Myer drawing a line in the sand
And with good reason. Neither wants to deal with the retaliatory battle breaking out.
Fashion brands do change camps between the two big retailers but only when contracts have expired.
Thus the legal case around glamour apparel designer Kym Ellery - who ditched Myer halfway though her three-year contract in favour of a new exclusive deal with David Jones - will be closely watched as it plays out this week in the Victorian Supreme Court.
Make no mistake, this is about money. But it is not about the amount of sales that Ellery contributed to Myer's sales. Indeed, one of the designer's beefs was that not enough stock was being moved through the department store.
It is a shot across the bow from Myer warning others that defection while in contract will not be tolerated.
Had the situation been reversed, Paul Zahra at David Jones may have done the same thing.
Both department stores fight very hard to extract exclusive deals from suppliers. It is their point of difference and a valuable one.
Some of the larger middle-range brands are represented in both department stores, but only because the foot traffic and the sales they bring provides them with enough bargaining power to insist they are on both sets of shelves.
The high-end designers like Ellery don't sell a large number of garments (which is not a surprise given her dresses retail for $5000 a pop), but she is one of the hottest names in fashion circles and her presence gives a department store plenty of cachet.
The idea around having Ellery as an exclusive supplier is that it works for the Myer brand and it may lure people into the store who will spend on other things while cruising the aisles.
As one astute insider suggested, these high-profile brands are like loyalty schemes. They are not there to reward the existing shoppers but to entice the promiscuous consumers that have little or no store loyalty.
But for these small-selling brands like Ellery, the economics don't work for the department stores unless they are exclusive.
For Myer or David Jones, stocking the likes of Ellery is an investment in the department-store brand. They are marketed in fashion shows and catalogues as well as being draped around the high-profile model/celebrity ambassadors. The last thing a department store can afford is to have a designer like Ellery available in competitor stores.
This exclusive model operates all over the world.
The brands also matter because they allow the department store some control over pricing at a time when competition from the internet is taking pricing power away.
This is a major reason David Jones promotes itself as the "house of brands". It is also the reason Myer boss Bernie Brookes has been busy buying up brand suppliers like Wayne Cooper. A few years back, Myer spent more than $50 million buying a majority share in one of Australia's better-known designer outfits, Sass & Bide.
In court this week, Myer is seeking to injunct Ellery from selling through David Jones, as well as seeking damages.
Even if Myer wins and is awarded damages, these could be difficult to measure - bearing in mind Ellery was only a small fraction of Myer's business.
These smaller high-end designers usually make a slim profit - if any.
It makes one wonder why Myer did not join David Jones as a defendant for inducing Ellery to allegedly breach the Myer contract.
(When Network Ten lured Seven Network executive James Warburton to become chief executive of the television business, Ten was joined as a co-defendant in Seven's legal action for this reason.)
Ellery has become a test case in what is being billed as a David and Goliath battle. While there have been suggestions this case involves restraint of trade, the reality is that Myer's contract with Ellery allowed for other points of retail distribution, including the internet and her own retail outlet.
The last thing that either department store would want is for the Australian Competition and Consumer Commission to go messing around with the ability to negotiate exclusive contracts.
The difficult retail market has put plenty of pressure on the department store chains and they cannot afford to have additional challenges.
Myer clearly felt it needed to draw a line in the sand over which suppliers could not cross.
Frequently Asked Questions about this Article…
The case involves designer Kym Ellery walking away from a three-year exclusive supply deal with Myer and signing with rival David Jones mid-contract. Myer is seeking an injunction to stop Ellery selling through David Jones and is also seeking damages. Investors should watch it because it highlights how department stores use exclusive brands to protect their brand positioning and customer traffic, and because the outcome could affect how exclusivity is enforced in Australian retail.
Exclusive high-end designers give department stores cachet and can lure customers who might spend on other items while in store. The article describes these brands as similar to loyalty schemes aimed at consumers with weak store loyalty. Although high-end names may not sell large volumes (Ellery dresses retail around $5,000 each), they boost a store’s image and help maintain pricing control versus online competition.
Even if Myer wins, damages could be hard to measure. The article notes Ellery represented only a small fraction of Myer’s business and smaller high-end designers typically make slim profits. So any award may be symbolic or modest, limiting direct financial impact even if a legal precedent is set.
Myer has acquired stakes in designer labels (the article cites spending more than $50 million for a majority share in Sass & Bide and buying up suppliers like Wayne Cooper) to secure exclusive supply, protect brand differentiation, and retain pricing power. For investors, this strategy is about locking in unique product offerings that drive store traffic and help compete with online price pressure.
Risks include legal costs, potential loss of exclusive product cachet, and distraction in an already difficult retail market. There’s also the danger of regulatory scrutiny—if authorities like the ACCC intervene it could limit the ability to negotiate exclusive contracts, which both Myer and David Jones rely on to differentiate themselves.
The article raises this question but doesn’t provide a definitive reason. It notes Myer did not join David Jones as a defendant, even though in comparable corporate poaching cases the employer that benefited has been named. The omission was highlighted as curious but unexplained in the piece.
The article suggests both department stores would rather avoid ACCC interference because exclusive contracts are a key negotiating tool. If the ACCC were to challenge exclusivity arrangements, it could change how department stores secure unique brands and affect their ability to maintain pricing power—an outcome investors would need to factor into valuations and strategy expectations.
The case is described as a David-and-Goliath battle because a small designer is taking on a large retailer. But the article points out Myer’s contract allowed other retail channels such as the internet and Ellery’s own store, so the dispute is as much about signaling and protecting exclusivity as it is about direct lost sales. Investors should see it as a potential legal test of exclusivity enforcement with symbolic importance for retail strategy, rather than a guaranteed big financial swing for either side.
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