Fair Trading Act

Version No.
044
Fair Trading Act 1999

No. 16 of 1999 Version incorporating amendments as at 1 April 2010 TABLE OF PROVISIONS
Section PART 1PRELIMINARY 1 2 3 4 5 6 Purposes Commencement Definitions Representations as to future matters Crown bound Extra-territorial application of this Act Page 1 1 2 2 11 12 12 13 13 13 15 20 22 22 23 23 24 25 26 26 27 28 29 30 31 32 34 37 37
PART 2UNFAIR PRACTICES 7 Unconscionable conduct within the meaning of the unwritten law 8 Unconscionable conduct 8A Unconscionable conduct in business transactions 8B The price for a supply or acquisition, or possible supply or acquisition 9 Misleading or deceptive conduct 10 Misleading conduct in relation to goods 11 Misleading conduct in relation to services 12 False representations in relation to goods and services 13 False representations in relation to employment 14 False testimonials 15 Cash price to be stated in certain circumstances 16 Offering gifts and prizes 17 Bait advertising 18 Referral selling 19 Accepting payment without being able to supply as ordered 20 Misleading representations about certain business activities 21 Harassment and coercion 22 Pyramid selling 23 Unsolicited prescribed cards 24 Right to payment for unsolicited goods or services 24A Right to payment for goods or services not supplied
Section 25 26 27 28 29 30 31 32 Liability of recipient of unsolicited goods Liability of recipient of unsolicited services Right to payment for unauthorised entries or advertisements When right to payment deemed to be asserted Address to be included in documents Mock auctions Simplification of proof Publications which are not prohibited
Page 38 40 40 43 44 46 47 48 49 49 49 50 50 50 51 51 51 52 53 54 55 55 55 56 56 57 58 58 59 60 60 61 61 62 63 64 64 65 66 66
PART 2AIMPLIED CONDITIONS AND WARRANTIES IN CERTAIN CONTRACTS OF SUPPLY Division 1Interpretation 32A 32B 32BA 32C 32CA 32D 32DA 32E 32EA 32EB 32F 32FA 32G 32GA 32GB 32H 32HA 32I 32IA 32J 32JA 32K 32KA Definitions What are conditions and warranties? What are antecedent negotiations? When is a person aware of a fact, matter or circumstance? Application of Part This Part applies to certain kinds of contracts This Part does not apply to certain kinds of contracts How is cash price determined for contracts generally? How is cash price determined for leases of goods? Presumption that this Part applies to supply Application of Part to mixed contracts Application of Goods Act 1958 to contracts of supply
Division 2Application of Part
Division 3Supply of goods or services Terms implied in contracts as to right to supply Transfer of limited interest in goods Terms implied in leases as to right to hire Supply of goods by description Supply of goods by sample Merchantable quality of goods supplied Fitness of goods for purpose Implied conditions in supply of services Fitness of services for purpose Supply of services by demonstration Terms implied in contracts of supply of both services and goods 32KAB Certain agreements excluded 32L Contract cannot exclude this Part 32LA Contract cannot exclude liability for damages 32M Penalties for including void provisions 32MA Limitation of liability generally
ii
Section 32N 32NA 32NB 32O 32OA 32P 32PA 32Q 32QA 32R 32RA Limitation of liability in relation to supply of recreational services Exemption from waiver form requirement Supplier to have reasonable opportunity to make good title Acceptance of goods Rescission for innocent misrepresentation Discharge or rescission of contract of supply of goods When does a discharge or rescission have effect? Liability of supplier and person conducting antecedent negotiations Indemnity for supplier or dealer Certain contracts or provisions void Penalty for including void provision relating to antecedent negotiations Implied terms do not negative express terms unless inconsistent Limit of liability of guarantors Limit of liability under security Contract of supply not illegal etc.
