Re Peter Williamson Pty Ltd v Capitol Motors Ltd [1982] FCA 79 (20 May 1982)

FEDERAL COURT OF AUSTRALIA

Re: PETER WILLIAMSON PTY. LTD.
And: CAPITOL MOTORS LTD.
No. G. 191 of 1981
Trade Practices

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Franki J.

CATCHWORDS

Trade Practices - resale price maintenance - refusal to supply goods - recommended price - whether recommended price was price specified by supplier as the price below which the goods are not to be sold - standard of proof.

Trade Practices Act 1974 ss.4F, 48, 96(1) and (3) (d) (ii), 100(1)

HEARING

SYDNEY
20:5:1982

ORDER

1. The application is dismissed.

2. The applicant pay the respondent's costs.

DECISION

The applicant, Peter Williamson Pty. Limited, a retailer of motor vehicles, was appointed by the respondent, Capitol Motors Limited, as a dealer in BMW motor vehicles in the Liverpool and certain adjacent districts by an agreement of 1 January 1981.

BMW motor vehicles are imported into Australia by BMW Australia Ltd. and the respondent is the distributor of BMW vehicles and parts in New South Wales.

Clause 14(1) of the agreement provided that the applicant's appointment should continue until terminated by the applicant or the respondent giving to the other 30 days notice in writing of its desire to terminate the appointment and clause 14(2) provided for termination upon certain specified events.

By letter of 2 December 1981 the respondent purported to give notice to the applicant under clause 14(1) of the agreement and, after correspondence between the solicitors for the parties, a further notice was given on 16 December 1981 whereby the respondent gave notice "of its desire to terminate the Dealer's Appointment, such termination to have effect 30 days after receipt of this notice". The applicant pleaded that this notice was no more than a purported termination but the respondent pleaded that the agreement was validly and effectively terminated by the letter of 16 December 1981. The present action was commenced on 21 December 1981 and on 5 January 1982 the respondent, without prejudice and without admissions, agreed to continue to supply BMW motor vehicles, parts and accessories until the determination of the action or further order.

The applicant pleaded that the respondent threatened to withhold the supply of BMW motor vehicles, parts and accessories in contravention of s.48 of the Trade Practices Act 1974, ("the Act") which prohibits a corporation from engaging in the practice of resale price maintenance. Acts constituting engaging in resale price maintenance are set out in s.96 of the Act. I set out s.96(1) and (3)(d)(ii):

"96. (1) Subject to this Part, a corporation (in this section called 'the supplier') engages in the practice of resale price maintenance if that corporation does an act referred to in any of the paragraphs of sub-section (3).

. . .

(3) The acts referred to in sub-sections (1) . . . are the following:

. . .

(d) the supplier withholding the supply of goods to a second person for the reason that the second person-

(i) . . .
(ii) has sold, or is likely to sell, goods supplied to him by the supplier, . . . at a price less than a price specified by the supplier as the price below which the goods are not to be sold;

The applicant pleaded that the respondent had no commercial reason or

reasons or commercial justification for attempting to terminate the agreement and that the applicant had caused several new BMW motor vehicles to be sold at less than the respondent's suggested or recommended retail prices and that the respondent had become aware of this in the 6 months immediately preceding the letter of 16 December 1981.

The respondent pleaded that the applicant had not fulfilled its obligations under the agreement and that the termination was justified by a number of commercial considerations. It was also pleaded that BMW Australia Ltd. had directed the respondent to terminate the agreement.

The applicant pleaded that no complaint had been made to it concerning the performance of its obligations under the agreement. The respondent pleaded only one complaint which was made about September 1981. Apart from recommended or suggested price lists there was no evidence of any written or oral communication by the respondent to the applicant or any other dealer concerning prices.

The applicant conducted its case by relying on the pleadings and documentary evidence. The applicant did not call Mr. Peter Williamson, who was the Chief Executive of the applicant, or any other officer of that company.

