Ipsofactoj.com: International Cases [2005] Part 4 Case 9 [NZCA]


COURT OF APPEAL, NEW ZEALAND

Coram

Giltrap City Ltd

- vs -

The Commerce Commission

GAULT J

TIPPING J

McGRATH J

5 NOVEMBER 2003


Judgment

Gault J & Tipping J

INTRODUCTION

  1. On 3 June 1993 there was a meeting of eight Auckland car dealers. They were each in the business of selling Toyota vehicles. One of those attending was the appellant, Andrew Thomas MacKenzie. He was the dealer principal and chief executive officer of the other appellant, Giltrap City Ltd, a member of the Giltrap group of companies. As we will note more fully below a dealer principal has the full managerial responsibility and authority for running the dealership. The Commerce Commission, which is the respondent to the appeals, formed the view that all those at the meeting had entered into a price fixing arrangement (or understanding) contrary to the combined effect of ss27 and 30 of the Commerce Act 1986. The Commission commenced proceedings under s80 of the Act for pecuniary penalties against each of the eight individuals and each of the companies they represented. Each of the companies, with the exception of Giltrap City, agreed to pay a penalty of $50,000.00. On that basis the proceedings against the individuals, except Mr. MacKenzie, were not pursued.

  2. The proceedings continued against Giltrap City and Mr. MacKenzie, and went to trial before Glazebrook J, who found, contrary to Mr. MacKenzie’s denial, that he too had entered into the offending arrangement. The Judge found that he had done so within his actual or apparent authority as general manager of Giltrap City, and that under s90(2) of the Act his conduct was therefore that of Giltrap City as well as his own. The Judge imposed a penalty of $150,000.00 on Giltrap City but decided not to impose any penalty on Mr. MacKenzie personally. Both he and Giltrap City have appealed.

  3. The essence of Mr. MacKenzie’s appeal is that he was wrongly found to have entered into the price fixing arrangement. He argues alternatively that, even if he did do so, he should not have been found to have contravened s27 in his personal capacity. That proposition is based on the contention that as he was found to have been acting within his authority, his conduct was that of Giltrap City, and he cannot properly be said to have entered into the offending arrangement personally. He contends that at worst he may, in his personal capacity, have been a secondary party, by aiding and abetting or otherwise being knowingly concerned in Giltrap City’s contravention and thus guilty under the relevant secondary paragraphs of s80(1). He was not, however, sued on that basis. Hence his fallback argument is that the contravention finding made against him should be set aside on the basis that as his conduct bound Giltrap City he should not be found personally liable.

  4. Giltrap City’s appeal relies on the first of Mr. MacKenzie’s points and the obverse of the second.

    • First the company says that Mr. MacKenzie did not enter into the arrangement; hence Giltrap City cannot be said to have done so through his instrumentality.

    • Second it says that even if Mr. MacKenzie did enter into the arrangement, he was, in so doing, not acting within his actual or apparent authority.

    If its liability is upheld, Giltrap City appeals against the amount of the penalty imposed on it, arguing both manifest excess and disparity with the penalties imposed on the other participants in the arrangement.

    THE LEGISLATION

  5. Section 27(1) of the Act provides:

    27.

    Contracts, arrangements, or understandings substantially lessening competition prohibited

    (1)

    No person shall enter into a contract or arrangement, or arrive at an understanding, containing a provision that has the purpose, or has or is likely to have the effect, of substantially lessening competition in a market.

  6. The contention in this case is not that Mr. MacKenzie entered into a price fixing contract. Rather it is said he entered into a price fixing arrangement or arrived at a price fixing understanding. We will refer only to arrangements unless it becomes appropriate or necessary to examine also the concept of an understanding.

  7. Section 30(1) is in these terms:

    30.

    Certain provisions of contracts, etc., with respect to prices deemed to substantially lessen competition

    (1)

    Without limiting the generality of section 27 of this Act, a provision of a contract, arrangement, or understanding shall be deemed for the purposes of that section to have the purpose, or to have or to be likely to have the effect, of substantially lessening competition in a market if the provision has the purpose, or has or is likely to have the effect of fixing, controlling, or maintaining, or providing for the fixing, controlling, or maintaining, of the price for goods or services, or any discount, allowance, rebate, or credit in relation to goods or services, that are—

    (a)

    Supplied or acquired by the parties to the contract, arrangement, or understanding, or by any of them, or by any bodies corporate that are interconnected with any of them, in competition with each other; or

    (b)

    Resupplied by persons to whom the goods are supplied by the parties to the contract, arrangement, or understanding, or by any of them, or by any bodies corporate that are interconnected with any of them in competition with each other.

  8. The combined effect of the two sections is that those who enter into a price fixing arrangement contravene s27 because the price fixing dimension is deemed to bring about a substantial lessening of competition.

  9. Section 90(2) of the Act, which becomes relevant at a later stage, can also conveniently be set out here:

    90.

    Conduct by servants or agents

    (2)

    Any conduct engaged in on behalf of a body corporate—

    (a)

    By a director, servant, or agent of the body corporate, acting within the scope of his actual or apparent authority: or

    (b)

    By any other person at the direction or with the consent or agreement (whether express or implied) of a director, servant, or agent of the body corporate, given within the scope of the actual or apparent authority of the director, servant or agent—

    shall be deemed, for the purposes of this Act, to have been engaged in also by the body corporate.

    THE JUDGE'S APPROACH TO THE LAW

  10. In her judgment Glazebrook J examined the legal nature of an arrangement for s27 purposes. First she identified a need for "mutuality". That term has been used in the past in the sense of a meeting of minds. Relying on the judgment of Diplock LJ in British Basic Slag Ltd v Registrar of Restrictive Trading Agreements [1963] 1 WLR 727 at 746-7, the Judge held that it was sufficient to satisfy the requirement for mutuality that an arrangement be "morally binding only". This was in contrast to legally binding. She observed that this appeared to be an objective standard rather than an inquiry "into the subjective intentions of the parties".

  11. The Judge then cited the following passage from Diplock LJ’s judgment:

    it involves mutuality in that each party, assuming he is a reasonable and conscientious man, would regard himself as being in some degree under a duty whether moral or legal, to conduct himself in a particular way or not to conduct himself in a particular way as the case may be, at any rate so long as the other party or parties conducted themselves in the way contemplated by the arrangement.

    [emphasis added by the Judge]

  12. Glazebrook J went on to observe that this suggested the question was not whether Mr. MacKenzie considered himself under a moral obligation to the other dealers but whether a reasonable and conscientious man would have so regarded himself.