Page
68 71 72 73 75 75 76 77 79 79 80 80 80 80 83 83 85 85 86 86 86 87 88 88 89 91 93 93 94 94 94 94 95 95 95
Division 4General 32S 32SA 32T 32TA
PART 2BUNFAIR TERMS IN CONSUMER CONTRACTS 32U 32V 32W 32X 32Y 32Z 32ZA 32ZB 32ZC 32ZD 32ZDA Definitions Application of Part What is an unfair term? Assessment of unfair terms Effect of unfair term Offences relating to prescribed unfair terms Injunctions to prevent continued use of unfair terms Director may require the supply of information Declaration by Court or Tribunal Advisory opinion by the Tribunal Presumption that this Part applies to a contract
PART 2CFRUSTRATED CONTRACTS Division 1Introductory 32ZE 32ZF 32ZG 32ZH Definitions Contracts to which this Part applies Adjustment of amounts paid or payable to parties to discharged contracts Court may allow amounts paid or payable to be recovered or paid
Division 2Consequences of frustration of contract
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Section 32ZI 32ZJ 32ZK Parties to pay an amount for valuable benefits obtained Calculation of expenses incurred Circumstances in which amounts payable under contract of insurance excluded Circumstances in which contract provisions continue to have effect despite frustration Performed part of contract not frustrated Nature of action Limitation period
Page 96 97 97 98 98 98 99 99 100 100 100 101 101 102 103 103 103 104 105 106 106 106 107 108 108 108 109 110 110 111 113
Division 3General 32ZL 32ZM 32ZN 32ZO
PART 3SAFETY AND INFORMATION REQUIREMENTS Division 1Safety standards 33 34 35 36 37 38 39 40 41 42 43 44 45 Offence to supply goods or services which do not comply with safety standards Prescribed safety standards Interim ban order Operation of interim ban order Notice of order Offence to contravene interim ban order Permanent ban order or fixed term ban order made after interim ban order General power to make permanent ban order or fixed term ban order When does a permanent ban order or a fixed term ban order take effect? Notice of order Revocation or amendment of permanent ban order or fixed term ban order Offence to contravene permanent ban order or fixed term ban order Loss, injury or damage arising from a contravention of this Division Offence to supply goods or services which do not comply with information standards Prescribed information standards Loss, injury or damage arising from a contravention of this Division Notification of voluntary recall Compulsory recall Repair and replacement of goods
Division 2Information standards 46 47 48
Division 3Recall of goods 49 50 51
iv
Section 52 53 54 55 56 57 58 Circumstances in which a refund may be reduced Compliance with compulsory recall notice Loss, injury or damage arising from contravention of this Division Requirement to notify persons outside Victoria Certain actions not to affect insurance contracts Review of ban order or compulsory recall notice Warning notice to public
Page 113 114 114 115 116 117 117 117 117 119 119 119 120 120 122 123 124 126 127 127 128 128 130 130 131 132 132 132 135 135 136 138 140 140 141 142 143
Division 4Applications for review Division 5Warning notices
PART 4OFF-BUSINESS-PREMISES SALES AND OTHER SALES Division 1Introductory 59 60 61 62 62A 62B 62C 62D 62E 63 64 65 66 67 67A 67B 67C 67D 67E 67F 67G 67H 67I 67J Application What is a contact sales agreement? Requirements for contact sales agreements Supplier must comply with requirements Duty to obtain prior consent to visit Duty not to remain on premises for long periods Duty to leave premises Duty to produce identification Duty to inform When can the purchaser cancel the agreement? What is the effect of cancellation? What must the supplier do on cancellation? What can the supplier charge on cancellation? What must the purchaser do on cancellation? What is a telephone marketing agreement? Duty to cease telephone marketing Permitted hours for telephone marketing Purchaser must give explicit informed consent Requirements for a telephone marketing agreement Supplier must comply with requirements When does a telephone marketing agreement commence? When and how can the purchaser cancel the agreement? What is the effect of cancellation? What must the supplier do on cancellation? Division 2Contact sales agreements
Division 2ATelephone marketing agreements
