Commerce Commission v Fujitsu General New Zealand Ltd [2017] NZDC 21512

Published 09 October 2017

Sentencing — making unsubstantiated representations — making misleading representations — Fair Trading Act 1986, ss 12A & 13 (e) — Connell v LD Nathan & Co Ltd [1990] 2 NZLR 160. The defendant company was sentenced on five representative charges of making misleading representations on it's website regarding the efficiency of it's heatpumps. This occurred at various times over a period of over two years. The representations gave the overall impression that the defendant company's heatpumps were more efficient than competitors'. The defendant company based the representations on efficiency star ratings, but accepted that those star ratings alone could not substantiate the representations. The defendant company was also sentenced on two charges of making misleading representations. The first charge related to online advertising that took place prior to the increase in the maximum penalty for the offending. The second charge related to representations made in pamphlets after the maximum penalty was raised. The misleading claims related to the value of heat generated by the defendant company's heatpumps per $1 of energy used. The representations failed to qualify or explain the conditions required to produce that outcome. The court found that a reasonable consumer would believe that they would receive the stated benefits at all times and in all conditions. In sentencing, the court took into account the objects of the legislation, the seriousness of the offending, the culpability of the defendant and the impact on those who were protected by the legislation. The court found that the charges under s 13(e) were the most serious, and assessed the defendant's culpability in relation to that offending as careless and "verging on wilfulness". The court then considered and made a reduction for totality, and gave a discount of 35% for the defendant's guilty pleas and co-operation. The defendant company was fined a total of $310,000 plus court costs of $910 and solicitor's fees of $1,750. Judgment Date: 20 September 2017.