  13. After addressing certain factual matters, to which we will come in due course, the Judge next observed that there was some authority which suggested that mutuality was not in any event an absolute requirement. She cited the judgment of Fisher J in Trade Practices Commission v Nicholas Enterprises Pty Ltd (No. 2) (1979) 40 FLR 83, 89. She also cited the decision of the Full Court of the Federal Court which dismissed an appeal from Fisher J’s decision, the case being reported as Morphett Arms Hotel Pty Ltd v Trade Practices Commission (1980) 30 ALR 80. Finally the Judge mentioned the decision of this Court in Commissioner of Inland Revenue v BNZ Investments Ltd [2002] 1 NZLR 450.

    ARRANGEMENT - DISCUSSION

  14. Having considered the submissions on both sides of the issue, we have come to the view that, although the Judge’s approach to the existence and proof of an arrangement for s27 purposes was properly based on previous articulations of the appropriate test, it can usefully be put rather more simply, at least for the purposes of this case. It is therefore necessary to develop the topic a little further before examining the facts of the present case.

  15. We do not consider it appropriate to be tied in any determinative way to the concepts of mutuality, obligation and duty. While the concept of moral obligation is helpful in that it will often reflect the effect of an arrangement or understanding under s27, the flexible purpose of the section is such that it is best to focus the ultimate inquiry on the concepts of consensus and expectation. A finding that there was a consensus giving rise to an expectation that the parties would act in a certain way necessarily involves communication among the parties of the assumption of a moral obligation.

  16. Consensus and expectation were some of the terms used in Commissioner of Inland Revenue v BNZ Investments Ltd which also involved the concept of an arrangement, albeit for tax avoidance purposes: see the following passage from the joint judgment of Richardson P, Keith J and Tipping J at 465:

    In short, an arrangement involves a consensus, a meeting of minds between parties involving an expectation on the part of each that the other will act in a particular way. The descending order of the terms "contract, agreement, plan or understanding" suggests that there are descending degrees of enforceability, so that a contract is ordinarily but not necessarily legally enforceable, as is perhaps an agreement, while a plan or understanding may often not be legally enforceable. The essential thread is mutuality as to content. The meeting of minds embodies an expectation as to future conduct. There is consensus as to what is to be done.

    It is also helpful to note Willmer LJ’s use of the concept of expectation in the following passage from his judgment in Basic Slag at 734:

    .... when each of two or more parties intentionally arouses in the others an expectation that he will act in a certain way, it seems to me that he incurs at least a moral obligation to do so.

  17. Before there can be an arrangement under s27 (or for that matter an understanding) there must be a consensus between those said to have entered into the arrangement. Their minds must have met – they must have agreed – on the subject matter. The consensus must engender an expectation that at least one person will act or refrain from acting in the manner the consensus envisages. In other words, there must be an expectation that the consensus will be implemented in accordance with its terms. If no specific action or inaction is envisaged on anyone’s part, it would be difficult to find an arrangement under s27, if only for want of the existence of the necessary purpose or effect of substantially lessening competition.

  18. We therefore consider that the question whether a particular person entered into an arrangement or arrived at an understanding under s27 should be answered by asking whether that person was part of a consensus giving rise to an expectation that some proscribed action or inaction take place. If they were, they will have entered into an arrangement. If they were not, they will not have entered into any arrangement, but they may nevertheless have contravened s27 by being a secondary party in the sense of being knowingly concerned in, inducing or encouraging entry into a proscribed consensus by others: see s80(1)(e). The difference is between being part of the consensus on the one hand, and inducing, encouraging or otherwise being knowingly concerned in a consensus in which you have not actually joined on the other. The distinction may at times be a fine one on the facts but conceptually it is clear.

    PROOF OF AN ARRANGEMENT

  19. It is desirable to say something at this point about how the necessary consensus is established. In this case there is no doubt that there was a consensus between the others present at the crucial meeting on 3 June 1993. The essential question is whether Mr. MacKenzie was part of that consensus. There is an analogy between proving the existence of a contract, for contract law purposes, and proving the existence of a consensus for s27 purposes.

  20. Most contract law textbooks speak, and for many years have spoken of "the phenomena of agreement": see for example Burrows Finn & Todd, The Law of Contract in New Zealand (2nd ed – 2002), chapter 3 of which is so entitled. At page 35 of their work the learned authors aptly point out that the concepts of assent and agreement, which underpin the law of contract, do not involve an examination of the actual state of mind of the parties but rather whether the necessary assent or agreement can be inferred from their conduct. The parties are to be judged not by what was in their minds but by what their conduct leads reasonable people to believe was in their minds. If a reasonable person would believe from your conduct that you are assenting, the law of contract will regard you as having assented. External appearances govern the inquiry, not undisclosed thoughts. Of course, if others know you are not assenting, despite outward appearances, they cannot claim you are bound: see for example Rattrays Wholesale Ltd v Meredyth-Young & A’Court Ltd [1997] 2 NZLR 363 at 374. After citing Paal Wilson & Co A/S v Partenreederei Hannah Blumenthal The Hannah Blumenthal [1983] 1 AC 854, at pp 923 – 925 per Lord Brightman, Tipping J said:

    Not only must the party who is said to have agreed by its conduct to a variation of contract (in Paal Wilson it was an abandonment but the principle is the same) be shown to have so conducted itself as to entitle the other party to believe that the contract had been varied; the other party must also actually believe that the first party was by its conduct so agreeing.

  21. As reinforcement of the correct general approach we return to Burrows Finn & Todd’s Law of Contract. At paragraph 3.2 on page 36 the learned authors close their introduction to Chapter 3 by saying:

    It is for this reason that the title of the present chapter is not "agreement" but "the phenomena of agreement", concerned not with the presence of an inward and mental assent but with its outward and visible signs.

  22. For a similar approach in an analogous tortious context see the speech of Lord Steyn for a unanimous House of Lords in Williams v Natural Life Health Foods Ltd [1998] 1 WLR 830 at 835:

    This point was elucidated in Henderson’s case by Lord Goff of Chieveley. He observed, at p.181:

    .... especially in a context concerned with a liability which may arise under a contract or in a situation "equivalent to contract", it must be expected that an objective test will be applied when asking the question whether, in a particular case, responsibility should be held to have been assumed by the defendant to the plaintiff: ....

    The touchstone of liability is not the state of mind of the defendant. An objective test means that the primary focus must be on things said or done by the defendant or on his behalf in dealings with the plaintiff. Obviously, the impact of what a defendant says or does must be judged in the light of the relevant contextual scene. Subject to this qualification, the primary focus must be on exchanges (in which term I include statements and conduct) which cross the line between the defendant and the plaintiff.

  23. Section 27 is concerned with and designed to cover contracts in the strict sense, as well as arrangements and understandings. It is therefore appropriate and in accordance with the policy and purpose of the section to adopt the same approach to proof of arrangements and understandings as that taken with contracts and analogous issues. The existence of the necessary consensus is therefore to be judged by reference to what reasonable people would infer from the conduct of the person whose participation in the consensus is in issue. As noted earlier, the consensus must of course be such that it engenders an expectation in the minds of the participants that at least one person will act in a proscribed manner. That latter aspect is not the essential point in this case as it is self evident. Here the essential question is whether Mr. MacKenzie so conducted himself that reasonable people, appraised of all the relevant circumstances, would take the view that he was part of the consensus. To that subject we now turn.