Section 67K What can the supplier charge on cancellation? 67L What must the purchaser do on cancellation? 67M What if the telephone marketing agreement is void for lack of explicit informed consent? Division 3Non-contact sales agreements 68 What is a non-contact sales agreement? 68A Duty to cease telephone marketing for non-contact sales agreement 69 Requirements for non-contact sales agreements 70 Supplier must comply with requirements 71 When can the purchaser cancel the agreement? 72 What is the effect of cancellation? 73 What must the supplier do on cancellation? 74 What can the supplier charge on cancellation? 75 What must the purchaser do on cancellation? Division 4General 7678 Repealed 79 Trade-in not to be sold during cooling-off period 80 Prohibition on payment for services during cooling-off period 81 Certain provisions in agreements void 82 Recovery of money PART 5LAY-BY SALES 83 84 84A 85 86 87 88 89 90 91 92 93 Statement of lay-by terms Change of lay-by terms Lay-by goods must be available Cancellation of lay-by by purchaser Cancellation of lay-by by supplier Cancellation on breach by purchaser Cancellation where business closes Effect of cancellation of lay-by Cancellation charge must not exceed a reasonable amount Limits on supplier's remedies Demands for early payment Effect of contracting out
Page 143 144 145 146 146 147 147 148 149 149 150 150 151 151 151 152 152 152 153 155 155 156 157 157 158 159 160 160 162 163 163 163 164 164 164 165 166
PART 5AFAIR REPORTING 93A Definitions 93B Correction of errors 93C Consumer may apply to court where agent fails to correct information etc. 93D Powers of Court on application
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Section PART 6CODES OF PRACTICE 94 95 96 97 Preparation of draft code of practice by the Director Consideration of draft code of practice prepared by other persons Prescribing codes of practice Offence to breach code of practice
Page 168 168 168 168 169 170 170 170 170 172 172 173 173 173 173 174 176 178 178 179 181 181 182 184 186 187 188 188 188 190 191 192 193 193 194 194 195
PART 7ADMINISTRATION 98 99 100 101 102 Director of Consumer Affairs Victoria Staff Functions and powers of the Director Powers of delegation Director's report
PART 8POWERS OF DIRECTOR Division 1Disputes 103 104 105 106 106A 106B 106C 106D 106E 106F 106G 106H 106HA 106I 106J 106K 106L 106M 106N 106O 106P Making a complaint Conciliation and mediation Powers of the Director in relation to proceedings on behalf of consumers Proceedings and costs Substantiation of claims Show cause notice Definitions Director may suspend licence Effect of suspension Lapsing or continuation of suspension Extension of period Right of review Power to obtain information and documents to monitor compliance Power to obtain information, documents and evidence Powers in relation to documents Copies of seized documents Retention and return of seized documents Magistrates' Court may extend 3 month period Complaints Service of documents Confidentiality
Division 2Suppliers
Division 3Licence suspension
Division 4Obtaining information, documents and evidence
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Section PART 9FUNCTIONS OF TRIBUNAL 107 107A 108 109 110 What is a consumer and trader dispute? What is a small claim? Settlement of consumer and trader disputes or small claims Additional powers of Tribunal Who can ask the Tribunal to resolve a consumer and trader dispute? 111 Exclusion of other jurisdiction 112 More appropriate forum 112A Small claim commenced in a court 112B Small Claims Suspense Account 113 Tribunal may hear dispute regardless of related criminal proceedings 113A Tribunal may order the provision of information PART 10INSPECTION POWERS 114 115 116 117 118 119 120 121 121A 122 123 124 125 126 126A 126B 127 128 129 129A 130 131 132 133 134 135 136 137 Appointment of inspectors Inspector's identity card Production of identity card Inspector may seek Court order Requirement to produce information Entry or search with consent Entry of premises open to the public Emergency entry Entry without consent or warrant Search warrants Announcement before entry Details of warrant to be given to occupier Seizure of things not mentioned in the warrant Embargo notice Use or seizure of electronic equipment at premises Monitoring compliance with embargo notices Copies of seized documents Retention and return of seized documents or things Magistrates' Court may extend 3 month period Court may order destruction of dangerous goods Taking samples Requirement to assist inspector during entry Refusal or failure to comply with requirement Protection against self-incrimination Offence to give false or misleading information Offence to hinder or obstruct inspector Offence to impersonate inspector Entry to be reported to the Director
