Commerce Commission v Foodstuffs North Island Limited

[2024] NZHC 2306

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2024-485-365

[2024] NZHC 2306

BETWEEN

COMMERCE COMMISSION

Plaintiff

AND

FOODSTUFFS NORTH ISLAND LIMITED

Defendant

Hearing:	8 August 2024
Counsel:	F J Cuncannon and J P W Leslie for Plaintiff I J Thain for Defendant
Judgment:	16 August 2024

JUDGMENT OF RADICH J

(Reasons)

[1]        In early 2015 and early 2016, Foodstuffs North Island Ltd caused restrictive covenants to be registered over titles to land in order to hinder its competitors.

[2]        It did not intend to breach the Commerce Act 1986 at the time but it accepts now that, in breach of s 28 of the Commerce Act, the covenants had the purpose of substantially lessening competition in relevant markets.

[3]        Foodstuffs North Island and the Commerce Commission have, together, settled the terms of an agreed statement of facts in the proceeding and, on the basis of it,1 they have agreed upon the penalty to be recommended to the Court.

1      In a notice of admissions, given by Foodstuffs North Island in accordance with r 15.16 of the High Court Rules 2016, Foodstuffs North Island admitted the facts set out in the agreed statement of facts and the causes of action in the statement of claim.

COMMERCE COMMISSION v FOODSTUFFS NORTH ISLAND LTD [2024] NZHC 2306 [16 August 2024]

[4]        Nonetheless, the Court must be satisfied for itself that the proposed penalty is within the appropriate range having regard to the objectives of the Act and the circumstances of the case.

[5]For the reasons that follow, I am satisfied that it is.2

The industry, the participants and the markets

[6]        Consumers can choose from a range of retailer operations when purchasing groceries. They include supermarkets, smaller format grocery stores, specialist grocery operators (such as butchers, greengrocers, delicatessens, chemists and bottle shops), mixed grocery general retailers (such as The Warehouse), international food stores, meal kit operators (such as Hello Fresh and My Food Bag), general merchandisers (such as K Mart), retail convenience stores (such as dairies) and online shopping sites for home delivery or store pick-up (such as the Honest Grocer and Supie).

[7]        But large retail grocery stores continue to have a prominent place in relevant markets. The two largest grocery retailer operations in the North Island are Foodstuffs North Island3 and Woolworths New Zealand Ltd.

[8]        Foodstuffs North Island’s retail banners are PAK’nSAVE, New World and Four Square. Woolworths NZ’s retail banners are Countdown, Woolworths, FreshChoice and SuperValue.4 In competing for retail customers, relevant factors for Foodstuffs North Island and Woolworths NZ are the location, size and ease of access to stores, as well as the price of the goods sold at those stores.

[9]        The bounds of the many local markets within which individual supermarkets are located are not able to be defined easily, given the differences that exist between geographic areas, the distribution of populations relative to stores and transport

2      This decision follows an oral results decision, with brief reasons, that I gave at the conclusion of the hearing on 8 August 2024 – Commerce Commission v Foodstuffs North Island Ltd [2024] NZHC 2222.

3      As will be discussed in further detail, Foodstuffs North Island was formed from the amalgamation of Foodstuffs Wellington and Foodstuffs Auckland, which took effect from 1 September 2013.

4      Woolworths NZ is rebranding its Countdown supermarkets to become Woolworths supermarkets, a process that is not yet complete.

patterns. However, the parties do not seek to have the markets defined here and they do not need to be defined for the purpose of this proceeding.

The pattern of behaviour that has led to the impugned conduct

[10]      Foodstuffs Wellington and Foodstuffs Auckland amalgamated on 1 September 2013 to form Foodstuffs North Island. From an unknown date, but at least as early as 2003, Foodstuffs Wellington would, as a matter of practice, take steps to prevent competitors from obtaining access to suitable sites in the lower North Island. It would do that in two primary ways. The first related to sites that Foodstuffs Wellington purchased for its own future expansion. It would either continue to hold the site to prevent a competitor from using it or sell it and, in doing so, would register a restrictive covenant which provided that it could not be used for supermarket activity in the future. The second saw it acquiring sites in the lower North Island to prevent competitors from gaining access to them. It would then either hold the site or register a restrictive covenant on disposal.

