Commerce Commission v Barfoot & Thompson Ltd

[2017] NZHC 218

SAVE FOR THE REDACTED VERSION OF THE AGREED SUMMARY OF FACTS, THE COURT FILE SHALL NOT BE SEARCHED COPIED OR INSPECTED WITHOUT LEAVE OF A JUDGE, ON AN APPLICATION MADE ON NOTICE TO ALL PARTIES.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

COMMERCIAL LIST

CIV 2015-404-3047 [2017] NZHC 218

BETWEEN

COMMERCE COMMISSION

Plaintiff

AND

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

Hearing:	(on the papers)
Counsel:	J C L Dixon, L C A Farmer and A McConachy for Plaintiff J Craig for Third Defendant No appearance by or on behalf of remaining defendants
Judgment:	21 February 2017

JUDGMENT (NO. 2) OF HEATH J

This judgment was delivered by me on 21 February 2017 at 3.00pm pursuant to

Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

COMMERCE COMMISSION v BARFOOT & THOMPSON LTD [2017] NZHC 218 [21 February 2017]

[1]      On  16  December  2016,  I  made  a  series  of  orders  under  s 80(1)  of  the

Commerce At 1986 (the Act), by which penalties were imposed on four defendants.1

The Commerce Commission (the Commission) had sought the orders to mark the defendant’s involvement in a price fixing arrangement or understanding that contravened s 27 of the Act.

[2]      In respect of two of the defendants, I made an order deferring payment of the penalties imposed.  In the case of L J Hooker New Zealand Ltd (L J Hooker) that order required payment on or before 28 February 2017, with no interest payable.  I reserved  leave to  apply in  the  event  that  any extension  to  that  order  might  be

required, and the terms on which any adjustment to the order might be made.2

[3]      Counsel for the Commission and L J Hooker have filed a joint memorandum in  which  L J  Hooker  seeks  an  extension  of the deferred  payment  order,  and  a variation of the terms on which the penalty is to be paid.

[4]      The variation would require the penalty of $2,475,000 to be paid by 12 equal monthly instalments, payable at the end of each month, with the first being made on

28 February 2017.   Because of the additional time given to L J Hooker to make payment, the parties agree that interest shall be payable from 28 February 2017 until payment is made in full.  The interest rates prescribed by the Judicature Act 1908 are intended to apply.

[5]      While not consenting to an order, the Commission does not oppose.   The evidence supporting the application is contained in counsel’s joint memorandum. No objection is taken by the Commission to provision of the evidence in that way.

[6]      I am satisfied that a further deferral, on terms requiring payment of interest from 28 February 2017, is justifiable.   On the information now available to me, I would have made an order in the amended terms had I been asked to do so on 16

December 2016.   Given the commercial sensitivity of the evidence on which my

decision is based, I do not refer to it in this judgment.  However, the public interest inherent in penalty proceedings of this type requires a formal judgment to be issued.

[7]      I vary the order made on 16 December 2016,3  so that it will now read as follows:

(a)       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.

(b)       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.

[8]      No order as to costs.

[9]      Leave to apply is continued, on the terms set out in my earlier judgment.4

[10]     The confidential joint memorandum on which I have made these orders is subject to the direction that I made on 16 December 2016 that the Court file not be searched, copied or inspected without leave of a Judge, on an application made on

notice to all parties.

P R Heath J

Delivered at 3.00pm on 21 February 2017

Solicitors:

Meredith Connell, Auckland

Glaister Ennor, Auckland Wilson Harle, Auckland Simpson Grierson, Auckland Bell Gully, Auckland Counsel:

J C L Dixon, Auckland
M Dean QC, Auckland

M N Dunning QC, Wellington

A Peterson, Auckland