COMMERCE COMMISSION v BARFOOT & THOMPSON LTD [2017] NZHC 218

COMMERCE COMMISSION v BARFOOT & THOMPSON LTD [2017] NZHC 218

The court was satisfied on the material provided that a further deferral of the penalty payable by L J Hooker was justified and that, had the variation been sought earlier, the court would have ordered payment of the $2,475,000 penalty in 12 equal monthly instalments beginning 28 February 2017 with interest accruing from that date at the rate prescribed by the Judicature Act 1908; accordingly the earlier order was varied to those terms.

Citation
[2017] NZHC 218
Parties
Plaintiff: Commerce Commission; First Defendant: Barfoot & Thompson Ltd; Second Defendant: Harcourts Group Ltd; Third Defendant: L J Hooker New Zealand Ltd; Fourth Defendant: Ray White (Real Estate) Ltd; Fifth Defendant: Property Page (NZ) Ltd
Court
High Court
Jurisdiction
New Zealand
Judgment Date
21 February 2017
Procedural Posture
Penalty Proceedings Under the Commerce Act 1986 for Alleged Price Fixing (s 27) / Post Judgment Application to Vary Deferred Payment Order (application on the Papers)
Outcome
Application to vary the deferred payment order granted on terms: penalty to be paid in 12 monthly instalments with interest from 28 February 2017 at the Judicature Act rate; no costs order; leave to apply continued; confidentiality direction maintained
Legal Topics
Price Fixing, Penalty Orders, Deferred Payment of Penalties, Interest on Penalties, Judicial Discretion to Vary Orders
Competition Law Commercial Law Civil Procedure Price Fixing Penalty Orders Deferred Payment of Penalties Interest on Penalties Judicial Discretion to Vary Orders

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Parties

Commerce Commission

Plaintiff

Barfoot & Thompson Ltd

First Defendant

Harcourts Group Ltd

Second Defendant

L J Hooker New Zealand Ltd

Third Defendant

Ray White (Real Estate) Ltd

Fourth Defendant

Property Page (NZ) Ltd

Fifth Defendant

Procedural Posture

Penalty Proceedings Under the Commerce Act 1986 for Alleged Price Fixing (s 27) / Post Judgment Application to Vary Deferred Payment Order (application on the Papers)

Legal Issues

  1. 1 Whether the court should vary its earlier s 80(1) penalty order to permit instalment payments by L J Hooker
  2. 2 Whether interest should accrue on the deferred penalty and from what date and at what rate
  3. 3 Whether the extension of time is justified on the material provided

Ratio Decidendi

The court was satisfied on the material provided that a further deferral of the penalty payable by L J Hooker was justified and that, had the variation been sought earlier, the court would have ordered payment of the $2,475,000 penalty in 12 equal monthly instalments beginning 28 February 2017 with interest accruing from that date at the rate prescribed by the Judicature Act 1908; accordingly the earlier order was varied to those terms.

Court Disposition

Application to vary the deferred payment order granted on terms: penalty to be paid in 12 monthly instalments with interest from 28 February 2017 at the Judicature Act rate; no costs order; leave to apply continued; confidentiality direction maintained

Orders

  • The penalty of $2,475,000 payable by L J Hooker shall be paid in 12 equal monthly instalments, payable at the end of each month, with the first payment being made on 28 February 2017.
  • Interest on the penalty shall accrue from 28 February 2017 until payment is made in full at the rate prescribed by the Judicature Act 1908.