Australian Competition and Consumer Commission v Tooltechnic Systems (Aust) Pty Ltd [2007] FCA 432

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Tooltechnic Systems (Aust) Pty Ltd [2007] FCA 432 AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v TOOLTECHNIC SYSTEMS (AUST) PTY LTD (ACN 090 458 576) QUD 30 OF 2007

KIEFEL J

21 MARCH 2007

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QUD 30 OF 2007

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Applicant

AND: TOOLTECHNIC SYSTEMS (AUST) PTY LTD (ACN 090 458 576)

Respondent

JUDGE: KIEFEL J DATE OF ORDER: 21 MARCH 2007

WHERE MADE: BRISBANE

THE COURT NOTES THAT:

1. The respondent has given an undertaking to the applicant pursuant to section 87B of the Trade Practices Act 1974 (Cth) in the terms of annexure A. 2. The respondent's managing director, Holger Schulz, has given an undertaking to the applicant pursuant to section 87B of the Trade Practices Act 1974 (Cth) in the terms of annexure B. THE COURT DECLARES THAT: 3. The respondent engaged in the practice of resale price maintenance in contravention of section 48 of the Trade Practices Act 1974 (Cth) in or about November or December 2001 by attempting to induce Haltipi Pty Ltd trading as Power Tool Services (Power Tool Services) not to sell power tools supplied by the respondent and known by the brand 'Festo' or 'Festool' (Festool Products) at a price less than that specified by the respondent in its annual price list. 4. The respondent engaged in the practice of resale price maintenance in contravention of section 48 of the Trade Practices Act 1974 (Cth) in or about May 2002 by attempting to induce Power Tool Services not to sell Festool Products at a price less than that specified by the respondent in its annual price list. 5. The respondent engaged in the practice of resale price maintenance in contravention of section 48 of the Trade Practices Act 1974 (Cth) in or about May 2002 by attempting to induce Tradetools Direct Pty Ltd not to sell Festool Products at a price less than that specified by the respondent in its annual price list. THE COURT ORDERS THAT: 6. Pursuant to section 76 of the Trade Practices Act 1974 (Cth), the respondent pay to the Commonwealth of Australia a pecuniary penalty of $125,000 within 28 days of the date of this order. THE COURT ORDERS BY CONSENT THAT: 7. Pursuant to section 80 of the Trade Practices Act 1974 (Cth), the respondent be restrained, for a period of 3 years from the date of this order from, by itself, its servants, agents or otherwise howsoever, in its wholesale supply or potential supply of Festool Products to retailers of Festool Products (Festool Retailers), making statements to Festool Retailers or prospective Festool Retailers to the effect that: (a) they cannot sell Festool Products at a price less than that specified by the respondent or on behalf of the respondent; (b) they cannot sell Festool Products at a price less than the 'recommended trade price' specified from time to time in the respondent's annual price list; (c) they are not permitted to discount Festool Products; (d) they will or may be treated less favourably by the respondent if they sell Festool Products at a price less than that specified by the respondent or on behalf of the respondent; or (e) they will or may lose some or all of their wholesale discount if they sell Festool Products at a price less than that specified by the respondent or on behalf of the respondent. 8. The respondent pay the applicant's costs of and incidental to the proceeding fixed in the amount of $25,000 within 28 days of the date of this order. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.