Page 196 196 196 197 198 201 201 202 203 204 204 205 206 206 207 207 207 209 210 213 213 216 218 220 221 221 222 223 224 226 226 227 228 229 229 229 230 230 230 231 231
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Section 138 139 140 141 Register of exercise of powers of entry Complaints Service of documents Confidentiality
Page 231 231 232 232 234 234 234 234 235 235 237 237 238 239 239 240 241 243 244 244 245 246 246 247 248 248 249 252 254 254 255 257 257 258 258 259 259
PART 11ENFORCEMENT AND REMEDIES Division 1General enforcement provisions 142 Prosecutions of offences 142A Who can bring proceedings for offences? 143 Offences by bodies corporate 144 Conduct by officers, employees or agents Division 2Remedies and legal proceedings 145 146 147 148 149 149A 150 151 151A 151B 151C 152 152A Interpretation Undertakings Copy of undertaking Register of undertakings Injunctions to restrain conduct Injunctions to do an act or thing Interim injunctions Power to rescind or vary injunctions Cease trading injunctions Interim cease trading injunctions Power to rescind or vary cease trading injunctions Undertakings as to damages and costs Powers of court if requirement of Director or inspector not complied with 153 Non-punitive ordersCorrective advertising orders 153A Punitive ordersAdverse publicity orders 154 Orders to prohibit payment of money or transfer of other property 155 Defences 156 Evidence 157 Findings in proceedings to be evidence 158 Orders against persons found to have contravened this Act 159 Actions for damages 160 Awards of compensation Division 3Infringement notices 160A Power to serve a notice 160B Form of notice 160C160H Repealed
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Section PART 12MISCELLANEOUS 161 161A 162 162A 163 163A 164 165 Supplier to give documents Bills and receipts Return of replaced parts to purchaser Public warning statements Consumer documents to be clear Complaints etc. are privileged Supreme Courtlimitation of jurisdiction Regulations
Page 260 260 260 262 263 264 265 265 265 268 268 268 268 268 268 269 269 271 271 272 276 276 276 277 278 278 278 279 279 280 280 281 282 282 282
PART 13REPEALS, SAVINGS AND TRANSITIONAL 166 167 168 169 170 Repeal of Fair Trading Act 1985 Repeal of Consumer Affairs Act 1972 Repeal of Ministry of Consumer Affairs Act 1973 Repeal of Market Court Act 1978 Savings and transitional provisions __________________
SCHEDULES SCHEDULE 1Consumer Acts SCHEDULE 2Contact Sales Agreements/ Telephone Marketing Agreements PART 1NOTICE TO PURCHASER PART 2CANCELLATION NOTICE SCHEDULE 3Savings and Transitional 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Superseded references Actions commenced by Director or Secretary Inspectors Regulations Orders Superseded references to Director of Fair Trading and Office of Fair Trading and Business Affairs Actions commenced by Director Superseded references Actions commenced by Director Validation of ban orders Continuation of existing small claims Continuation of existing hire-purchase agreements Transitionalreferences to the Frustrated Contracts Act 1959 Transitional provisionsFair Trading and Other Acts Amendment Act 2009
Section 15 16 17 18 19 TransitionalStatute Law Amendment (Charter of Human Rights and Responsibilities) Act 2009 TransitionalConsumer Affairs Legislation Amendment Act 2010 TransitionalRepeal of Trade Measurement Act 1995 TransitionalRepeal of Trade Measurement (Administration) Act 1995 TransitionalTransfer of information for the purpose of the National Measurement Act 1960 of the Commonwealth
Page
284 284 285 287 289 290 290 291 295
ENDNOTES 1. General Information 2. Table of Amendments 3. Explanatory Details
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Version No. 044
Fair Trading Act 1999

No. 16 of 1999 Version incorporating amendments as at 1 April 2010 The Parliament of Victoria enacts as follows:
PART 1PRELIMINARY
1 Purposes The main purposes of this Act are (a) to promote and encourage fair trading practices and a competitive and fair market; (aa) to protect consumers;