[11]      When Foodstuffs Wellington and Foodstuffs Auckland amalgamated, Foodstuffs North Island reviewed the consolidated property portfolio. It sold a number of the sites but, if it assessed that there was a threat of a competitor acquiring a site, it would be sold with restrictive covenants in place, even though that would reduce the sale price. Some sites were retained to prevent competitor development. Papers promoting approaches of this sort were approved by the Foodstuffs North Island board in June and again in December 2014.

[12]      It was understood by the board that, in each case in which a restrictive covenant was proposed, external legal advice would be obtained to consider whether or not it was appropriate. However, following more detailed legal advice obtained in 2014 and in 2015, Foodstuffs North Island sought to ensure that no further restrictive covenants were lodged for the purpose of preventing competitor activity.

[13]      Then, in June 2021, Foodstuffs North Island decided voluntarily to discharge all of the restrictive covenants that were intended to be for its benefit. It did so in the course of the conduct by the Commission of a market study into the grocery sector between 2020 and 2022.

[14]      It has made significant efforts since then to discharge all restrictive covenants. Its solicitors have contacted current owners of relevant properties and third party caveators. The only restrictive covenants that have not yet been discharged are those that are not within Foodstuffs North Island’s control and where independent third parties have not responded to Foodstuffs North Island’s solicitors.

[15]      Foodstuffs North Island has, proactively, provided ongoing updates on its website to explain why there are still some restrictive covenants in place and to emphasise Foodstuffs North Island’s commitment to removing them.

The particular conduct to which this proceeding relates

Newtown, Wellington

[16]      Foodstuffs North Island operates a New World supermarket in Newtown. Woolworths NZ operates a Countdown supermarket there. Woolworths NZ acquired the Countdown Newtown site between 2002 and 2007. In 2009, an adjacent site was put up for sale by public tender. Woolworths NZ and a Foodstuffs Wellington associate both put in tenders. Foodstuffs’ associate was successful, paying what was regarded as a price that was well above market.

[17]      After the Countdown supermarket opened in 2012, Foodstuffs Wellington sold the adjacent property. In doing so it registered a 75-year covenant against the title. The covenant prevents the site being used for any business in the nature of a supermarket, bakery, butchery, seller of food products or seller of Lotto tickets or products.

[18]      Foodstuffs North Island accepts that the covenant was lodged so that Woolworths NZ, or any other competitor, could not use the property for any of those purposes for a period of up to 75 years.  However, the covenant was discharged on   2 May 2022.

Petone, Lower Hutt

[19]      In Petone, Foodstuffs North Island operates a PAK’nSAVE supermarket and Woolworths NZ operates a Countdown supermarket.

[20]      The Countdown supermarket opened in May 2013. The only point of access to the supermarket is from Jackson Street. When Woolworths NZ was in the process of building the supermarket, the Foodstuffs Wellington board approved a strategy of buying surrounding sites to limit further access points to it. Over time, eight sites were purchased around the Countdown supermarket to that end.

[21]      From 12 August 2014 to 30 January 2015, each of these eight properties were sold subject to restrictive covenants. The covenants were expressed in varying ways. Some of them prevented any part of the encumbered site being used as a right of way, others included restrictions on use for car parking or as a supermarket. Each was for a period of up to 99 years.

[22]Two of the encumbrances have now been discharged.

Tamatea, South Napier

[23]      Foodstuffs North Island operates two supermarkets in Tamatea – a PAK’nSAVE and a New World. Woolworths NZ has two Countdown supermarkets in Central Napier. It has no shops in South Napier.

[24]      In 2012, a site opposite PAK’nSAVE Tamatea was bought by a Foodstuffs Wellington associate. It was sold by Foodstuffs North Island in February 2015 subject to a 99-year covenant that sought to prevent its use for, in broad terms, any outlet that would sell food or groceries on a retail or wholesale basis.

[25]      The covenant was lodged in order to stop Woolworths NZ, or another competitor, from using the site. It was discharged in August 2023.

[26]Foodstuffs North Island accepts that each of the covenants referred to in [16]–

[25] above contravened s 28(1) of the Commerce Act. Accordingly, the sole issue for the Court is to determine the level of penalty to be imposed under s 80 of the Act in accordance with r 15.16 of the High Court Rules 2016.

