I have been asked to provide an opinion on whether Donald Drumpf could claim that s 30 of the Commerce Act 1986 has been breached by Ernie Panders and Hilary Linten. To establish a breach two elements must be satisfied. First, there must be a contract, arrangement or understanding between the parties (Hilary and Ernie). Second, there must be a provision thereof which has the purpose of/has/is likely to have the effect of fixing, controlling, or maintaining, or providing for fixing, maintaining or controlling of the price for goods. Additionally, the parties must be in competition with each other and supply the goods in question. Both later requirements are satisfied on the facts. The onus for establishing that the first two elements have
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Auckland Regional Authority v Mutual Rental Cars (Auckland Airport) Limited confirmed there is no differentiation between arrangements and understandings in this context, accordingly, a single test has been developed. The High Court in Commerce Commission (CC) v Wellington Branch NZ Institute of Driving Instructors determined that an arrangement exists where there is “an apprehension shared by two or more persons that there will be accord among them as to future acts in a specified area.” The Court of Appeal refined the test in Giltrap City v CC to focus on consensus and expectation. An arrangement exists where there is a consensus, involving “a meeting of minds”, and the consensus gives rise to an expectation that some action or inaction occur. Earlier cases focussed on moral obligations between the parties, McGrath J emphasised this touchstone, but the majority in Giltrap believed consensus a more appropriate focus given the flexibility of the …show more content…
By closing their cafes, each withdrawing from the market in certain suburbs, Hilary and Ernie have effected territorial market division. However, Hilary and Ernie can argue that although market division has taken place it has not had the effect of controlling prices. Donald’s presence in the market means that the division has not prevented price fluctuations from competition. Secondly, as both Hilary and Ernie set prices according to an advertised formula, not competitive pressure, the presence or absence of competitors in the market has no bearing on
Auckland Regional Authority v Mutual Rental Cars (Auckland Airport) Limited confirmed there is no differentiation between arrangements and understandings in this context, accordingly, a single test has been developed. The High Court in Commerce Commission (CC) v Wellington Branch NZ Institute of Driving Instructors determined that an arrangement exists where there is “an apprehension shared by two or more persons that there will be accord among them as to future acts in a specified area.” The Court of Appeal refined the test in Giltrap City v CC to focus on consensus and expectation. An arrangement exists where there is a consensus, involving “a meeting of minds”, and the consensus gives rise to an expectation that some action or inaction occur. Earlier cases focussed on moral obligations between the parties, McGrath J emphasised this touchstone, but the majority in Giltrap believed consensus a more appropriate focus given the flexibility of the …show more content…
By closing their cafes, each withdrawing from the market in certain suburbs, Hilary and Ernie have effected territorial market division. However, Hilary and Ernie can argue that although market division has taken place it has not had the effect of controlling prices. Donald’s presence in the market means that the division has not prevented price fluctuations from competition. Secondly, as both Hilary and Ernie set prices according to an advertised formula, not competitive pressure, the presence or absence of competitors in the market has no bearing on