New Zealand Case Law: Decisions & Judgments

Topic

Security surcharge

Legal area

Court

22 Apr 2013

THE COMMERCE COMMISSION V THAI AIRWAYS INTERNATIONAL PUBLIC COMPANY LIMITED HC AK CIV-2008-404-8354

Citation

openlaw-4ef2addb_a94c_458c_a407_30a200825aab.pdf
Court

High Court

Thai Airways admitted entering into and giving effect to fuel and security surcharge understandings in breach of ss 27 and 30. The Court assessed penalty by determining statutory maxima, establishing a starting point informed by comparable airline cases and the seriousness and duration of the conduct, then applying a 20% reduction for mitigating factors (admission, cooperation, compliance programme and limited commercial gain). The agreed aggregate pecuniary penalty of $2.7 million and costs of $259,079.18 were within the appropriate range and were approved, with an agreed instalment payment…
29 Jun 2012

THE COMMERCE COMMISSION V JAPAN AIRLINES CO LIMITED HC AK CIV 2008-404-8348

Citation

openlaw-3da79553_7c5c_453e_a3b6_b51391be2ab2.pdf
Court

High Court

The Court found JAL had entered into and given effect to the FSU and SSU in breach of ss27 and 30; having regard to seriousness, duration, seniority of participants, modest commercial gain, comparative authorities, and mitigating factors including admission, cooperation and compliance measures, the appropriate combined starting point was assessed at NZ$3.1-3.9 million and a 35% discount for mitigation was justified, producing and endorsing the agreed pecuniary penalty of NZ$2,275,000 and the agreed costs orders.
18 Apr 2012

COMMERCE COMMISSION V CATHAY PACIFIC AIRWAYS LTD HC AK CIV-2008-404-008357

Citation

openlaw-8f63e1de_6b4d_445b_8ee3_03695bc00abd.pdf
Court

High Court

The Court ordered limited tailored discovery: it rejected broad searches of Cathay's Singapore records for fuel surcharge documents and all US fuel surcharge discovery as disproportionate given low likelihood of relevant unique material and high cost, but ordered disclosure of specific emails and related correspondence identified by the Commission and full discovery of Singapore documents relating to security surcharge agreements because pleadings specifically implicated Cathay in Singapore and the likely return justified the cost.
5 Apr 2011

COMMERCE COMMISION V CARGOLUX AIRLINES INTERNATIONAL S.A. HC AK CIV-2008-404-8355

Citation

openlaw-81150cf4_4626_4115_9570_8dd1a54aac31.pdf
Court

High Court

The Court accepted the parties' methodology: establish a starting point reflecting seriousness ($8.5–14.5m for combined conduct), apply mitigating discounts (33% for early admission and cooperation), and apply the totality principle, concluding the agreed pecuniary penalty of $6,000,000 was within the permissible range and should be approved, with payment by two instalments permitted in the circumstances.

New Zealand Case Law

THE COMMERCE COMMISSION V THAI AIRWAYS INTERNATIONAL PUBLIC COMPANY LIMITED HC AK CIV-2008-404-8354

THE COMMERCE COMMISSION V JAPAN AIRLINES CO LIMITED HC AK CIV 2008-404-8348

COMMERCE COMMISSION V CATHAY PACIFIC AIRWAYS LTD HC AK CIV-2008-404-008357

COMMERCE COMMISION V CARGOLUX AIRLINES INTERNATIONAL S.A. HC AK CIV-2008-404-8355