The applicant relies upon s.96(1) and (3)(d)(ii). A critical requirement in the applicant's case is that the reason (as construed with the help of s.4F(b) of the Act) for withholding the supply of goods was that the goods were sold or likely to be sold at "a price less than a price specified by the supplier as the price below which the goods are not to be sold".

It is essential for the applicant to show that not only has a price been specified but specified as the price "below which the goods are not to be sold".

In my opinion this case is to be determined by a consideration of the expression "a price specified by the supplier as the price below which the goods are not to be sold" in the particular circumstances of this case.

Senior Counsel for the applicant submitted that a recommended price was converted by a refusal to supply into a price specified as the price below which the goods are not to be sold.

Several documents were tendered which the respondent had sent to its dealers. They were entitled in various ways; for example "Vehicle/option Retail Price List", "Suggested Retail Price List with Dealer Margins", "Recommended Retail Price List", "Suggested Retail Price List" and "Option Price List".

Clause 20 of the dealer agreement provided:

"All prices indicated or specified by the Company for the sale of goods as covered by this Agreement, whether in price lists or other documents issued from time to time by the Company to the Dealer or otherwise, are to be regarded as recommendations only and there is no obligation on the part of the Dealer to comply with such recommendations provided however, that the dealer shall not charge a price in excess of the recommended price."

There was no evidence that any of the prices in the price lists before the court were anything other than bona fide recommended prices. The evidence showed that substantial discounts of varying amounts were allowed regularly by dealers in the Sydney metropolitan area, including the respondent at its two retail outlets. One dealer, a Mr. Dobson, who had relinquished his franchise at the time of giving evidence, was called by the respondent and there was no suggestion that he had regarded any price lists as other than recommended price lists and, as I have said, Mr. Williamson did not give evidence about the way he regarded the price lists.

I find that there was no communication to the applicant directly or indirectly that any price in any price list was more than a bona fide recommended or suggested price.

There was no evidence of any requests by the respondent that these prices be adhered to or any threats of action if they were not. Indeed as I have said, quite significant discounts were habitually allowed by dealers.

I consider that it is clear that a recommended price may be a "specified" price but nevertheless not "a price specified by the supplier as the price below which the goods are not to be sold".

The applicant relied on Mikasa (N.S.W.) Pty. Ltd. v. Festival Stores [1972] HCA 69; (1972) 127 C.L.R. 617. Mikasa had a long standing practice of refusing to supply discount stores of which Festival Stores was one. Mikasa had always made this clear, not once but on a number of occasions. The Commonwealth Industrial Court, the court of first instance, found as a fact, that the only reason Mikasa declined to supply goods was because Festival Stores was likely to sell those goods at less than the price in Mikasa's catalogue and that price, although a recommended price, was in the circumstances of the case, a price specified as the price below which goods were not to be sold.

In the Commonwealth Industrial Court[1972] HCA 69; , (1971) 18 F.L.R. 260, Spicer C.J. and Smithers J. in a joint judgment, set out the facts in considerable detail, and at p.268 said:

"The question has been raised as to whether, for the purposes of the Act, the notification by a wholesaler to a retailer of a stated price as a retail price in association with a notification that that price is merely a recommended price and is not binding upon the retailer is, in itself, or may be, according to surrounding circumstances, a specification of the price below which the goods are not to be sold."

In the circumstances of that case it was easy to conclude that the recommended price was not only a specified price but a price specified by the supplier as the price below which the goods were not to be sold.

I have some difficulty in deciding how far the judgments in the High Court are authority for any proposition viewed against a different factual background. Although the case was decided under an earlier Act, there is no doubt that it is authority for the proposition that a price may be specified by being recommended. But is that case an authority for the proposition that, in the absence of other relevant circumstances, a refusal to supply always converts a recommended price into a price specified by the supplier as the price below which goods are not to be sold?