    ARRANGEMENT – THIS CASE

  24. It is necessary to examine the events leading up to the meeting of 3 June 1993 before coming to what happened at that meeting. What occurred at the meeting cannot be viewed in a vacuum. Toyota New Zealand gave authorised dealers a three monthly rebate contingent on the number of vehicles they had sold in the period. The rebate was paid in cash and was very important to the profitability of dealerships. Hence volume of sales was at least as important and, according to Giltrap City’s method of operation, more important than the terms of individual sales contracts. Fleet sales were by far the largest part of Giltrap City’s business. The Giltrap Group was a keen discounter of sale prices; this being consistent with its emphasis on volume. There was, however, a feeling among Auckland dealers that heavy discounting was not in the best interests of dealers as a whole.

  25. The dealer principals in the Auckland area were in the habit of meeting on a regular basis each month. One such meeting was scheduled for 5 May 1993. The agenda for that meeting showed that "discounting levels" and "dealership profitability" were to be items for discussion. Mr. MacKenzie attended this meeting as the dealer principal of Giltrap City. The minutes of the meeting record, under the heading "Discounting" that:

    The effects of some very aggressive discounting by Auckland Toyota Dealers combined with a Fleet Discount scheme that is out of touch with todays market has led Auckland Metro Dealers to call a meeting later in May, in an attempt to get some sanity and profitability back into new vehicle sales.

  26. The foreshadowed meeting was called for 19 May. A reminder was sent to all the dealers involved, including Mr. MacKenzie, the day before. It referred to the following day’s meeting as "our meeting on discounting". The reminder invited "any thoughts or systems on how we can get this to work". Mr. MacKenzie attended the 19 May meeting, of which minutes were circulated by the Chair of the meeting the following day in letter form. Mr. MacKenzie did not contend then or at any time proximate to this meeting that the minutes were inaccurate. They commenced by recording that eight Auckland dealers, including Mr. MacKenzie, were present, as he himself accepted.

  27. The rest of the minutes should be set out in full. What they recorded contemporaneously about this meeting is important:

    The aim of yesterdays meeting was to put a stop to excessive New Vehicle discounting between Toyota dealers in the Auckland market.

    Consensus of the above dealers was reached that excessive discounting should cease and all undertook their willingness to achieve that goal. The excessive levels of discounting are in three areas of New Vehicle trading – Leasing, Fleet, and Private.

    Leasing:

    Those dealers who have current arrangements with leasing companies where extra incentives are given over and above the 12% discount rate, agreed to cease those arrangements with effect from June 1, 1993. Any accessories are to be charged as per the standard accessory price list which will be distributed during the next week.

    Fleet:

    Depending on any changes that may be made to the fleet scheme at the June 1 & 2 seminar, a tentative agreement was made that a ceiling of 10% discount should apply to categories A, B & C. If dealers wished to exceed this guideline, they could only do so through the "hotline". Registration and petrol are to be charged on each agreement and accessories are to be charged as per the standard accessory pricing list. All Extra Care products are to be charged at the recommended retail price and any H.P. finance written below the base rate should form part of the overall allowable discount level.

    Private:

    It was agreed that 8% should be the maximum discount given to any private customer. Registration and petrol are to be charged on each agreement. Accessories are to be charged as per the standard list, however, should they be given away, or finance charged below the base rate, they should form part of the overall discount level of 8%.

    As discussed, the above agreements will only work successfully if they have the TOTAL backing of the Dealer Principals. It is imperative that these guidelines are transmitted down to Sales Managers and all salespeople, so that there can be no excuses for forgetfullness or ignorance. The agreements made to the Leasing and Private market is effective from June 1, with the Fleet market agreement to be finalised at our June 3rd meeting at Greenlane Toyota.

  28. Although the Commission did not assert that a price fixing arrangement was entered into at the meeting of 19 May, it did contend that the events of this meeting were a very important backdrop to the crucial meeting held on 3 June. The minutes of the 19 May meeting record that a "consensus" was reached by all at that meeting as regards the level of discounting to be adopted in relation to leasing and private sales of new vehicles. A "tentative" agreement was reached as regards fleet sales. That consensus and tentative agreement was recorded as including Mr. MacKenzie. He now seeks to disavow that proposition, having not done so at the time. The contemporaneous record must be regarded as providing strong evidence that it appeared, at least to the Chair of the meeting, and probably to the others present, that Mr. MacKenzie was part of the consensus and tentative agreement then reached. That is highly relevant to the ultimate proposition the Commission advances that Mr. MacKenzie was part of the consensus involving all three dimensions reached at the meeting on 3 June.

  29. Only two of those present at the meeting on 3 June 1993 were called to give evidence. The Commission called a Mr. Felton who was representing Greenlane Toyota and chaired the meeting. Mr. MacKenzie gave evidence on his own behalf. There can be no doubt from the evidence that an arrangement to limit discounts on Toyota vehicles was entered into at the meeting. The only issue is whether Mr. MacKenzie entered into the arrangement. The Judge found he was present when the arrangement was entered into but that he said nothing material either way as to whether he was or was not willing to enter into the arrangement.

  30. In coming to that conclusion the Judge rejected Mr. MacKenzie’s evidence, given for the first time in cross-examination, that he had left the meeting early, before the relevant discussion took place. That proposition had not been signalled at any previous stage of the litigation, including Mr. MacKenzie’s own evidence-in-chief. Had it been correct that Mr. MacKenzie did leave the meeting early, that would surely have been a central feature of his case from the start. The belated way in which the proposition was advanced can only be described as extraordinary, and no doubt influenced the Judge in her rejection of this evidence.

  31. On 27 May Mr. Felton had sent out a reminder notice in relation to the 3 June meeting. The agenda for that meeting set out the matters to be considered at it. Mr. Felton, as Chair, kept contemporaneous hand-written notes of the discussion which basically followed the agenda. Under the heading "Discounting discussion" he noted "No further incentives. Undertaking given by all. Heads of agreement to be signed." He then started to draft those heads of agreement in his notes, and wrote: "We, the Auckland Metro Toyota dealers, agree to restrict discounting on new vehicles to the following levels." He then wrote details of those levels under each of the three categories: private, leasing and fleet.

