ACCC v B&K Holdings

Australian Competition and Consumer Commission v B & K Holdings (Qld) Pty Ltd

Federal Court of Australia
(Queensland Registry QUD 316 of 2020)
[2021] FCA 260 (24 March 2021)
Justice Derrington

Catchwords

COMPETITION LAW – resale price maintenance – admitted contraventions – agreed penalties and other relief – pecuniary penalty – declaratory relief – injunctive relief – adverse publicity order – compliance program – whether orders sought by agreement appropriate in the circumstances – agreed orders appropriate

COMPETITION LAW – adverse publicity order pursuant to section 86D of Competition and Consumer Act 2010 (Cth) – whether adverse publicity order must include publication of advertisement – unnecessary to resolve issue

Legislation

Competition and Consumer Act 2010 (Cth), ss 48, 76, 80, 86C, 86D, 96

Federal Court of Australia Act 1976 (Cth)

Summary

Between February 2017 and June 2019 B&K Holdings (trading as FE Sports):

• on 328 occasions, provided terms of trade to dealers or prospective dealers which make it known it would not supply goods unless the dealer agreed not to advertise goods for sale below the recommended retail price.

• made 242 written agreements with dealers or prospective dealers including terms requiring them not to advertise goods below recommended retail price.

This contravened s 48 of the Competition and Consumer Act prohibiting resale price maintenance.

The Court ordered:

• injunctions prohibiting certain conduct

• B&K Holdings to establish a compliance program

• B&K Holdings to send corrective letters

• B&K Holdings to pay a pecuniary penalty of $350,000

• Costs as agreed between the parties