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

Federal Court of Australia, Queensland Registry

 

File details

Taxi
Applicant B&K Holdings (Qld) Pty Ltd
(counsel: Mr M Martin QC with Ms M Barnes | solicitor: Mills Oakley Lawyers)
Respondents Garmin Australasia Pty Ltd
(Ms R Higgins SC with Mr P Strickland | solicitor: Herbert Smith Freehills)
File Number QUD 66/2018
Filing date 8 February 2018
Registry Queensland
Judge Justice Derrington
Hearing Listed for 9-20 March 2020
Court events

Administrative listing 31 July 2019

Administrative listing 22 July 2019

Administrative listing 18 July 2019

Judgment on 27 June 2019
(extension of time for applicant to file and serve lay affidavit evidence)

Judgment on 20 June 2019
(on costs relating to application for summary judgment)

Case management on 21 May 2019

Case management on 26 Feb 2019
Claims

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

B&K alleges 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

7 February 2019 (hearing 14 September 2018)
(application for summary judgment dismissed)
B&K Holdings (Qld) Pty Ltd v Garmin Australasia Pty Ltd [2019] FCA 64

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

Consideration of the summary judgments claim can be found at:

Section 46: para's 23-53

Section 45: para's 45-65

Section 47: para 66

Misleading conduct: para's 67-70

Conclusion: application for summary judgment failed in relation to all claims.
Notes Application by Garmin for summary judgment dismissed in Feb 2019

 

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