  32. At a later point in the meeting Mr. Felton wrote out on a separate sheet of paper a document headed "agreement unanimous". It repeated in tidier form the details earlier recorded in Mr. Felton’s notes. His addition, at the suggestion of another participant at the meeting, of the word "unanimous" to the word agreement, can only be read as signalling that he understood, from Mr. MacKenzie’s attitude and conduct generally, that he was agreeing to participate in the price fixing arrangement which was now being confirmed and recorded. There is no basis for concluding that Mr. Felton’s appreciation of where Mr. MacKenzie stood was other than a reasonable appreciation, particularly in the light of what had gone before.

  33. Later that same afternoon the sales managers of the various dealerships were due to meet at 4.30pm. Mr. Beechey was Giltrap City’s sales manager. Sometime prior to the 4.30pm meeting, but at a time consistent with the conclusion of the dealer principals meeting, Mr. Beechey faxed a revised agenda for the sales managers’ meeting to his counterparts. Item 4 on the revised agenda was expressed to be:

    Full discussion on discount policy to be adhered to by all northern zone dealerships. Rules applying to this are tabled on the attached sheet.

  34. The tenor of that item, read in context, is that the discount policy had already been settled and the discussion at the sales managers’ meeting was to relate to implementation of the policy. The rules on the "attached sheet" were those governing the policy as settled by the dealer principals. They were rules to which the sales staff were expected to adhere. An issue arose as to whether what was said to be the attached sheet was indeed the sheet attached to Mr. Beechey’s revised agenda. Although there is no direct evidence linking the two documents, we consider that it is a reasonable inference that the typewritten document headed "agreement", prepared on the same letterhead as the agenda, was indeed the attached sheet. The typewriting appears identical. The document is clearly a typewritten copy of the hand-written "agreement unanimous". The text is sufficiently similar to raise a strong inference that it was copied from the hand-written "agreement unanimous" document.

  35. The question then becomes how Mr. Beechey came into possession of the "agreement unanimous" document, or otherwise became privy to its terms, so as to be able to attach a typewritten copy to his revised agenda. We have considered all the evidence on this point and everything that counsel said in their submissions. Mr. Felton’s notes of the 3 June meeting record that Sales Managers were to discuss and "agree on pricing". We conclude, on the basis that it is a reasonable inference, that Mr. MacKenzie either conveyed the contents of the agreement unanimous document to Mr. Beechey or more likely made his copy of that document available to him. The significance of this conclusion is that Mr. MacKenzie was thereby acting in accordance with and taking the first step towards implementing the arrangement entered into at the 3 June dealer principals meeting. He was conveying the contents of the "agreement unanimous" to his sales manager, so that the sales staff could act in accordance with it. This conduct on Mr. MacKenzie’s part reinforces very strongly the view that he did indeed enter into the price fixing arrangement recorded during the 3 June dealer principals meeting.

  36. Against that whole background it is hardly surprising that Glazebrook J made her finding that Mr. MacKenzie made a positive decision to become a party at least to the fleet sales part of the arrangement. She also found in relation to all aspects of the arrangement that, by his silence, Mr. MacKenzie deliberately gave the impression he was in agreement with the arrangement, even if, as he now asserted, he was not.

  37. In terms of our earlier discussion, the correct touchstone for whether someone has entered into an arrangement is outward appearance rather than inner thoughts. The tenor of her judgment shows the Judge was clearly satisfied that any reasonable person appraised of all the relevant circumstances would have concluded that Mr. MacKenzie was entering into the arrangement. That was a finding of fact, fully open to the Judge on the evidence. Having considered the evidence and counsels’ submissions we find ourselves in agreement with the Judge. We are satisfied the Commission proved that Mr. MacKenzie entered into the price fixing arrangement on 3 June 1993.

    AUTHORITY

  38. The next issue is whether Mr. MacKenzie, being the servant or agent of a body corporate, namely Giltrap City, entered into the arrangement within the scope of his actual or apparent authority. If Mr. MacKenzie was acting within his actual or apparent authority, his conduct is deemed to have been engaged in also by Giltrap City: see s90(2)(a) of the Act. We will consider Mr. MacKenzie’s actual authority first, against Mr. Reed QC’s strongly pressed argument that there was no such authority because an arrangement curtailing discounting was anathema to the Giltrap Group and was contrary to its whole ethos and policy. Counsel argued that the course of action Mr. MacKenzie took was in effect to change the whole policy of the Group and Giltrap City concerning discounts and was therefore not within his authority.

  39. The first thing to note is that it is the conduct of Mr. MacKenzie as regards Giltrap City which is in issue. Giltrap City is the legal entity in question – not the whole Giltrap Group, albeit the fact that Giltrap City was a member of the Group is of course a matter of relevance.

  40. Actual authority can be of two kinds – express or implied. Express authority is authority which is expressly given by the principal to the agent for or covering the transaction in question. One form of implied authority is the authority which the law regards as existing by reference to the position held by the agent vis-à-vis the principal. In the corporate arena, as here, the role performed by the servant or agent in the corporate structure will influence the extent of that person’s implied authority. In general terms the more senior the role the greater the person’s implied authority is likely to be.

  41. This general subject is discussed in Sections 2 and 3 of Chapter 3 in Bowstead & Reynolds on Agency (17th ed – 2001). The learned author’s Article 29 deals with the kind of implied actual authority most relevant to the present case under the heading of Managerial Agents. A managerial agent is one who is authorised on his principal’s behalf to conduct a particular trade or business. Giltrap City’s directors clearly invested Mr. MacKenzie with that form of authority to manage the affairs of Giltrap City. He was named as the company’s chief executive officer for the purpose of the Motor Vehicle Dealers Act 1975. His business card described him as general manager. He was named as the dealer principal in the agreement between Toyota New Zealand and Giltrap City. The scope of the authority of a dealer principal was described in that agreement as being full managerial authority and responsibility for the operating management of the Dealer (Giltrap City).

  42. Thus Giltrap City gave Mr. MacKenzie authority in those terms as regards Toyota New Zealand. That level of authority and the authority of a general manager and chief executive officer of a company like Giltrap City is relevant when determining whether in entering into the price fixing arrangement Mr. MacKenzie was acting within the scope of the authority properly to be implied from the role he was employed to fulfil for Giltrap City: see Hely-Hutchinson v Brayhead Ltd [1968] 1 QB 549, 583 per Lord Denning MR. The fact that conduct is unlawful does not of itself prevent it from falling within the scope of the implied actual authority of a servant or agent. If the activity is within the scope of that authority the fact that the particular manifestation is unlawful does not of itself take it outside that scope; a similar rule applies in the case of fraud: see Bowstead & Reynolds Article 23 at 3-008, where the author discusses the limits of this doctrine in relation to actual authority.

  43. It is worth interpolating here that, consistently with what we have just noted, s90 of the Commerce Act clearly contemplates that conduct of a servant or agent which amounts to a breach of the Act may be within the actual or apparent authority of the servant or agent. If that were not so, s90(2) could not have been drafted as it is. It is therefore no answer to the Commission’s contention that Mr. MacKenzie’s conduct was within his actual authority that it amounted to a breach of s27.