The approach to penalty

[27]             The Commission and Foodstuffs North Island have agreed upon the level of penalty to be recommended to the Court. But the decision on penalty remains with the Court. While agreed penalty proceedings are in the interests of the parties and of the Court, in enabling early disposal of proceedings and avoiding costly litigation,5 the Court must satisfy itself that the penalty submitted is appropriate.6

[28]             However, in doing that, as Rodney Hansen J said in Commerce Commission v Alstom Holdings SA, the Court “is not to embark on its own inquiry of what would be an appropriate figure but to consider whether the proposed penalty is within the proper range”.7 That, in turn, requires the Court to conduct an assessment of the appropriate starting point and of discounts for mitigating factors and, having done that, to form a view on whether the final figure proposed by the parties is within the appropriate range. It is the final figure that matters.8

[29]             That assessment begins with the identification of the maximum penalty under the Act, and then involves consideration of an appropriate starting point and the adjustment of that starting point on the basis of any considerations that are specific to the defendant.

Maximum penalty

[30]             Under s 80(2B)(b) of the Commerce Act, the amount of any pecuniary penalty in a case such as this must not, in relation to each act or omission, exceed the greater of the following:9

(a)$10 million;

5      Commerce Commission v Objective Corporation Ltd [2022] NZHC 1864 at [4] and Commerce Commission v New Zealand Milk Corporation Ltd [1994] 2 NZLR 730 (HC) at 733.

6      Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46, (2015) 258 CLR 482.

7      Commerce Commission v Alstom Holdings SA [2009] NZCCLR 22 at [18].

8      For example, Commerce Commission v Air New Zealand Ltd [2013] NZHC 1414, (2013) 13 TCLR 618 at [27].

9      The current wording of this aspect of the provision, which refers to 10 per cent of turnover “in each accounting period in which the contravention occurred” postdates the contraventions in issue in this proceeding.

(b)Either –

(i)three times the commercial gain obtained by the defendant from the breach; or

(ii)if  the  commercial  gain  cannot   readily   be   ascertained,   10 per cent of the defendant’s turnover from trading within New Zealand.

[31]             The parties are both of the view that the commercial gain is not readily ascertainable in this case.

[32]             Ten per cent of Foodstuffs North Island’s turnover10 amounts to $429,934,600, which would need to be multiplied by the 17 contraventions. A figure of

$7,308,888,200 results. That is the maximum penalty. But it is out of all proportion with the offending here in circumstances in which, as I come on to discuss, there is no allegation of actual adverse effects and the operations in the three locations involved generate only a small fraction of Foodstuff North Island’s overall income.

[33]             Moreover, as Allan J said in Commerce Commission v Korean Airlines Ltd, where a defendant has admitted a number of separate breaches of the Act, it will generally be convenient to view the contravening behaviour as a single, related course of conduct.11 The same approach was adopted by Venning J in Commerce Commission v Air New Zealand Ltd12 and I adopt it here.

Setting the starting point

Relevant factors

[34]             While general and specific deterrence is of primary importance in considering a starting point,13 it has been accepted in a range of cases in which penalties under s 80

10     Taken from its group revenues in the 2023 financial year.

11     Commerce Commission v Korean Airlines Ltd [2012] NZHC 1851 at [42].

12     Commerce Commission v Air New Zealand Ltd, above n 8, at [29].

13     See, for example, Telecom Corp of New Zealand Ltd v Commerce Commission [2012] NZCA 344 at [53].

have been considered that relevant factors in determining the appropriate starting point include:

(a)the nature and seriousness of the contravening conduct;

(b)whether the conduct was deliberate or not;

(c)the role of the defendant in the impugned conduct;

(d)the seniority of the employees or officers involved in the contravention;

(e)the duration of the contravening conduct;

(f)the extent of any benefit derived from the contravening conduct as well as the extent of any loss or damage suffered by any person as a result of the conduct;

(g)the importance and type of market;

(h)the market share/degree of market power held by the defendant; and

(i)the size and resources of the defendant.

[35]             The factors overlap to a considerable degree, in this case at least, such that they are best considered holistically.

[36]             There can be little question but that the conduct is serious. It gives rise to significant competition issues.14 The covenants reflected a deliberate effort to hinder competitors at the time they were put in place. They were registered over properties near to supermarkets of Foodstuffs North Island’s competitors to limit their expansion or over properties near to Foodstuffs North Island’s supermarkets to restrict competition nearby. They were designed to increase barriers to entry and expansion.

