The chief executive of NSW Ports is concerned about ACCC action.

The Australian Competition and Consumer Commission (ACCC) instituted proceedings in the Federal Court against NSW Ports in December over an allegedly illegal anti-competitive deal it struck with the state government.

“Of course we were disappointed to have the ACCC action and yes it is concerning that this has arrived,” NSW Ports CEO Marika Calfas has told reporters.

The $5.1 billion deal signed in 2013 included provisions requiring the state government to compensate NSW Ports - which operates Botany and Kembla - if another container terminal was built at Newcastle.

The compensation requirements were passed to the owners of Newcastle Port when it was privatised in 2014.

Ms Calfas the ACCC knew about that deal at the time, so it is disappointing that it is proceeding with court action now, and only against NSW Ports.

“Obviously, it's disappointing for us to hear that and then find that four years later that the ACCC has now formed a view that further action needs to be taken, and taken against us,” the NSW Ports boss said.

The ACCC said its concerns at the time of the sale were “largely hypothetical”.

NSW Ports says Newcastle does not need another container terminal, and Newcastle Port's chief executive Craig Carmody says his consortium could only attract private investment to develop a container terminal if the compensation arrangement is scrapped.

“None of the investors in this are prepared to give me a single dollar until that port commitment deed is out of the way. Economically it just does not work,” Mr Carmody told a NSW parliamentary inquiry.

A KPMG report, commissioned by NSW Ports and released on Monday, found a container terminal in Newcastle would be the most expensive way to get goods to Sydney.

NSW Ports is owned by industry superannuation funds including Australian Super and Q Super.