  44. It must also be remembered that what is in issue in our present discussion is implied actual authority, not apparent authority, which depends on whether the principal has held the servant or agent out as having authority. The fact that authority is implied from the office which the servant or agent holds in the corporate principal, means that it is possible for that person to act within implied authority yet do something of which the principal would not have approved if asked for express authority. For the purposes of the Commerce Act at least, a corporate principal which entrusts the general management of the enterprise to a general manager and chief executive officer, gives that person implied authority to do whatever comes within the ambit of such general management. It is no answer for the principal to say that an act performed within the scope of that general management was not within the general policy of the organisation. That will no doubt be a matter between principal and agent. But it does not prevent the servant or agent’s conduct from being within his or her implied actual authority.

  45. Mr. Reed argued that what Mr. MacKenzie had done, if he was found to have entered into the offending arrangement, represented a frolic of his own, and was not therefore within the scope of his authority as general manager and chief executive officer of Giltrap City. It was not argued that, given sufficient authority, Mr. MacKenzie was not acting "on behalf of" Giltrap City, as to which see NMFM Property Pty Ltd v Citibank Ltd (2000) 107 FCR 270 at para 1244. We do not accept that Mr. MacKenzie was, in entering into the offending arrangement, embarking on a frolic of his own. He was undoubtedly acting within his implied authority when he entered into discussions with the other dealers concerning discounting and allied topics. He was clearly authorised to attend the relevant meetings for that purpose. To hold otherwise would be unrealistic for someone occupying the position of general manager and chief executive officer of a motor vehicle dealership.

  46. Mr. MacKenzie was in our view entitled, within his implied authority, to decide whether Giltrap City should enter into the arrangement in question. His views as to that may not have coincided with those of the directors of the company but, even if there had been an express prohibition, and there was no evidence of that, we consider that what Mr. MacKenzie did was, for present purposes, within his implied authority. That follows from the decision of the House of Lords in Director General of Fair Trading v Pioneer Concrete (U.K.) Ltd [1995] 1 AC 456 which, if anything, is a stronger case than the present because there the employee was at a lower level than Mr. MacKenzie and had been expressly forbidden to enter into the offending arrangement. The following passage from Lord Nolan’s speech at 475A is instructive. It was concurred in by Lord Jauncey, Lord Mustill and Lord Slynn. Lord Templeman spoke to similar effect. Lord Nolan said:

    A limited company, as such, cannot carry on business. It can only do so by employing human beings to act on its behalf. The actions of its employees, acting in the course of their employment, are what constitute the carrying on of business by the company. When the roll was called at the public house meeting at which the Bicester agreement was concluded the employees attending did not respond as individuals: they did so as representatives of their respective companies, fully competent as a practical matter of fact to make the agreement on behalf of their companies, and to see that it was carried out. A consensual element was required because it takes at least two parties to make a restrictive practice, but the consent required for the Bicester agreement was not that of senior management or the board: all that was needed was the consent of the employees who could and did make the agreement effective.

    It follows that, at any rate for the purposes of the Restrictive Trade Practices Act 1976, I am unable to accept that a prohibition at some senior level against the making of an agreement or arrangement which is ignored by the employees concerned is nonetheless sufficient to prevent the employing company from becoming a party to the agreement or arrangement when made. The Act is not concerned with what the employer says but with what the employee does in entering into business transactions in the course of his employment. The plain purpose of section 35(3) is to deter the implementation of agreements or arrangements by which the public interest is harmed, and the subsection can only achieve that purpose if it is applied to the actions of the individuals within the business organisation who make and give effect to the relevant agreement or arrangement on its behalf.

    This necessarily leads to the conclusion that if such an agreement is found to have been made without the knowledge of the employer, any steps which the employer has taken to prevent it from being made will rank only as mitigation. Liability can only be escaped by completely effective preventive measures. How great a burden the devising of such measures will cast upon individual employers will depend upon the size and nature of the particular organisation. There are, of course, many areas of business life, not only in the consumer protection field, where it has become necessary for employers to devise strict compliance procedures. If the burden is in fact intolerable then the remedy must be for Parliament to introduce a statutory defence for those who can show that they have taken all reasonable preventive measures.

  47. We have not overlooked the fact that one of Mr. Beechey’s superiors indicated the following day that the arrangement would not be implemented by Giltrap City. By then, however, the contravention had already occurred as the arrangement had already been entered into. Giltrap City was not alleged to have implemented the arrangement beyond Mr. MacKenzie’s conduct in passing on instructions to Mr. Beechey. Had there been any further implementation the case would have taken on an even more serious dimension.

  48. Although in the Pioneer Concrete case there was no reference in the corresponding statute to the conduct of the agent or servant having to be within his or her authority, the approach of the House of Lords is nevertheless highly relevant in view of the similar policy issues. It demonstrates that conduct can fall within the scope of an agent or servant’s employment even though it is expressly forbidden. The same must logically apply when the touchstone is the implied authority of a servant or agent. Anything within the scope of the employment of such a person must for present purposes be within the scope of their implied authority.

  49. It was argued for Giltrap City that those at the meeting must have realised that Mr. MacKenzie had no authority to bind Giltrap City to what was proposed. We do not consider the evidence supports that proposition, not least because what he did was within his implied authority. The Judge made no finding to the effect that those present thought that what Mr. MacKenzie was doing was outside his authority. Indeed she held that it was within Mr. MacKenzie’s implied authority to enter into the arrangement. That was a finding of fact which was open to the Judge and with which we agree.

  50. Mr. MacKenzie was acting under sufficient general authority to manage the business of Giltrap City to give him implied authority to enter into the arrangement in issue, notwithstanding that it constituted a breach of s27 of the Commerce Act. Mr. MacKenzie’s conduct was also the conduct of Giltrap City in terms of s90(2). Giltrap City therefore entered into the offending arrangement and its contention that it did not must be rejected. We add that the Judge held that if there was no actual authority, Mr. MacKenzie was acting within his apparent authority. As it is unnecessary we do not propose to determine that question. We say only that we consider it distinctly arguable that Giltrap City held Mr. MacKenzie out, by dint of the offices he held, as having authority to enter into the arrangement.

    MR. MACKENZIE'S PERSONAL POSITION

  51. As we noted at the beginning of this judgment, Mr. MacKenzie argued that as his conduct was also that of Giltrap City he could not be liable as a principal, albeit he might have some liability as a secondary party. The answer to this argument is comparatively simple and can be dealt with quite shortly. Section 27 of the Act says "no person" shall enter into a proscribed arrangement. Mr. MacKenzie did so. Hence, being a person, he contravened s27. Section 90(2) makes his conduct the conduct of Giltrap City also. There are therefore, by dint of s90(2), two principal contraveners of s27. Mr. MacKenzie does not drop out as a principal as a result of s90(2). Its effect is not to release him but to add Giltrap City either vicariously or by attribution.

