establish the outer boundaries of the concept of unconscionable conduct for the purposes of s 51AC of the Act as to lead to the view that the applicant presently has no real prospect of success on its application as expressed in the statement of claim. The views expressed about the breadth of the concept encompassed within the expression "unconscionable conduct" by Beaumont J in Cameron v Qantas Airways Ltd (1995) 55 FCR 147 at 179-181 and by Branson J (with whom Spender J agreed on this point, and Olney J agreed) in Pritchard v Racecage Pty Ltd (1997) 142 ALR 527 at 543-546 are, in my view, sufficient reason not to accede to the proposition of the respondents at this stage of the proceedings. The fact that the respondents may be exercising contractual rights is not necessarily a circumstance which precludes a finding of unconscionable conduct in the present circumstances. It may do so, but in my view that proposition of the respondents is not so clearly right that the applicants should be deprived of the opportunity of taking the matter to trial if it is not otherwise resolved. There may also be other facts proved at trial which might be relevant to whether the respondents' conduct is unconscionable in any event, including (if it be the case) that the respondents have some sound commercial reason for not releasing the stall. It is preferable that the respondents' arguments be addressed in the light of the facts as they are found to be. Should the statement of claim be struck out? 100 I have referred in some detail to the allegations concerning the rental issue, the food range issue, and the food price issue. In the light of my decision about the way in which s 51AC(6)(b) operates, it is clear that many of the facts alleged should not be allowed to stand. In respect of each of those issues, allegations are made of conduct prior to 1 July 1998 which is said to be unconscionable. Allegations are also made of conduct prior to 1 July 1998 which is said to be part of the transaction involving the conduct after 1 July 1998 said to be unconscionable. 101 Again, I do not think it is sensible or feasible simply to strike out parts of the statement of claim. The applicant, and the respondents, may be left with a confusing document and one which is difficult to follow. In the light of those reasons, the applicant may wish to review the way in which the matters alleged are pleaded, or to omit parts of its allegation. Unless some oral direction was given after 1 July 1998 on the topic, it may limit the allegations it makes concerning the food price issue to some degree. It may wish to indicate the relevant "circumstances", as that term is used in s 51AC(6)(b), in some different way. I am not to be taken as indicating that the applicant should do any of those things, or as indicating how the applicant should plead its case. Subject to the statement of claim reflecting the particular rulings contained in these reasons for judgment, that is a matter for the applicant. However, the opportunity given to the applicant to consider such matters in the light of the submissions put by the respondents is a further reason why I consider that the appropriate order is to strike out the statement of claim. Order 102 I strike out the statement of claim. I will give to the applicant leave to file and serve an amended statement of claim which should reflect the rulings contained in these reasons. I will hear counsel as to the time to be allowed for the applicant to do so. I certify that the preceding one hundred and two (102) numbered paragraphs are a true copy of the Reasons for Decision herein of the Honourable Justice Mansfield.