In my opinion it may be strongly argued that Stephen J. took such a view. He said at p.660:

"It is enough that the appellant had established minimum retail prices and had announced them and that it then refused to supply the respondents for the reason that, as it knew, they intended not to adhere to those prices. This conduct on the appellant's part constituted the withholding of the supply of goods for the reason that the respondents were likely to resell them at a price less than the price which, by its very behaviour towards the respondents, the appellant showed to be a price below which it would not permit its goods to be resold. The refusal operated to convert what I shall assume, in favour of the appellant, to have been an unobjectionable recommended price into a 'price below which the goods are not to be sold'. Because it is the refusal which effects this conversion it would seem that it is only immediately upon, not simultaneously with, the making of a first refusal that the conversion occurs; in the present case this does not arise since there was a history of requests for supply and refusals of those requests, which refusals were for the reason referred to in the sub-paragraph."

His Honour used the phrase "by its very behaviour towards the respondents" and the judgment does contain some phrases which may tie it to the particular facts, but I doubt whether it is so tied. Walsh J. at pp.647-648 may have expressed the same view but the views there expressed were based upon the findings made by the Commonwealth Industrial Court.

Menzies J., with whom Gibbs J., as he then was, agreed, in my opinion, based his judgment on the particular facts of the case.

Barwick C.J. with whom McTiernan J. agreed, at p.636, took the view that the recommended price was a price specified as that below which the goods were not to be sold. In so doing his Honour said: "Accepting that inference, . . . ". His Honour made it clear that the inference to which he referred was that the way the prices were recommended was intended to inform retail customers that although there may be no legal obligation by virtue of the purchase of the goods to sell at the recommended price, the failure to observe the recommended price could be visited with other consequences. That judgment appears to me to depend on the particular facts.

I do not consider that Mikasa supports the proposition that in all cases a refusal to supply after a recommendation of a price converts that price into a price specified by the supplier as the price below which the goods are not to be sold.

In my opinion the evidence in the case before me does not justify a finding that the suggested or recommended price in any price list of the respondent was in any real sense the specified price below which the goods were not to be sold.

Senior counsel also referred to various cases in this court and in particular to T.P.C. v. Pye Industries Sales Pty. Ltd. (1978) 2 A.T.P.R. 40-088, T.P.C. v. Stihl Chain Saws (Aust.) Pty. Ltd. (1979) 2 A.T.P.R. 40-091 and T.P.C. v. Bata Shoe Co. of Australia Pty. Ltd. (1980) 3 A.T.P.R. 40-161. It is clear that a price can be the specified price below which goods are not to be sold without being specified in precise terms. In Pye Industries, at p.17,854, St. John J. held that what was called "a go price", and which could vary $10 or $15 up or down, was such a price.

In Bata, Lockhart J., at p.42,274, held that it was sufficient that a price be specified as not less than that charged by the other established retailers.

With respect, I agree with the approach adopted in those two cases.

The applicant also sought to rely on s.100(1) of the Act which provides:

"100. (1) Where, in proceedings under this Act by a person (in this section referred to as 'the plaintiff') against another person (in this section referred to as 'the defendant'), it is claimed that the defendant has engaged in the practice of resale price maintenance and it is

established that -

(a) the defendant has acted, in relation to the plaintiff, as mentioned in paragraph 98(1)(a),(b), (c) or (d);

(b) during a period ending immediately before the time when the defendant so acted, the defendant had been supplying goods of the kind withheld to the plaintiff or to another person carrying on a business similar to that of the plaintiff; and

(c) during the period of 6 months immediately before the time when the defendant so acted, the defendant became aware of a matter or circumstance capable of constituting a reason referred to in paragraph 96(3)(d) or (e) for the defendant's so acting,

then, subject to sub-section (2), it shall be presumed, unless the contrary is established, that that matter or circumstance was the reason for the defendant's so acting."

Two questions here arise. The first is whether "the reason" must be read as

the "only reason" and the second is what facts will satisfy the words "capable of constituting a reason".

Whether or not s.4F applies to s.100, I consider that the views expressed in Mikasa by Barwick C.J. at p.635, by Menzies J. at pp.641-642 and by Stephen J. at pp.656-658 in relation to the words "the reason" in a different section of a similar Act are authority for reading the words "the reason" as "a substantial reason".

