60 ACCC also alleged that conduct by the Owners in relation to Banlon and the Ternents contravened s 51AA of the Act. For reasons that will become apparent, it is not necessary to particularise those allegations.
61 The primary judge said that the focus of the case was on that class of unconscionable conduct, which equity would remedy, that involves the unconscientious exploitation by one person of the serious disadvantage of another to secure a disposition of property or the assumption of contractual or other obligations by the weaker party. His Honour regarded the release by one party of an obligation that another may have to it as falling within the same genus as a disposition of property. That is to say, the question was whether the owners unconscientiously exploited a serious disadvantage of the Roberts, Banlon or the Ternents to secure a disposition of property in the form of the release of their claims in the Commercial Tribunal.
62 His Honour accepted that circumstances of inequality do not of themselves necessarily call for the intervention of equity. His Honour accepted that a party may take advantage of the disadvantage of another without necessarily acting unfairly or so unfairly, having regard to the nature of the disadvantage, that equity would intervene. Where the disadvantage or the inequality is great it may take less to discern unconscientious exploitation of it than in a situation involving less disadvantage or inequality.
63 His Honour also accepted that, in the case of an owner of land who has leased that land to another and is asked to grant a new lease upon the expiry of the first lease, the pre-existing relationship of tenant and landlord by itself will not give rise to a situation of inequality or disadvantage which would attract the interest of equity. His Honour emphasised that there is no equitable obligation on a landlord to renew a lease simply because of the vulnerability of the tenant whose lease is expiring.
64 His Honour observed that whether there is inequality, and the extent of it, in such circumstances, will also depend upon the size of the tenant, the quantum and reliability of the tenant's rental payments, the extent to which the presence of that tenant will attract others and, in the context of renegotiation, the negotiating resources and advice available to the tenant. His Honour considered that a tenant operating a small business with a limited opportunity to sell the business may be in a particularly vulnerable position and therefore in a position approaching the level of special disadvantage or inequality which a landlord may not unfairly exploit.
65 His Honour accepted that the word "special" to describe the class of disadvantage or disability which will attract the application of the doctrines of equity indicates that the requisite disadvantage will not necessarily be found in the normal run of bargaining inequality between large landlords and small tenants. However, his Honour was of the view that the circumstances in which a tenant operating a business under a lease may effectively lose the value of that business upon expiry of the lease place the tenant at a special disadvantage in dealing with the owner. His Honour accepted that such circumstances did not import any obligation on an owner to renew a lease that had expired but considered that unfair exploitation of a disadvantage amounting to unconscionable conduct may occur when an owner uses its bargaining power to extract a concession from the tenant that is commercially irrelevant to the terms and conditions of any proposed new lease.
66 His Honour concluded that for the Owners to insist upon the Roberts abandoning their rights to proceed with bona fide litigation in relation to their rights under the existing lease was to engage in unconscionable conduct. His Honour concluded that it was unconscionable conduct on the part of the Owners, on the two occasions in May 1996 and November 1996, to insist upon the inclusion of a release as a condition of the grant of a new lease and assignment thereof to Mr Holland. His Honour characterised the way in which the Owners acted as "a grossly unfair exploitation of the particular vulnerability of the Roberts in relation to the sale of their business". His Honour concluded, therefore, that the Owners had acted in contravention of s 51AA and that their principals were knowingly involved in that contravention.
67 Accordingly, his Honour made the following orders:
"1. It is hereby declared that in May 1996 and October 1996 [the Owners], engaged in conduct that was unconscionable within the meaning of the unwritten law from time to time of the States and Territories, in contravention of s.51AA of the Trade Practices Act 1974, in that the said Respondents required, as a condition of the grant of a new lease to Margaret Joan Roberts and James Arthur Roberts, as Trustees of the Roberts Family Trust, trading as Leeming Fish Supply at Shop 14, Farrington Fayre Shopping Centre, that the Roberts do release [the Owners] from various claims arising under their existing lease.
2. It is hereby declared that in May 1996 and October 1996 [Messrs Atzemis and Berbatis and Ms Heijne] were directly or indirectly knowingly concerned in or party to conduct in trade or commerce that was unconscionable within the meaning of the unwritten law from time to time of the States and Territories, in contravention of s.51AA of the Trade Practices Act 1974, in that the said Respondents required, as a condition of the grant of a new lease to Margaret Joan Roberts and James Arthur Roberts, as Trustees of the Roberts Family Trust, trading as Leeming Fish Supply at Shop 14, Farrington Fayre Shopping Centre, that the Roberts do release [the Owners] from various claims arising under their existing lease.
3. It is hereby declared that [Mr Sullivan's company], in October 1996 and [Mr Sullivan] in May 1996 and October 1996, acting as agent for or on behalf of the owners of Farrington Fayre, were directly or indirectly knowingly concerned in or party to conduct in trade or commerce that was unconscionable with the meaning of the unwritten law, from time to time of the States and Territories, in contravention of s.51AA of the Trade Practices Act 1974, in requiring, as a condition of the grant of a new lease to Margaret John Roberts and James Arthur Roberts, as Trustees of the Roberts Family Trust, trading as Leeming Fish Supply at Shop 14, Farrington Fayre Shopping Centre, that the Roberts do release the First to Fourth Respondents from various claims arising under their existing lease."
68 His Honour also ordered that, within four months, Messrs Atzemis, Berbatis and Sullivan and Ms Heijne, at their own cost, arrange and attend a trade practices compliance seminar conducted by a trade practices law specialist in the terms of an outline annexed to the order. The seminar was to address the unconscionable conduct provisions of the Act and, in particular, section 51AA. His Honour ordered the respondents to the proceeding to pay one third of ACCC's costs of the proceeding.
69 However, his Honour concluded that the conduct alleged in relation to Banlon and the Ternents did not contravene s 51AA. For reasons that will be apparent, it is not necessary to record his Honours reasons for that conclusion.