S. 1(aa) inserted by No. 30/2003 s. 3(1).
(b) to regulate trade practices; (ba) to provide for statutory conditions and warranties in consumer contracts; (bb) to provide for unfair terms in consumer contracts to be void; (c) to provide for the safety of goods or services supplied in trade or commerce and for the information which must be provided with goods or services supplied in trade or commerce; (d) to regulate off-business-premises sales and lay-by sales;
S. 1(ba) inserted by No. 30/2003 s. 3(2). S. 1(bb) inserted by No. 30/2003 s. 3(2).
s. 2
Fair Trading Act 1999 No. 16 of 1999 Part 1Preliminary
(e) to provide for codes of practice;

S. 1(f) amended by Nos 35/2000 s. 40(1), 30/2003 s. 3(3).
(f) to provide for the powers and functions of the Director of Consumer Affairs Victoria including powers to conciliate disputes under this Act and powers to carry out investigations into alleged breaches of this Act; (g) to repeal the Consumer Affairs Act 1972, the Ministry of Consumer Affairs Act 1973, the Fair Trading Act 1985 and the Market Court Act 1978. 2 Commencement (1) This Part comes into operation on the day on which this Act receives the Royal Assent. (2) The remaining provisions of this Act come into operation on a day or days to be proclaimed. (3) If a provision referred to in subsection (2) does not come into operation before 1 February 2000, it comes into operation on that day. 3 Definitions In this Act auction means any sale of goods or services at which some or all of the persons present compete for the purchase of goods or services, whether by way of increasing bids or by the offer of goods or services to be bid for at successively decreasing prices or otherwise;
S. 3 def. of business day amended by No. 30/2003 s. 4(2).
business day means a day that is not (a) a Saturday or Sunday; or (b) a public holiday;
s. 3
S. 3 def. of business licensing Act inserted by No. 30/2003 s. 4(1).
business licensing Act has the same meaning as in the Business Licensing Authority Act 1998; cancellation charge in relation to a lay-by means any amount which, under the terms of the lay-by, the supplier may charge for the cancellation of the lay-by; compulsory recall notice means a notice under section 50; Consumer Act means (a) an Act listed in Schedule 1; or * * * * * (c) Part 4 of the Veterans Act 2005;
S. 3 def. of Consumer Act inserted by No. 35/2000 s. 40(2)(b), substituted by No. 103/2004 s. 3(1), amended by Nos 98/2005 s. 88, 69/2006 s. 224(Sch. 3 item 6.1). S. 3 def. of consumer contract inserted by No. 30/2003 s. 4(1).
consumer contract means an agreement, whether or not in writing and whether of specific or general use, to supply goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption, for the purposes of the ordinary personal, domestic or household use or consumption of those goods or services; contact sales agreement has the meaning given in section 60; cooling-off period means (a) in the case of a contact sales agreement, the period within which the purchaser is entitled under the agreement and section 63 to cancel the agreement; or
S. 3 def. of cooling-off period amended by No. 106/2003 s. 3(2)(a).
s. 3
(aa) in the case of a telephone marketing agreement, the period within which the purchaser is entitled under the agreement and section 67H to cancel the agreement; or (b) in the case of a non-contact sales agreement, the period within which the purchaser is entitled under the agreement and section 71 to cancel the agreement; dangerous means likely to cause death or serious injury to the body or health of any person, whether directly or indirectly;
