New Zealand Case Law: Decisions & Judgments

Topic

Cartel

Legal area

Court

13 Sept 2019

COMMERCE COMMISSION v RONOVATION LIMITED [2019] NZHC 2303

Citation

[2019] NZHC 2303
Court

High Court

The Court declared Ronovation contravened s 27 via s 30 for conduct before 15 May 2018 and contravened s 30 for conduct on or after 15 May 2018; having assessed maximum penalty, starting point (estimated $550,000–$650,000) and defendant‑specific mitigating factors (notably full and early cooperation, prompt cessation, lack of direct commercial gain, small company status) and applying a 35% discount, the appropriate global pecuniary penalty is $400,000.
21 Aug 2013

COMMERCE COMMISSION v VISY BOARD (NZ) LIMITED [2013] NZHC 2097

Citation

(2013) 13 TCLR 628
Court

High Court

Having accepted the admitted breaches of ss 27 and 30 affecting the New Zealand market and having assessed seriousness, market value, duration, seniority, intention, potential gain, cooperation, admissions and comparable precedents (including the Australian penalty), the Court accepted the parties' negotiated penalty figures and imposed a pecuniary penalty of NZD 3,600,000 on Visy Board Pty Limited, ordered a NZD 50,000 costs contribution, and imposed a NZD 25,000 penalty on Mr Carroll, with a 48‑hour publication deferral to permit confidentiality applications.
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…
21 Dec 2012

THE COMMERCE COMMISSION V SINGAPORE AIRLINES CARGO PTY LTD HC AK CIV 2008-404-8356

Citation

openlaw-367ff285_2c90_4950_95ae_1766aaa85a3a.pdf
Court

High Court

Court accepted that SIA Cargo engaged in deliberate, sustained cartel conduct (entry into and giving effect to FSAs and SSAs) that warranted a significant penalty; having established an appropriate starting point comparable to recent airline precedents, applied a 20% discount for mitigating factors (admission, cooperation, compliance programme, absence of senior management involvement) and imposed the agreed aggregate penalty of $4.1 million plus costs as within the proper range and necessary for deterrence.
13 Nov 2012

NEW ZEALAND BLOOM LIMITED V CARGOLUX AIRLINES INTERNATIONAL S.A. HC AK CIV 2011-404-007008

Citation

openlaw-6c7ec49f_0901_4c2d_9a01_bc70bb288fa7.pdf
Court

High Court

Defendant failed to establish as a matter of law that the matter giving rise to the contravention was reasonably discoverable before 2 November 2008; reasonable discoverability is a fact‑intensive, objective inquiry and on the material before the Court there remained an arguable case that NZ Bloom could not reasonably have discovered the relevant facts before the limitation cutoff, so the strike‑out application must be dismissed.
31 Aug 2012

COMMERCE COMMISSION V VISY BOARD PTY LIMITED COA CA312/2011

Citation

COA CA312/2011
Court

Court of Appeal

The Court held there was a good arguable case and serious issues to be tried that the Australian overarching cartel understanding and several subsidiary customer understandings extended to and affected New Zealand CFP markets; acts or omissions to which claims relate occurred in New Zealand (supporting service under HCR r6.27(2)(j)), Visy Board was carrying on business in New Zealand so s4(1) applies, and vicarious/attributional liability under s90(2)(b) and s4(1) are available; the amendment pleading attendance in NZ did not introduce a fresh time-barred cause of action. Accordingly the Comm…
27 Jul 2012

COMMERCE COMMISSION V EMIRATES HC AK CIV 2008-404-8349

Citation

openlaw-d16af90c_f1a9_4726_9263_0557ec12d21c.pdf
Court

High Court

Court accepted the parties' agreed starting range of $1.8–$2.3 million for the combined offences, applied a 25% discount for admissions, cooperation, limited commercial gain, remorse and compliance improvements, and held the agreed aggregate pecuniary penalty of $1.5 million was within the appropriate range and thus ordered it together with awarded costs.
12 Oct 2011

COMMERCE COMMISSION V DEUTSCHE BAHN AG & ORS HC AK CIV-2010-404-005479

Citation

openlaw-1839752e_e38e_4606_8526_59803306e9a2.pdf
Court

High Court

The court held that s27(1) claims based on entry into agreements overseas against Kuehne + Nagel must be dismissed because Kuehne + Nagel did not carry on business in New Zealand and s4(1) does not extend the Act to such overseas entry; however the Commission established a good arguable case under r6.29(1)(a) that s27(2) claims (giving effect to provisions) for specified agreements could be attributed to the parent under s90(2)(b) because there was plausible evidence the New Zealand subsidiary implemented the surcharges at the direction or with the consent of group agents, so the court assume…
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.
5 Apr 2011

COMMERCE COMMISSION V BRITISH AIRWAYS PLC HC AK CIV-2008-404-8347

Citation

openlaw-aff8f5ee_74ce_42fe_b146_b111ad4ef585.pdf
Court

High Court

The Court accepted the parties' agreed starting point of $2.5–3.0 million for serious, sustained cartel conduct affecting air cargo fuel surcharges, applied a 40% reduction for early admission and substantial cooperation, found the agreed penalty of $1.6 million (plus $100,000 costs) to be within the permissible range and appropriate to achieve deterrence, and approved that order despite commercial gain being not readily ascertainable.