14 A point made by Cooke J in Commerce Commission v NGB Properties Limited [2023] NZHC  2005, (2023) 24 NZCPR 424 at [45], which was the first case in which the Court imposed a penalty for putting in place a restrictive covenant in contravention of s 28 of the Act.

[37]             Moreover, it was intended that they would bind the owners and subsequent purchasers of the land in question for periods of up to 99 years.15 While acknowledging this, Foodstuffs North Island says that, by virtue of s 28(4) of the Act, no covenant which has the prescribed purpose or has, or is likely to have, the prescribed effect has ever been enforceable.16

[38]             This is something that Cooke J saw as being of significance in Commerce Commission v NGB, making the point that a potential competitor wishing to acquire a site with an encumbrance, and a potential vendor wishing to sell the site with the encumbrance, would be able to apply to have the covenant removed.17 However, all conduct, the consequences of which are unenforceable, is illegal conduct; whether through the terms of a statutory provision or generally by operation of law. Whenever the Court assesses penalties, in whatever setting, it will be the case that the consequences of the unlawful conduct were not enforceable. The reality as I see it is that conduct of the type in question here has the purpose, and has the potential to have the effect, of substantially lessening competition for a considerable period of time. As Cooke J said, “removal [of a restrictive covenant] would not necessarily be a straightforward exercise, and the cost and uncertainty involved could have anti- competitive effects in themselves”.18 Accordingly, I do not see the terms of s 28(4) as affecting the seriousness of the conduct one way or another.

[39]             In a related way, Cooke J said in Commerce Commission v NGB that, while it is important for the Court to signal that contraventions of this kind are serious, they are normally less serious than initial anti-competitive acquisitions.19

[40]             With respect, it might more appropriately be put on the basis that the conduct here, while different in type to an anti-competitive acquisition, has the potential to be equally serious in nature. While an anti-competitive purchase can involve a significant

15 The restrictive covenants in Petone and Tamatea had terms of 99 years while the restrictive covenants in Newtown had a term of 75 years.

16 And, as a result of s 28A of the Act (introduced by the Commerce (Grocery Sector Covenants) Amendment Act 2022), all restrictive covenants that were intended to be for Foodstuffs North Island’s benefit had been unenforceable since 30 June 2022.

17 Commerce Commission v NGB Properties Limited, above n 14, at [49].

18 At [49].

19 At [51].

upfront cost, a restrictive covenant can persist over an equally significant period of time and  have  similar  effects  without  the  need  for  a  capital  investment.  As  Ms Cuncannon put it, a covenant can permit a defendant to “have their cake”. That, as I see it, is a reasonable observation.

[41]             Having made these points about the seriousness of the conduct, it is clear that Foodstuffs North Island did not intend to breach the Act. While the covenants did reflect a deliberate effort to hinder competitors, Foodstuffs North Island understood at the time that it was complying with the Act. It sought legal advice on whether individual restrictive covenants could have the effect or likely effect of substantially lessening competition on the basis of what was then understood about existing competitors and available sites. As the agreed statement of facts records, the properties would not have been sold with restrictive covenants had that advice not been obtained. This does not lessen the seriousness of the conduct but it does avoid any suggestion that an aggravating factor should be applied through conduct being deliberate or reckless.20

[42]             There are several aspects to the duration of the contravening conduct here. The first is that, although the encumbrances were intended to be in place for significant periods of time, those that are in question were all lodged over a relatively short period, between June 2014 and February 2015. Moreover, when concerns were raised in the course of the Commission’s market study into the grocery sector, Foodstuffs North Island confirmed that it would not enforce any restrictive covenants and decided voluntarily at that point to discharge all of the restricted covenants that were intended for its benefit. It began that process in June 2021.

[43]             All of this leads on to the issue of whether, through the covenants, Foodstuffs North Island achieved commercial gains or caused harm to be suffered. It is sufficiently clear that, in making the decisions referred to in [12] above, the Foodstuffs North Island board anticipated that gains could be derived from the conduct. However, whether that was actually so, and if so to what extent, is not readily ascertainable. While there was potential for significant harm to be caused, there is no allegation here

20     Commerce Commission v Bayley Corporation Ltd [2016] NZHC 1493 at [18].

that any of the covenants had the actual effect of substantially lessening competition in any market, or that any of them were even likely to have had such an effect. There is just no evidence of that. Certainly, Foodstuffs North Island did not at any time seek to enforce any of the covenants. The most that can be said then is that the covenants had a prescribed purpose.

