New Zealand Acts

COMMERCE AMENDMENT ACT 2018 - SECT 12

12 Sections 74AA to 74D and cross-heading replaced

Replace sections 74AA to 74D and the cross-heading above section 74AA with:

74A Commission may accept undertakings

1 The Commission may accept a written undertaking given by, or on behalf of, a person in connection with any matter relating to the enforcement of this Act.

2 The person may withdraw or vary the undertaking with the consent of the Commission.

3 See section 69A, which overrides this section in respect of undertakings relating to clearances or authorisations for business acquisitions.

Note: 1986 No 121 s 46A

74B Matters included in undertakings

1 An undertaking under section 74A may, without limitation, include either or both of the following:

a) an undertaking to pay compensation to any person or otherwise take action to avoid, remedy, or mitigate any actual or likely adverse effects arising from a contravention, or possible contravention, of this Act:

b) an undertaking to pay to the Commission all or part of the Commission’s costs incurred in investigating, or bringing proceedings in relation to, a contravention, or possible contravention, of this Act.

2 However, the Commission may accept an undertaking relating to the enforcement of section 47 only if the undertaking is to dispose of assets or shares specified in the undertaking.

3 If the Commission accepts an undertaking that involves payment of compensation to any person, or payment of the Commission’s costs, the Commission must make the following information publicly available:

a) the amount of the compensation, or of the Commission’s costs, that has been undertaken to be paid; and

b) a brief description of the circumstances and nature of the contravention or possible contravention of this Act to which the undertaking relates.

4 In this section, a
"contravention" means any of the following:

a) an actual contravention:

b) aiding, abetting, counselling, or procuring a contravention:

c) inducing a contravention, whether by threats, promises, or otherwise:

d) being in any way, directly or indirectly, knowingly concerned in, or party to, a contravention:

e) conspiring with any other person in a contravention.

74C Enforcement of undertakings

1 If the Commission considers that a person has breached an undertaking given under section 74A , the Commission may apply to the High Court for an order under subsection (2) .

2 The court may make any 1 or more of the following orders if it is satisfied that the person has breached a term of the undertaking:

a) an order directing the person to comply with the term:

b) an order directing the person to pay to the Crown an amount not exceeding the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach:

c) any order that the court thinks appropriate that directs the person to compensate any other person who has suffered loss or damage as a result of the breach:

d) an order for any consequential relief that the court thinks appropriate.

Note: 1986 No 121 s 46B