It is necessary then to consider whether the respondent became aware of a matter or circumstance capable of constituting a reason within s.96(3)(d). In my opinion this requires that at the time of the matter or circumstance alleged the respondent must have specified a price as the price below which goods were not to be sold. For the reasons I have stated I do not consider any such price was ever specified.

If I had accepted the submission that the refusal of supply converted a recommended price into the specified price below which goods were not to be sold the position would still be that, at the time the respondent became aware of any relevant matter or circumstances, no such price had been specified.

In my opinion s.100 does not assist the applicant. Although it is intended to facilitate proof of contravention of s.96 I do not consider that it should be construed loosely.

The conclusions that I have expressed are sufficient to conclude the matter before me but in case the view of the law which I have expressed is not correct I will make some further findings of fact and consider certain other questions of law.

It is necessary to consider the standard of proof required of the facts which the applicant needs to establish. The applicant seeks only an injunction and clearly the standard of proof is the civil standard, namely the balance of probabilities. However, a finding of a contravention of s.48 can, in appropriate proceedings, be visited with a penalty of up to $250,000. (s.76 of the Act). This penalty is five times as great as that provided for a contravention of those sections of Part V which constitute criminal offences where any allegation of contravention is to be tested by the requirement that the court must be satisfied beyond reasonable doubt of the guilt of the accused. In addition any individual who, inter alia, has aided or abetted such a contravention or been in any way, directly or indirectly, knowingly concerned in, or party to, such a contravention becomes liable to a penalty of up to $50,000. This is five times the penalty for the commission of a criminal offence dealt with in Part V.

It is necessary to pay regard to the gravity of the issues in considering the standard of proof. (Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 C.L.R. 336). The standard of proof referred to in Briginshaw v. Briginshaw was referred to in this court by Northrop J. in T.P.C. v. Ansett Transport Industries (Operations) Pty. Ltd. (1978) 2 A.T.P.R. 40-071 at p.17,720; by Fisher J. in T.P.C. v. Nicholas Enterprises Pty. Ltd. (1979) 2 A.T.P.R. 40-126 at p.18,352; by me in T.P.C. v. Simpson Pope Ltd. (1980) 3 A.T.P.R. 40-169 at p.42,333 and by Keely J. in Cool and Sons Pty. Ltd. v. O'Brien Glass Industries Ltd. (1981) 3 A.T.P.R. 40-220 at p.42,996.

I respectfully adopt the way Fisher J. expressed the relevant test in T.P.C. v. Nicholas Enterprises Pty. Ltd., supra, at p. 18,353:

"It seems to me therefore that insofar as these proceedings are civil in nature, I should be more prepared to draw the inference sought by the plaintiff than if they were criminal. However again it is appropriate that I have regard to the gravity of the matters in issue."

An injunction can be granted pursuant to s.80(5) whether or not a respondent has previously engaged in conduct in contravention of Part IV but, in the case before me, this course would not be appropriate unless I was satisfied that s.48 had been contravened.

I pass now to the question, assuming contrary to the finding which I have made that the price has been specified below which the goods are not to be sold, whether supply has been withheld for a reason proscribed by s.96(3)(d)(ii).

Section 4F(b) has the effect of substituting for the words "the reason" in s.96(3)(d) the words "reasons that include a reason that is a substantial reason". It is therefore necessary to consider the meaning of the word "substantial" bearing in mind that it is used in connection with the definition of an essential ingredient in an Act, the contravention of which may be expected to have grave consequences.

The meaning of this word in s.45D of the Act in relation to the expression "substantial loss or damage" was considered in Tillmanns Butcheries Pty. Ltd. v. The Australasian Meat Industry Employees' Union (1979) 2 A.T.P.R. 40-138. Deane J., at p.18,500, pointed out that the word "substantial" was a word not only susceptible of ambiguity but was calculated to conceal a lack of precision.