[44]             Nonetheless, a purpose of that kind is significant when regard is had to the nature of the market and to Foodstuffs North Island’s size and resources.

[45]             For the year to September 2021, New Zealanders spent more than $22 billion at supermarkets and grocery stores across New Zealand – an average spend for New Zealand households in aggregate of $234 a week.

[46]             Foodstuffs North Island is a substantial player in that market and, more broadly, is one of the most significant companies in New Zealand. While the parties do not have data on Foodstuffs North Island’s market share in local markets in which its supermarkets operate, its revenues are significant. In the financial year over which the  contraventions  occurred,  the  Foodstuffs  North  Island  group  had  revenues of

$6,238,889,000. In the year ending 2 April 2023, its revenues were $4,299,346,000.21

Although, as observed earlier, its operations in the three geographic locations with which this case is concerned generate only a small fraction of its overall revenue.

Comparative cases

[47]             Penalties imposed by the Court in analogous cases can provide a level of guidance to the Court to ensure that there is parity in treatment. However, the circumstances in cases in this area – conduct, size, market power, responsibility and the like – differ to such an extent that a degree of caution is needed when endeavouring to draw comparisons.

[48]             With those points in mind, three cases have been referred to by counsel for the parties. The first is Commerce Commission v NGB Properties Ltd which, as mentioned, is the only previous case in which a penalty has been imposed for a breach

21     The apparent drop in revenue involves a change in accounting standards used, rather than a reduction in sales.

of s 28 of the Act.22 It involved a single restrictive covenant to prevent Bunnings from competing fully with a Mitre 10 MEGA store.

[49]             Cooke J accepted that the proposed total penalty of $500,000, calculated from a proposed starting point of $680,000 to $750,000, was within the available range. The conduct here was more widespread with a number of covenants, rather than just one, having been lodged across three different locations. In addition, the conduct in this case is in an industry that is of critical importance to New Zealanders and Foodstuffs North Island is one of the best-resourced companies in New Zealand. Factors such as these see the proposed starting point in this case, of $4.5–$5.5 million, as being proportionate to NGB Properties.

[50]             The Commission has referred to two further cases, not because the conduct involved is particularly relevant here, but because they involve defendants with a turnover in New Zealand that is similar in scale to that of Foodstuffs North Island.

[51]             The first is Commerce Commission v Air New Zealand.23 Air New Zealand was one of many defendants against which proceedings were brought for their involvement in a series of agreements among global airlines to apply surcharges on freight transported on selected routes to New Zealand. It was price-fixing which was observed by Venning J as being at the serious end of the spectrum of the types of conduct prohibited by the Act.24 Certain of the understandings in question lasted for up to four and a half years. The conduct there is more serious than that in question here. It was able to be inferred that Air New Zealand did actually affect competition in the relevant market.

[52]             Foodstuffs North Island and Air New Zealand are broadly similar in size. For the relevant turnover year, Air New Zealand had a total revenue of $4,483 million whereas Foodstuffs North Island’s most recently reported total revenue was

$4,229 million.25

22     Commerce Commission v NGB Properties, above n 14, at [43] and [55].

23     Commerce Commission v Air New Zealand, above n 8.

24 At [31].

25     However, there has a been change in accounting standards in the intervening period.

[53]             However, the differences in the cases are such as to enable a conclusion that a starting point in this case that should be well below the $9 million to $9.75 million starting point adopted in Air New Zealand is appropriate.

[54]             The defendant in Commerce Commission v Carter Holt Harvey Ltd had a significant turnover also.26 It was a little smaller than that of Foodstuffs North Island but the maximum penalty was 20 per cent of its turnover figures. The case involved cartel conduct between a Carter Holt company and its major customers. But the conduct evolved from essentially in-house and legitimate discussions to something illegitimate when third parties became involved27 and did not involve the board or the executive. Here, by way of comparison, the conduct was always aimed at hindering competition and was approved at board level.

[55]             The market affected by the conduct of the Carter Holt Harvey entity had a value of between $19 million and $24 million annually, which sits well below the size of the market in question here. These contrasting factors show that the starting point in this case needs to be above the starting-point range of $2.8 million to $3.2 million adopted in Carter Holt Harvey.

