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Commerce Act 1986

Enforcement, remedies, and appeals - Business acquisitions

85A: Pecuniary penalties for contravention of undertaking

You could also call this:

"Paying a fine for breaking a promise made to the government"

Illustration for Commerce Act 1986

If you break a promise you made under section 69A, the court can order you to pay a fine to the government. You can be fined if you break the promise on purpose, try to break it, or help someone else break it. The court can also fine you if you try to stop someone from following the promise.

The court will only fine you if the business deal that the promise was about has already happened. The fine cannot be more than $500,000 for each thing you did wrong. When deciding how much to fine you, the court thinks about what you did, how you did it, and whether you tried to stop the government from checking if you kept your promise.

The court also thinks about whether you tried to stop the deal from being undone, or if you tried to limit how well the promise worked. They consider whether you or your company has done something similar before. You cannot be fined more than once for the same thing. The government can ask the court to fine you within 12 months of when you were supposed to keep your promise.

The court's decision is affected by section 85C. You can be fined if you did not keep a promise you made under section 69A, and the court can look at what you did and decide how much to fine you.

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View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM1688003.

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85B: Court may order divestiture of assets or shares in respect of contravention of undertaking, or

"Court can make you sell assets if you break a business promise"

Part 6Enforcement, remedies, and appeals
Business acquisitions

85APecuniary penalties for contravention of undertaking

  1. The court may, on the application of the Commission, order a person to pay a pecuniary penalty to the Crown if the court is satisfied that the person—

  2. has contravened an undertaking accepted under section 69A; or
    1. has attempted to contravene an undertaking accepted under section 69A; or
      1. has aided, abetted, counselled, or procured any other person to contravene an undertaking accepted under section 69A; or
        1. has induced, or attempted to induce, any other person, whether by threats or promises or otherwise, to contravene an undertaking accepted under section 69A; or
          1. has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by any other person of an undertaking accepted under section 69A; or
            1. has conspired with any other person to contravene an undertaking accepted under section 69A.

              1. However, the court may only make an order under subsection (1) if the acquisition to which the undertaking relates has proceeded.

              2. The amount of pecuniary penalty must not, in respect of each act or omission, exceed $500,000.

              3. In setting the amount of pecuniary penalty, the court must take into account all of the following matters:

              4. the nature and extent of the contravention:
                1. the circumstances in which the contravention took place:
                  1. whether the person has obstructed or hindered the Commission in any attempt of the Commission to obtain compliance with the undertaking:
                    1. whether the person has taken any steps with the intention of—
                      1. impeding the disposal of assets or shares in accordance with the undertaking; or
                        1. limiting the effectiveness of the undertaking in preventing a substantial lessening of competition in a market:
                        2. whether the person or an interconnected body corporate has previously been found by the court in proceedings under this Part to have engaged in similar conduct.

                          1. Subsection (4) is subject to section 85C.

                          2. A person may not be liable to more than 1 pecuniary penalty in respect of the same conduct.

                          3. An application under this section may be made at any time within 12 months from the date on which the relevant obligation under the undertaking was required to be met.

                          Notes
                          • Section 85A: inserted, on (applying only to undertakings under section 69A that are accepted in relation to clearances given or authorisations granted on notices under section 66 or 67 that are registered after that date), by section 14(1) of the Commerce Amendment Act 2008 (2008 No 70).