  52. It is necessary to examine how s90 of the Commerce Act and its counterpart, s45 of the Fair Trading Act 1986, are couched when considering whether the conduct of the director, servant or agent of a company renders the company vicariously liable, or liable by attribution as discussed by the Privy Council in Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500. That the liability of a company may be vicarious or attributed was noted by Lord Steyn in his speech in Williams v Natural Life Health Foods Ltd (supra) at 835 A-C. When liability is by attribution there is logically less room to find that the conduct of the director, servant or agent is also that person’s conduct in their personal capacity. The question to be considered is, in short, whether the director, servant or agent is acting for the company or as the company: compare Lord Reid’s speech in Tesco Supermarkets Ltd v Nattrass [1972] AC 153 at 170. When a person is acting for the company it is easier to view his conduct as both his own and vicariously that of the company. When a person is acting as the company it is, as just noted, more difficult, at least in general terms, to regard the conduct as that of both the person so acting and the company.

  53. S90(2) speaks of conduct engaged in on behalf of a body corporate. That mode of expression suggests the company is liable vicariously rather than by attribution. The same can be said of the use of the word "also" in the statutory direction that the conduct of the director, servant or agent "shall be deemed .... to have been engaged in also by the body corporate". Not only linguistically but also in policy terms the section should be construed as making the proscribed conduct both that of the director, servant or agent and that of the company. That construction is consistent with the statement in s27 that "no person" shall enter into a proscribed arrangement.

  54. This conclusion is also consistent with what Tipping J decided in the High Court in Megavitamin Laboratories (NZ) Ltd v Commerce Commission (1995) 6 TCLR 231 at 236 and 244-245. We agree with his approach. In reaching his conclusion Tipping J expressed agreement with the suggestion to this effect by the author of Brooker’s Gault on Commercial Law Vol 1, FT 45.04 (p 215). We do likewise. There cannot in our view be any material difference in this respect between s45 of the Fair Trading Act and s90 of the Commerce Act.

  55. The conclusion to which we have come is not perhaps entirely consistent with Toohey J’s approach to a similar issue involving s84(2) of the Trade Practices Act 1974 in Australia: see TPC v Tubemakers of Australia Ltd (1983) 47 ALR 719, 739ff. Toohey J said that the presence of the word "also" in the section (as in the New Zealand section) meant that the relevant conduct of the agent became "as well" the conduct of the body corporate. That is consistent with our approach, but His Honour then added that s84(2) did not seek to make a corporation vicariously responsible. He seemed implicitly to favour the attribution approach, but for the reasons given above we are not of that view.

  56. Be that as it may, our conclusion, in short, is that both the language of the enactment and the statutory policy that "no person" shall enter into a contravening arrangement results in both principal and agent having principal liability. Hence both Mr. MacKenzie and Giltrap City contravened s27, and they both did so as principals. We therefore reject Mr. MacKenzie’s argument that he could not in the circumstances have more than secondary liability.

    OTHER POINTS

  57. Giltrap City raised issues concerning the Judge’s approach to the agreed bundle of documents and her decision to declare Mr. Felton hostile. These were matters par excellence within the trial Judge’s discretion. She dealt with them in carefully reasoned rulings which were well open to the Judge. We are left well short of being persuaded that Giltrap City suffered any injustice as a result of the Judge’s rulings. We do not consider there is anything of substance in Giltrap City’s complaints. It is unnecessary to go into further detail.

    PENALTY

  58. Giltrap City was ordered to pay a pecuniary penalty of $150,000, whereas for those companies which had admitted entering into the arrangement the amount was only $50,000. That was a figure agreed between the Commission and the individual parties, and accepted by Morris J as an appropriate figure. Mr. Reed argued that there was too great a disparity between the two amounts. He accepted that Giltrap City could claim no discount for accepting liability, but contended that the difference in the amounts was still too great. Giltrap City’s financial position was not directly before the Court as it had declined to produce details on the basis that it could afford to pay any reasonable penalty the Court might impose.

  59. Glazebrook J was mindful of the constraining effect of the $50,000 figure and but for that we infer she would have fixed a higher amount than $150,000. We have to address the submission that the Judge did not adopt a sufficiently constrained approach. We agree with Her Honour that, but for the constraining effect of the penalty imposed on the other participants, the case could well have been regarded as justifying, in Giltrap City’s case, a higher penalty than $150,000. Contraventions of this kind are hard to detect and should be firmly dealt with when established. The deterrent effect of proving a contravention must be sufficiently reinforced by the level of penalty.

  60. Without the constraining effect we consider a penalty in the vicinity of $250,000 could not have been challenged. This was a blatant price fixing arrangement by a number of car dealers. Subject to individual circumstances a substantial penalty was warranted. The level of penalty at which agreement was reached between the Commission and the other participants was in our view, at least in general terms, inadequate, even bearing in mind the need for appropriate recognition of their admissions of responsibility. It would, however, be wrong in principle for Giltrap City to have to pay demonstrably more than the sum of $50,000 necessarily adjusted to reflect the admission discount available to the others. To approach the case in any other way would be to suggest that Giltrap City was being ordered to pay more by way of penalty because it had chosen to defend the proceedings.

  61. The extra expense incurred by the Commission in having to proceed to trial against Giltrap City can and should be recognised when costs are addressed. In that respect the way Giltrap City conducted its defence by putting the Commission to exact proof, as it was entitled to do, is relevant to the level at which Giltrap City should be required to pay costs. But for penalty purposes that aspect must be put to one side.

  62. It is necessary in the public interest for the Commerce Act to be seen to have teeth when substantial contraventions are established. But in this case the Commission has tied the Court’s hands by the penalty agreement into which it entered with the other participants for the very same arrangement as that into which Giltrap City also entered. Mr. Reed elicited evidence that Giltrap City was the largest Toyota dealer in the Auckland region. After allowing for the admission discount, and the fact that it can be inferred that Giltrap City’s financial circumstances were at least as good as those of any of the other participants, we consider the most that could reasonably have been imposed on it by way of penalty was $100,000.

    FORMAL ORDERS

  63. For the reasons given the appeals brought by Giltrap City and Mr. MacKenzie against liability are dismissed. Giltrap City’s appeal against penalty is allowed. The amount fixed in that respect is reduced from $150,000 to $100,000. Costs in the High Court are to be fixed in that Court. The liability issues in this Court were much more substantial and took up much more time than those pertaining to penalty. The hearing in this Court extended over four days. Bearing in mind the result of the penalty appeal Giltrap City is ordered to pay the Commission’s costs of the appeal in the sum of $12,500. Mr. MacKenzie is to pay the Commission costs in the sum of $7,500. Any disbursements incurred by the Commission are to be paid by the appellants in the same proportion and, if necessary, are to be fixed by the Registrar.