Conclusion on starting point

[56]             Having regard to the overriding need for deterrence, to the relevant factors in determining a starting point and to other cases from which assistance can be drawn, I am satisfied that a starting point of between $4.5 million and $5.5 million in this case is an appropriate range.

Mitigating features

[57]             There are a number of factors, specific to the defendant, that justify discounts from the starting point.

[58]             The first is that Foodstuffs North Island has not previously been found to have contravened the Act. It has not been given a warning under the Act.

26     Commerce Commission v Carter Holt Harvey Ltd [2014] NZHC 531.

27 At [40].

[59]             Secondly, it cooperated with the Commission in its investigation. Moreover, it cooperated actively during the Commission’s market study which was the genesis for the investigation which, in turn, led to the proceeding.

[60]             Thirdly, Foodstuffs North Island has taken the significant steps that I have mentioned to discharge all restrictive covenants. Only those that are not within its control remain undischarged. In a related way, it has gone to some lengths to publicise the issues that its restrictive covenants have given rise to and the steps it is taking to remove them in order to contribute to public awareness and education on the anti- competitive issue as a whole.

[61]             Fourthly, Foodstuffs North Island acknowledged that it had contravened the Act at the earliest possible stage in the proceeding and then worked collaboratively with the Commission to achieve an outcome, on acceptable terms, that is the subject of this decision.

[62]             In Reserve Bank of New Zealand v TSB Bank Ltd, Mallon J undertook a review of discounts given in determining pecuniary penalties under the Act28 Previous cases have applied discounts in a range from between 25 per cent to 50 per cent for mitigating factors. Mallon J observed that:

(a)discounts in the range of 25 per cent have been applied where there have been early admissions of responsibility but no active cooperation.29

(b)discounts of between 25 per cent and 30 per cent have been given for early admissions and full cooperation.30

28 See, in particular, Reserve Bank of New Zealand v TSB Bank Ltd [2021] NZHC 2241, [2021] NZCCLR 27 at [49], where Mallon J undertook a review of discounts given in relation to pecuniary penalties under the Commerce Act.

29    At [49], citing, among other cases, Commerce Commission v PGG Wrightson [2015] NZHC 3360.

30     At [49], citing, among other cases,  Commerce Commission  v First Gas Ltd  [2019] NZHC 231;

Commerce Commission v Property Brokers Ltd [2017] NZHC 681, [2017] NZCCLR 14.

(c)discounts of between 45 per cent and 50 per cent have been given in cases where there has been additional assistance, for example, by giving evidence in proceedings against others.31

[63]             The parties agree that this case falls within the second category. As do I. Accordingly, a 30 percent discount is appropriate. Applying that discount to the starting point range would result in a penalty of between $3.15 million and

$3.85 million. The Commission submits that a final penalty of $3.25 million is appropriate. Foodstuffs North Island accepts a penalty in that sum. Because, on the basis of my analysis, the final figure proposed is within the appropriate range, the imposition of a final penalty in that sum is in order. I am satisfied that it reflects the application of the totality principle to the conduct that is in question.

Declarations and orders

[64]I make the following declarations:

(a)Foodstuffs North Island contravened s 28 of the Commerce Act in relation to the encumbrance registered on the title to the property at 194 Adelaide Road, Newtown.

(b)Foodstuffs North Island contravened s 28 of the Commerce Act in relation to the encumbrances registered over titles to properties at 3–9, 11, 17, 19–21, 23 and 25–27 Gear Street, 96 Hutt Road and 33–43 Jackson Street (together with an 18 square metre parcel of land adjacent to 33–43 Jackson Street), Petone.

(c)Foodstuffs North Island contravened s 28 of the Act in  relation  to  the encumbrance  registered   over   the   title   to   the   property   at   1 Durham Avenue in South Napier.

[65]             I order, under s 80 of the Commerce Act, that Foodstuffs North Island pay to the Crown a pecuniary penalty in the sum of $3.25 million.

31     At [49], citing, among other cases, Commerce Commission v Lodge Real Estate Ltd [2016] NZHC 3115 at [24].

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

Radich J

Solicitors:

Cuncannon, Wellington for Plaintiff DLA Piper, Auckland for Defendant