In considering the meaning of the word "substantial" in s.90(5) in the phrase "a substantial benefit to the public" the Trade Practices Tribunal presided over by Woodward J. in Re Queensland Co-operative Milling Association Ltd. and Defiance Holdings Ltd. (1976) 1 A.T.P.R. 40-012 at p.17,243, expressed the view that to be substantial the benefit "must be 'considerable', 'large' or 'weighty'. It need not, it is plain, be necessarily capable of quantitative assessment; . . . ". This was not a decision upon s.4F nor was it a decision of the court, but it was a decision of the tribunal presided over by a Judge of the court (s.42 of the Act) and so proper regard should be paid to it. It was followed by the Trade Practices Tribunal presided over by Northrop J. in Re Howard Smith Industries Pty. Ltd. and Adelaide Steamship Industries Pty. Ltd. (1977) 1 A.T.P.R. 40-023 at pp.17,334-17,335.

The word was also considered by Keely J. in Cool and Sons Pty. Ltd. v. O'Brien Glass Industries Ltd., supra, at p.43,003, as it appeared in the phrase "substantial lessening of competition" in s.47(1) of the Act. Here his Honour expressed the view that the word "substantial" was not intended to convey the idea of some proportion of the whole of the actual or potential competition in the relevant market but that the lessening of competition must not be insubstantial or nominal but must be real or of substance.

The act under consideration in Mikasa was a little different and did not contain the word "substantial". At p.635, Barwick C.J. said:

"The likelihood of price cutting is not required, in my opinion, to be the predominant reason; it is enough if it is an operative reason, that is to say, a substantial reason in the totality of reasons for the withholding of the supply".

In my opinion it is not possible to place precise limits on the meaning of the word 'substantial' in s.4F. I consider that the proscribed reason in s.96(3)(d) must be one which is of real significance in the decision to withhold supply of goods, or to adopt the words of Barwick C.J., an "operative" reason.

Assuming, contrary to the views I have expressed, that the refusal of supply converted a recommended price into a price specified by the respondent as the price below which goods must not be sold the critical question is whether supply was withheld for reasons which included, as an operative reason, or one of real significance, that the applicant had sold goods at a price below that "specified by the supplier as the price below which the goods are not to be sold.

There is no doubt on any view that the respondent did not object to BMW vehicles being sold below the recommended prices. It is clear beyond doubt the respondent wished dealers to be competitive, to do deals, and to allow discounts. No suggestion to the contrary was made.

It was submitted by the applicant that if there was a price below the recommended price which was likely to cause dealers in the Sydney metropolitan area to complain then that price (not the recommended price) was the price specified by the respondent as the price below which the goods were not to be sold.

Alternatively it might be suggested that the prices specified by recommendation should be read as such lesser prices as where (a) arrived at by looking at discounts which Mr. Evans was authorised to give, with or without discussions with his department manager, or (b) offered by Mr. Dobson or (c) generally offered by dealers in the Sydney metropolitan area, or (d) substantially below the recommended price or (e) determined in some other way.

Section 96(3)(d)(ii) requires a price to be ascertainable as one "specified by the supplier as the price below which the goods are not to be sold".

I do not think a price can be the "specified" price within s.96(3)(d)(ii) unless it can be defined. I accept that it may be defined as, eg. the "go price" or as a price within a range. I cannot fix any price in this case which satisfies this test.

I set out the names of various persons from whom affidavits were filed on behalf of the respondent and who were cross-examined.

The officers of the respondent were: Mr. Mortimer, Chief Executive and a Director; Mr. Smith, State Manager-BMW and Mr. Evans, a salesman of new BMW cars. Officers of BMW Australia Ltd. were: Mr. Meatchem, Managing Director; Mr. Palmer, National Sales Manager and Mr. Leonard, (no longer employed by that company) Dealer Development Manager.

Mr. Meatchem, although he said in evidence that he was not a friend of Mr. Williamson, was clearly at all times favourably disposed to him and was in favour of his appointment by the respondent as a dealer in January 1981. Mr. Mortimer always held a different view of Mr. Williamson and opposed his appointment.