    McGrath J

  64. I agree that the appeals of Giltrap City Ltd and Mr. MacKenzie against the findings of their breach of s27 of the Commerce Act 1975 should be dismissed. I also agree, for the reasons given in the judgment of Gault P and Tipping J, that the appeal against the amount of the pecuniary penalty imposed on Giltrap City should be allowed and a penalty of $100,000 substituted for that of $150,000. While I am in general agreement with the reasons given dismissing the liability appeals I wish to add some views of my own on three matters which arose in the course of the hearing of the appeals.

  65. The first concerns one aspect of what is necessary to constitute an "arrangement" under s27(1) of the Commerce Act 1986. It is axiomatic that for Mr. MacKenzie and others to have entered into an arrangement of an anticompetitive kind which is proscribed by s27(1) there must first be a meeting of minds leading to an agreed course of action. This can of course be inferred from the circumstances or the conduct of the parties. In the present context it was necessary for the Commerce Commission to prove that Mr. MacKenzie had been in communication with other parties in circumstances which raised an expectation as to how he would act in the future in relation to the pricing, and in particular the discounting, of Toyota vehicles. An arrangement on its ordinary meaning is something less than a legally binding agreement but must be consensual and result in something being adopted.

  66. Para [15] of the judgment of Gault P and Tipping J favours focussing the ultimate inquiry to determine whether there is an arrangement or understanding on the concepts of consensus and expectation. As those concepts themselves carry the notion of a moral (or non-legal) obligation, that in my view should remain an important touchstone for determining whether there is an arrangement or understanding under s27. This approach was reflected in the still valuable judgment of the House of Lords in British Basic Slag Ltd v Registrar of Restrictive Trading Agreements [1963] 1 WLR 727 (at p739 per Willmer LJ and pp746-747 per Diplock LJ). It is also reflected in the judgment of the High Court in this case.

  67. The notion of moral obligation is important because it provides a clear distinction between conduct that is collusive and that which is like-minded and parallel, but has an alternative commercial explanation. It is no part of the policy of s27 to catch even conscious parallelism. Lockhart J made the point of distinction in Trade Practices Commissioner v Email Ltd (1980) 43 FLR 383 at p385:

    There must be a consensus as to what must be done and not just a mere hope as to what might be done or happen.

    And at p397:

    There is a fundamental distinction between a hope or prediction of future behaviour on the one hand and the expectation of certain behaviour on the other; that is behaviour which, as a result of communication between the parties, the party restricted is at least morally bound to adopt.

  68. There is more recent affirmation by Lindgren J of the principle that a mere anticipation that as a matter of fact a party will act in a certain way is not enough to constitute an arrangement in Australian Competition and Consumer Commission v CC (New South Wales) Pty Ltd (1999) 165 ALR, 468, 500. In most cases of apparently collusive behaviour the existence of moral obligations between parties will point strongly to the existence of an arrangement or understanding. It seems to me that in the context of restrictive practices one cannot have an expectation to the necessary degree that another will perform an act unless the first person considers the other legally or morally obliged to do so.

  69. Different views as to what is necessary to constitute an arrangement will be appropriate in other statutory contexts. For example two leading taxation cases indicate that moral obligations are not necessary elements of an "arrangement" under tax legislation: Commissioner of Inland Revenue v BNZ Investments Ltd [2002] 1 NZLR 450; Lutovi Investments Pty Ltd (1978) 140 CLR 434, 444 per Gibbs and Mason JJ. The discussion of Commerce Act cases in paras [49] and [50] of the principal judgment in the BNZ Investments case is consistent with this analysis.

  70. It is perhaps arguable that, by focussing on the notion of consensus, a workable test can be applied to "arrangement" in s27 that does not import the concept of moral obligation, but nonetheless serves the policy of the Act by catching only collusive conduct. Although s27 was undoubtedly intended to be flexible, I question whether it can extend that far. A case turning on that approach will almost certainly be a very difficult one. In my view the concept of moral obligation is likely, in the great majority of cases, to be valuable in deciding whether there is an arrangement, or for that matter an ‘understanding’, in terms of s27. While an understanding is less formal than an arrangement, it shares the same essential characteristics in this context.

  71. In the present case however a decision on the moral obligation point is not required as, at their key meeting, the parties, including Mr. MacKenzie, clearly raised expectations in the minds of each other that demonstrated their mutual acceptance of obligations as to their future market behaviour in relation to discounting. Accordingly the expectation of future behaviour that is critical to the arrangement is founded on the moral obligation of the parties to act in accordance with the consensus view as to appropriate levels of discounting in relation to fleet sales in particular. The circumstances of this case were not and could not possibly be categorised merely as giving rise to anticipated but non-consensual conduct. There was on any view undoubtedly an arrangement.

  72. The second additional matter I wish to address concerns the argument of Mr. Reed QC, for Giltrap City, that it had no intention, at any stage, of acting anti-competitively and that it therefore could not be said to have entered into the anti competitive arrangement reached at the meeting of 3 June 1993. Mr. Reed emphasised that Giltrap City’s profitability at that time was based on its policy of competitive discounting of its margins on Toyota motor vehicles for the purpose of seeking high sales volume. This generated profitability through Toyota’s collateral scheme of incentive payments to dealers according to quarterly volume thresholds. Neither Mr. MacKenzie nor Giltrap City, counsel said, had any intention of joining the other dealers in price fixing, which in fact would have undermined the company’s profitability.

  73. The Judge did not accept Mr. MacKenzie’s evidence that his purpose was to have Giltrap City engage in discounting while others, abiding by the agreement, did not do so. But even if it were the case that Giltrap City had no intention of acting anti-competitively it does not follow that it did not enter into an arrangement caught by s27(1). It is plain from the language of the section that it is the purpose, or the actual or likely anti-competitive effect, of the arrangement that is the focus of s27(1) rather than the purpose or expectation of those entering into it. It must follow that a person can be a party to a s27 arrangement who does not personally intend to fix prices. The subjective intentions of individual parties to anti-competitive arrangements may differ, but the purpose of the statute is to prevent the public mischief that arises from the formation of any arrangements of this kind other than where permitted under the Act. This view of s27 is reinforced by the objective standard for an unlawful arrangement of a likely effect of substantially lessening competition in ss27(1). The wider context, in particular ss2(5)(a) and 30, clearly indicates that s27(1) was precisely drafted to focus on the provision rather than the subjective intentions of the individual parties: Port of Nelson Ltd v Commerce Commission [1996] 3 NZLR 554, 563-4 CA. Read together these provisions reflect the rigorous nature of the statutory regime regulating restrictive practices that tend substantially to lessen competition.

