B&K Holdings (Qld) Pty Ltd v Garmin Australasia Pty Ltd (FCA)

Federal Court of Australia
Justice Derrington

B&K Holdings (Qld) Pty Ltd v Garmin Australasia Pty Ltd [2019] FCA 64 (7 February 2019)

Issues: Misuse of market power - predatory pricing - exclusive dealing - misleading or deceptive conduct.

Catchwords

PRACTICE AND PROCEDURE – respondent’s application for summary judgment – applicant’s application for leave to amend statement of claim – application of summary judgment principles in competition law context – whether insufficient evidence for reasonable prospects of success at trial

COMPETITION – misuse of market power – predatory pricing – exclusive dealing – restrictive contracts, arrangements or understandings – misleading or deceptive conduct – discussion of whether below variable or below avoidable cost pricing is necessary or sufficient element of a claim for misuse of market power – consideration of pleading that respondent supplied goods in retail market below the price otherwise available in wholesale market to applicant retailer

File number

QUD66/2018

Overview

B&K alleged Garmin breached of s 46 by way of predatory pricing (the claim is brought pursuant to the Harper-amended s 46)

Garmin sought summary judgment on the basis that (in relation to the s 46 claim) B&K did not allege Garmin sold its products below 'avoidable cost' and in relation to the s 45 and s 47 claims the counterfactual would not produce a better market outcome. Application for summary judgment was dismissed (failing on all claims) on 7 Feb 2019 (B&K Holdings (Qld) Pty Ltd v Garmin Australasia Pty Ltd [2019] FCA 64 ➤)

Proceedings later dismissed by consent and without admissions on 18 November 2019 by Justice Derrington.