It appears that on 5 September 1981 a used car dealer, Thomas Aust. Vehicle Co., advertised in the Sydney Morning Herald a BMW model 733iA car "Brand New" and as unregistered, an unwanted present and stated that its purchase offered a saving of over $6,000 and that it carried new car terms and full warranty. Mr. Mortimer asked Mr. Smith to make enquiries. Mr. Mortimer said that he had not known of any new BMW vehicle being advertised by a used car dealer before. Mr. Smith arranged for enquiries to be made and it appeared that this vehicle was one which had been sold by the applicant. The applicant was obliged to furnish to BMW Australia a document entitled, Record of Delivery, and in this document the applicant described the owner of the car as a Mrs. C.A. Meades and the address was that of Mr. Williamson's home. It turned out that this lady was Mr. Williamson's wife. The apparent deception involved in this statement was regarded very seriously by Mr. Mortimer.

In an internal file note of 11 September 1981 Mr. Smith recorded, inter alia, that: "It would appear that Peter Williamson has done a special multi-car package arrangement with this used car dealer or alternatively a loss transfer deal". The note then makes certain reference to cost price, advertised price, dealer profit and the effect on resale values.

In October 1981 Thomas Aust. Vehicle Co. advertised two further unregistered BMW vehicles each described as "unwanted present". On 17 November 1981 Mr. Mortimer wrote to Mr. Palmer pointing out the advertisements by Thomas Aust. Vehicle Co. and saying that it had been ascertained that at least three of these vehicles had been obtained from the applicant. The letter also referred to complaints from four dealers and of the difficulty expressed by three of the dealers of matching the price offered by Thomas Aust. Vehicle Co.

Reference was also made to discount advertising having an effect on the image of the product and that disciplinary action should be considered.

The applicant tendered the issue of whether any commercial reasons existed for the refusal of supply. I do not think it is necessary to deal in detail with all the reasons which the respondent put forward as being relevant. To some extent this is a false issue, although perhaps necessary background material against which to judge the respondent's conduct.

Mr. Mortimer had been opposed to the appointment of the applicant because he doubted Mr. Williamson's loyalty and he decided to monitor the applicant's performance carefully.

There is no doubt that Mr. Mortimer was dissatisfied with the number of BMW vehicles sold by the applicant. I am prepared to assume that regard should be had to the figure of 5 vehicles per month noted in the dealer agreement of 1 January 1981. I am also satisfied that in January and February 1981 difficulty in reaching an anticipated number of sales could be expected because the relationship between the parties only commenced in January.

On 31 March 1981 Mr. Smith wrote to Mr. Williamson pointing out that about 6 vehicles per month was a realistic figure in the eyes of BMW Australia Ltd. It seems that the respondent had in mind a figure of about 8 vehicles per month and this figure was mentioned as a target in a letter from the respondent to the applicant of 9 May 1981. A complaint about the sales being achieved by the applicant was made by Mr. Mortimer to Mr. Meatchem in a letter of 6 April 1981. As a result a representative of the BMW Australia Ltd. visited the applicant.

At the beginning of September 1981 Mr. Smith noticed that a monthly sales return which dealers submitted showed that in August the applicant reported no sales of BMW vehicles. Mr. Smith spoke to Mr. Williamson about that.

I consider that Mr. Mortimer in his own mind, and perhaps to some extent because he was not favourably disposed to Mr. Williamson, was dissatisfied with the sales of the applicant at the time when he learnt of the transactions with the used car company.

Mr. Palmer and Mr. Mortimer discussed the sale to the used car company by telephone about 10 November 1981 and Mr. Palmer said he believed it was "a termination offence".

On 11 November 1981 Mr. Mortimer and Mr. Leonard met and Mr. Leonard mentioned that a Mr. Crott was seeking to be appointed a dealer. Mr. Mortimer thought this was a good idea, but because of import quota difficulties said that it would be necessary to terminate a metropolitan dealer if Mr. Crott was to be appointed. Mr. Mortimer expressed the view that the applicant was the worst performer of the Sydney metropolitan dealers and that the applicant's agreement should be terminated. Mr. Palmer agreed.

