NEW ZEALAND Law and Practice Contributed by: Ellie Harrison and Jasper Fawcett, Wynn Williams Lawyers
of the defendants is absent or insolvent. The liability of immunity applicants in separate private antitrust litigation is not limited. 9.2 Contribution Liable defendants may apply to the Court for con - tributions from other defendants if they wish for the compensation payable to be apportioned. In practice, only when a defendant is unable to pay does another bear the cost of their share of the loss and a plaintiff will never recover more than the full amount awarded by the Court. Both interim and permanent injunctions are available for breaches of the Commerce Act 1986. The Com - merce Act specifically provides for injunctive relief to restrain a person from engaging in conduct that constitutes or would constitute a contravention of Part 2 (restrictive trade practices) or Part 3 (mergers and acquisitions) of the Commerce Act. Additionally, in relation to anti-competitive business acquisitions, the Court may: • impose obligations to be observed in the carrying on of any business or the safeguarding of any busi - ness or any assets of any business; and • appoint a person to conduct or supervise the conduct of any business (on such terms and with such powers as may be specified or described in the order), or in another other manner, as it thinks necessary in the circumstances of the case. 10. Other Remedies 10.1 Injunctions Availability of Injunctions The Court may grant injunctions under the Commerce Act to restrain a person from engaging in certain con - duct where the Court considers it likely that the person will engage in the conduct if the injunction is not grant - ed, whether or not the person has previously engaged in conduct of that kind, and whether or not there is an imminent danger of substantial damage to any per - son. The Court may grant injunctions to restrain a per - son from continuing to engage in certain conduct, or repeating certain conduct, whether or not it appears
to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind. Assessment of Whether to Grant Injunctive Relief In determining whether to grant injunctive relief, the Court will consider whether there is a serious ques - tion to be tried and whether the balance of conveni - ence favours the granting of the injunction. The Court will consider the issues and make an assessment of where the overall justice lies in the particular case. The key question when considering whether to grant an interim injunction is whether the possible prejudice to the respondent of granting the injunction is out - weighed by the prejudice to the public and the appli - cant if the Court declines to make the order. In determining whether to grant an interim injunc - tion, the Court is also statutorily directed to give such weight to the interests of consumers or, as the case may be, acquirers, as it deems appropriate in the cir - cumstances of the case. Damages The focus is not on whether damages are an adequate remedy, but an applicant is required to file a signed undertaking that they will comply with any order for the payment of damages to compensate the other party for any damage sustained through the injunc - tion. (Notably, under Section 88A of the Commerce Act 1986, the Commerce Commission is exempt from giving an undertaking as to damages when applying for an injunction. The Court is also not permitted to take into account that the Commission is not required to give an undertaking as to damages when consider - ing the Commission’s application.) Injunctions Without Notice Injunction can be obtained without notice. An injunc - tion without notice can only be made if it would cause undue delay or prejudice to the applicant to give notice, affects only the applicant, is related to a rou - tine matter, is expressly permitted by an enactment, or if the interests of justice require it. An applicant for an injunction without notice must take all reasonable steps and make all reasonable inquiries to ensure that the application and supporting documents contain all
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