  74. It follows that the subjective purposes of Mr. MacKenzie, in relation to Giltrap City’s future conduct, are irrelevant to the question of liability. As already indicated, for the reasons given in the judgment of Tipping J, I agree that it was open to Glazebrook J to find that Mr. MacKenzie entered into a price fixing arrangement that was in breach of s27(1).

  75. The third matter concerns the question of whether, under s90(2) of the Act, Mr. MacKenzie’s conduct became that of Giltrap City. To my mind this raises a straightforward question of statutory interpretation which does not require analysis in terms of agency concepts. Section 90(2) is a deeming provision the function of which is to make a company, in stipulated circumstances, also liable for the actions of its employees or agents that are in breach of the Commerce Act. The scope of its reach is a question of the meaning of the words used, in the context of the Act, having regard to its purpose.

  76. In Tru Tone Ltd v Festival Records Marketing Ltd [1988] 2 NZLR 352, in a judgment delivered by Richardson J, this Court referred to the long title of the Act and observed that (p358):

    It is based on the premise that society’s resources are best allocated in a competitive market where rivalry between firms ensures maximum efficiency in the use of resources.

    Section 1A of the Act stipulates its purpose as being "to promote competition in markets for the long-term benefit of consumers within New Zealand." While this provision was inserted by the 2001 amendment, that was in substitution for the previous long title which is not materially different.

  77. The purpose of s90 is accordingly to better secure compliance with the Act’s purpose of promoting a competitive market by confining the scope for a company to obtain the benefit of restrictive practices prohibited by the Act, simply because they were undertaken by low-level employees, without the direct knowledge of the board or senior management.

  78. The idea underlying the provision is closely similar to the approach that was taken by the House of Lords in Director-General of Fair Trading v Pioneer Concrete (UK) Ltd [1995] 1 AC 456. There was no deeming provision applicable to the circumstances in the United Kingdom Restrictive Trade Practices Act 1976, but the House of Lords was able to fashion a principle of attribution from the policy of the Act whereby the conduct of a low-level employee, who had authority to determine prices but who had been forbidden from doing so in collusion, was nevertheless attributed to his employer. The employer was by this means held to be in breach of a provision in the Act. Otherwise, as Lord Templeman said at p465:

    It would allow a company to enjoy the benefit of restrictions outlawed by Parliament and the benefit of arrangements prohibited by the courts provided that the restrictions were accepted and implemented and the arrangements were negotiated by one or more employees who had been forbidden to do so by some superior employee identified in argument as a member of the ‘higher management’ of the company or by one or more directors of the company identified in argument as ‘the guiding will’ of the company.

    See also the passage to similar effect in the speech of Lord Nolan set out para [46] of the judgment of Tipping J.

  79. The key phrase in s90(2) is "the scope of the actual or apparent authority". It is unlikely that Parliament intended by those words to adopt the common law meaning of "actual or apparent authority". In the context of a statute with the general purposes identified in Tru Tone and stated in s1A there is no reason for departing from the natural and ordinary meaning of the language used.

  80. Approaching the phrase on this basis, conduct is within the scope of the actual or apparent authority of an employee, if it is an aspect of what the employee was employed to do, considered subjectively in terms of actual employment arrangements or objectively in terms of the reasonable perceptions of observers. That meaning provides a robust but principled approach for treating anti-competitive conduct by its employees and agents as that of a company, which is consonant with the purposes of the Act. In the present case it is sufficient that as general manager of Giltrap City Mr. MacKenzie had authority to make decisions on prices at which Toyota cars were sold by the company. That was part of what he was employed by Giltrap City to do whether viewed subjectively or objectively. It would be no different if he had been instructed not to do so in collusion with other dealers. In entering into the arrangement he was performing an aspect of his role and that, in my view, was sufficient for his conduct to be within the scope of his actual or apparent authority and for that reason to be deemed to be that of Giltrap City under s90(2).

  81. I agree with the formal orders proposed in the judgment of Gault P and Tipping J and in conclusion reiterate that subject only to the observations I have made in this judgment I am in full agreement with the reasons outlined in that judgment.


Cases

British Basic Slag Ltd v Registrar of Restrictive Trading Agreements [1963] 1 WLR 727; Trade Practices Commission v Nicholas Enterprises Pty Ltd (No. 2) (1979) 40 FLR 83; Morphett Arms Hotel Pty Ltd v Trade Practices Commission (1980) 30 ALR 80; Commissioner of Inland Revenue v BNZ Investments Ltd [2002] 1 NZLR 450; Rattrays Wholesale Ltd v Meredyth-Young & A’Court Ltd [1997] 2 NZLR 363; Paal Wilson & Co A/S v Partenreederei Hannah Blumenthal The Hannah Blumenthal [1983] 1 AC 854; Williams v Natural Life Health Foods Ltd [1998] 1 WLR 830; Hely-Hutchinson v Brayhead Ltd [1968] 1 QB 549; NMFM Property Pty Ltd v Citibank Ltd (2000) 107 FCR 270; Director General of Fair Trading v Pioneer Concrete (U.K.) Ltd [1995] 1 AC 456; Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500; Tesco Supermarkets Ltd v Nattrass [1972] AC 153; Megavitamin Laboratories (NZ) Ltd v Commerce Commission (1995) 6 TCLR 231; TPC v Tubemakers of Australia Ltd (1983) 47 ALR 719; Trade Practices Commissioner v Email Ltd (1980) 43 FLR 383; Australian Competition and Consumer Commission v CC (New South Wales) Pty Ltd (1999) 165 ALR, 468; Commissioner of Inland Revenue v BNZ Investments Ltd [2002] 1 NZLR 450; Lutovi Investments Pty Ltd (1978) 140 CLR 434; Port of Nelson Ltd v Commerce Commission [1996] 3 NZLR 554; Tru Tone Ltd v Festival Records Marketing Ltd [1988] 2 NZLR 352; Director-General of Fair Trading v Pioneer Concrete (UK) Ltd [1995] 1 AC 456

Legislations

Commerce Act 1986: s.27, s.30, s.80, s.90

Trade Practices Act 1974 [Australia]: s.84(2)

Authors and other references

Burrows Finn & Todd, The Law of Contract in New Zealand (2nd ed – 2002)

Bowstead & Reynolds on Agency (17th ed – 2001)

Brooker’s Gault on Commercial Law Vol 1, FT 45.04

Representations

MP Reed QC and PA Morten for Appellant in CA41/02 (instructed by Gellert Ivanson, Auckland)

BWF Brown QC and PH Rainsford for First Respondent in CA41/02 and Respondent in CA40/02 (instructed by Commerce Commission, Wellington)

JR Billington QC and MR. Dean for Second Respondent in CA41/02 and Appellant in CA40/02 (instructed by Harkness & Peterson, Wellington for Second Respondent)


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