Mr. Mortimer went overseas on 22 November 1981 and returned to Australia on 10 December 1981. Mr. Crott was appointed a dealer with effect from 1 January 1982. Mr. Meatchem approved of the proposed termination. I consider that the applicant's dealership was terminated by the respondent with the approval of BMW Australia Ltd.

I do not need to consider, in detail, the grounds of dissatisfaction which were alleged other than that of the sales to Thomas Aust. Vehicle Co. The other grounds were, in substance, that the sales performance of the applicant was unsatisfactory, that the applicant failed to display a proper professional approach to its obligations, that the showroom premises were inadequate, that Mr. Williamson had absented himself from the dealership, that Mr. Williamson had failed to attend a visit to the factory in Germany where BMW cars were manufactured, that it was necessary to terminate one dealer if Mr. Crott was to be appointed a dealer, that Mr. Williamson took a disloyal attitude in relation to motor racing, that there was a problem with spare parts and that the applicant had refused to accept a particular vehicle as a demonstrator.

I am prepared to draw the inference that, with the exception of the refusal to accept the particular vehicle as a demonstrator, all these matters and, in particular, what he believed to be the applicant's sales performance, were in Mr. Mortimer's mind at the time of his recommendation to Mr. Palmer on 11 November 1981 and that they all influenced his decision. I also bear in mind that Mr. Mortimer was critical of Mr. Williamson and had not wished the applicant to be appointed.

Mr. Mortimer recommended the termination of the applicant's dealership and I consider Mr. Mortimer's reasons for this recommendation are the most relevant factors in deciding to what extent, if any, the question of price was involved. I find that Mr. Mortimer was very concerned to ensure that the dealer network "which had been built up should remain viable." This would ensure not only adequate selling points for BMW vehicles being maintained by dealers at appropriate locations but also proper maintenance and adequate supplies of spare parts being available at the premises of those dealers. Mr. Mortimer was also very concerned that the "image" of BMW vehicles should not be destroyed. These vehicles were in the top price range and required specialised maintenance. Mr. Mortimer was fearful also that sales of BMW vehicles from a used car yard were likely to have an adverse effect on the "image", bearing in mind the lack of other relevant facilities in such yards for BMW cars.

There is no doubt that price was a factor but the price at which a dealer sold BMW cars did not concern Mr. Mortimer unless that price was so low that it might be expected, as he said, to cause the dealer to "go broke" or such as to put the dealer "into a loss situation". The determination of such a price would depend on the particular dealer's overhead costs and cannot be ascertained from the evidence in this case. The important factor was that the business of that particular dealer should remain a "viable proposition".

I stress that it is quite unreal to regard any recommended price in this case as the price specified by the respondent below which the goods were not to be sold. It is quite clear that BMW vehicles could be sold by any dealers at prices below those prices without the respondent being at all concerned.

It is appropriate to draw attention to the expression "a price less than a price specified by the supplier as the price below which goods are not to be sold" in s.96(3)(d)(ii). The same expression appears in s.96(3)(e)(ii) but in s.96(3)(a), s.96(3)(b), s.96(3)(c) and s.96(3)(e)(i) the corresponding expression is "at a price less than a price specified by the supplier". Section 96(7) deals with the construction of the expressions "a price less than a price specified by the supplier" and "a price below which goods are not to be sold". My attention was not directed to the significance, if any, of the difference between the expressions used in dealing with the specification of price in s.96.

Finally let me assume against the respondent, and contrary to my earlier conclusion, that the respondent had specified a price as the price below which the goods were not to be sold. I cannot see any way of determining such a price in any real sense. Then I have to bear in mind the serious nature of the conduct alleged and that, if I can arrive artifically in some way at some price specified as the price below which the goods were not to be sold, I still have to decide whether, amongst the reasons for refusing supply, a substantial reason was that sales took place below that artificially constructed price. I find myself unable to arrive at such an artificially constructed price and so I have no price against which to test the respondent's conduct.

I dismiss the application and order the applicant to pay the respondent's costs.