NZCC granted leave to appeal High Court decision re Woolworths acquisition

On 31 January 2008, the New Zealand Commerce Commission was granted leave to appeal the earlier decision of the High Court that granted a clearance for Woolworths to proceed in its bid for The Warehouse Group. Woolworths is a large supermarket chain and The Warehouse is a general merchandise retailer that has recently placed fresh food in three of its outlets.

In mid 2007, the Commerce Commission had refused to clear the merger on the grounds that it would substantially lessen competition in the local markets in which The Warehouse sells fresh food. This decision was overturned by the High Court on appeal. In granting the Commission leave to appeal this decision, the High Court granted a stay of its clearance decision – but only until the end of February. This means that the appeal must be heard this month.

Frontier (Australia) has been retained by Bell Gully (solicitors for Woolworths) throughout all stages of this process. Frontier provided the Commission with detailed empirical work at the time of the initial application for clearance. Philip Williams of Frontier gave evidence before the High Court at the appeal – and, more recently, at the application for a stay. In the latter proceedings, counsel for Woolworths presented estimates by Frontier of the costs and benefits of granting a prolonged stay of the decision by the High Court to clear the acquisition.

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