Commerce Commission v Bachcare Limited

[2025] NZHC 1596

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-197

[2025] NZHC 1596

BETWEEN

COMMERCE COMMISSION

Plaintiff

AND

BACHCARE LIMITED

Defendant

Hearing:

16 June 2025

Counsel:

V L Heine KC and D Houghton for Plaintiff

J Every-Palmer KC and G Richards for Defendant

Judgment:

16 June 2025

RESULTS JUDGMENT OF McQUEEN J

[1]    For reasons to be given I am satisfied that the agreed declarations sought by the Commerce Commission and not opposed by Bachcare Ltd are appropriate and should be made. Accordingly, I make the declarations as set out in Appendix 1 to this judgment.

[2]    I direct that the confidential documents at Tabs 3 and 8 to 12 of the Bundle  of Documents and Appendix 1 to the Commission’s written submissions dated 6 June 2025 may not be accessed without leave of a Judge and after the Court has heard from the parties, pursuant to r 5 of the Senior Courts (Access to Court Documents) Rules 2017.

COMMERCE COMMISSION v BACHCARE LIMITED [2025] NZHC 1596 [16 June 2025]

[3]    In accordance with the agreement of the parties, no order for costs is made.

McQueen J

Solicitors:

Meredith Connell, Auckland for Plaintiff Avid Legal, Wellington for Defendant

APPENDIX 1

Agreed Declarations

The Court declares that:

1.The defendant Bachcare Ltd (Bachcare), was a party to standard form consumer contracts that included the Guest Terms and Conditions published on its accommodation booking platform between 25 October 2019 and 6 April 2020 (Version A T&Cs):

2.The Version A T&Cs included two clauses (Version A Particular Terms) as follows:

3The Version A Particular Terms are Unfair Contract Terms within the meaning of s 46L(1) of the Fair Trading Act (FTA) because, when taking into account the contract as a whole and the extent to which the terms were transparent they:

(a)cause a significant imbalance in the parties’ rights and obligations arising

under the contract:

(b)are not reasonably necessary to protect the legitimate interests of the party who would be advantaged by the terms; and

(c)would cause detriment to Guests if they were applied, enforced or relied on.

4Bachcare was further a party to standard form consumer contracts that included the Guest Terms and Conditions published on its accommodation booking platform between 7 April 2020 – 14 April 2020 (Version B T&Cs):

5The Version B T&Cs included two clauses (Version B Particular Terms) as follows:

6The Version  B  Particular Terms  are  Unfair Contract Terms  within the  meaning of  s 46L(1) of the Fair Trading Act (FTA) because, when taking into account the contract as a whole and the extent to which the terms were transparent they:

(a)cause a significant imbalance in the parties’ rights and obligations arising under the contract;

(b)are not reasonably necessary to protect the legitimate interests of the party who would be advantaged by the terms; and

(c)would cause detriment to Guests if they were applied, enforced or relied on.

7Bachcare was further a party to standard form consumer contracts that included the Guest Terms and Conditions published on its accommodation booking platform between 14 July 2020 – 19 August 2020 (Version C T&Cs):

8The Version C T&Cs included two clauses (Version C Particular Terms) as follows:

9.The Version C Particular Terms, are unfair contract terms within the meaning of s 46L(1) of the Fair Trading Act (FTA) because, when taking into account the contract as a whole and the extent to which the terms were transparent they:

(a)cause a significant imbalance in the parties’ rights and obligations arising

under the contract:

(b)are not reasonably necessary to protect the legitimate interests of the party who would be advantaged by the terms; and

(c)would cause detriment to Guests if they were applied, enforced or relied on.

10Bachcare was further a party to standard form consumer contracts that included the Guest Terms and Conditions published on its Platform between 14 July 2022 – 1 April 2025 (Version D T&Cs).

11The Version D T&Cs included three clauses (Version D Particular Terms) as follows:

12The Version D Particular Terms, are unfair contract terms within the meaning of s 46L(1) of the Fair Trading Act (FTA) because when taking into account the contract as a whole and the extent to which the terms were transparent they:

(a)cause a significant imbalance in the parties’ rights and obligations arising

under the contract:

(b)are not reasonably necessary to protect the legitimate interests of the party who would be advantaged by the terms; and

(c)would cause detriment to Guests if they were applied, enforced or relied on.

13. Bachcare has published new Guest Terms and Conditions  on  2  April  2025  (New Terms and Conditions). There are still bookings made under the Version D T&Cs that are yet to be completed by Guests. Bachcare does not have the power to unilaterally vary the existing agreements entered into by these Guests under the Version D T&Cs. Bachcare will offer these Guests who contracted under the Version D T&Cs the benefit of any more advantageous position that would have pertained on cancellation under the New Terms and Conditions. On the basis it makes this offer, Bachcare may complete bookings entered under the Version D T&CS as a term of this decision and without breaching the prohibition in section 26A(1)(b) of the Fair Trading Act 1986.