S. 3 def. of Director amended by Nos 35/2000 s. 40(2)(a), 30/2003 s. 4(3), 108/2004 s. 117(1) (Sch. 3 item 74.1).
Director means the person who, for the time being, is employed as Director of Consumer Affairs Victoria under the Public Administration Act 2004;
engaging in conduct, in relation to a person, includes all or any of the following (a) the doing of any act by the person; (b) the refusal by the person to do any act; (c) the person refraining (otherwise than inadvertently) from doing an act; (d) the person making it known that an act will not be done; (e) the person offering to do an act or to do an act on a particular condition; (f) the person making it known that he or she will accept applications, offers or proposals to do the act or to do the act on a particular condition; 4
s. 3
S. 3 def. of fixed term ban order inserted by No. 30/2003 s. 4(1). S. 3 def. of goods substituted by No. 2/2009 s. 26.
fixed term ban order means a fixed term ban order under section 39 or 40;
goods includes (a) in the definition of hire-purchase agreement, all chattels personal other than money or things in action; (b) in any other case includes (i) ships, aircraft and other vehicles; and (ii) animals (including fish); and (iii) minerals, trees and crops, whether on, under or attached to land or not; and (iv) gas, electricity, water, sewerage and telecommunications; hire-purchase agreement includes a letting of goods with an option to purchase and an agreement for the purchase of goods by instalments (whether that agreement describes the instalments as rent or hire or otherwise) but does not include any agreement (a) by which the property in the goods in the agreement passes at the time of the agreement or on or at any time before delivery of the goods; or (b) under which the person by whom the goods are being hired or purchased is a person who is engaged in the trade or business of selling goods of the same nature or description as the goods comprised in the agreement; or 5
S. 3 def. of hire-purchase agreement substituted by No. 2/2008 s. 3.
s. 3
(c) that is a regulated contract within the meaning of the Credit Act 1984; or (d) that is a credit contract within the meaning of the Consumer Credit (Victoria) Code; interim ban order means an interim ban order under section 35; inspector means a person appointed to be an inspector under section 114; lay-by means the supply of goods ordinarily used for personal, household or domestic purposes on terms (express or implied) which provide that (a) the goods will not be delivered to or available for collection by the purchaser until the whole of the price has been paid; and (b) the price is to be paid by 3 or more payments whether or not the goods are in existence or in the supplier's possession when the terms are agreed upon; lay-by statement means a statement of lay-by terms given under section 83; member of the police force has the same meaning as member of the force in the Police Regulation Act 1958; non-contact sales agreement has the meaning given by section 68; occupier in relation to a premises, means a person who appears to be of or over 16 years of age and who appears to be in control of the premises;
s. 3
S. 3 def. of officer amended by Nos 44/2001 s. 3(Sch. item 42.1), 103/2004 s. 3(2), 19/2009 s. 3(1).
officer (a) in relation to a body corporate which is a corporation within the meaning of the Corporations Act, has the same meaning as officer of a corporation has in section 9 of that Act; and (b) in relation to a body corporate which is not a corporation within the meaning of that Act, means any person (by whatever name called) who is concerned in or takes part in the management of the body corporate or an employee of the body corporate; * * * * *
S. 3 def. of OFTBA Act repealed by No. 35/2000 s. 40(2)(c).
permanent ban order means a permanent ban order under section 39 or 40; post box means post office box, document exchange, mail collection agency or mail forwarding agency; prescribed information standard means an information standard prescribed in accordance with section 47; prescribed safety standard means a safety standard prescribed in accordance with section 34; price includes a charge of any description; private residence includes any part of the allotment on which the private residence is situated;
S. 3 def. of post box inserted by No. 30/2003 s. 4(1).
s. 3
S. 3 def. of public holiday inserted by No. 30/2003 s. 4(1).
public holiday has the same meaning as in the Public Holidays Act 1993;
S. 3 def. of publisher inserted by No. 30/2003 s. 4(1).
publisher means a person who publishes a publication intended for sale or public distribution (whether to the public generally or to a restricted class or number of persons) or for public display (including in an electronic form); purchaser in relation to a supply of goods or services means the person to whom the goods or services have been or are to be supplied;
S. 3 def. of related body corporate substituted by No. 44/2001 s. 3(Sch. item 42.2). S. 3 def of related contract or instrument amended by No. 106/2003 s. 3(2)(b).
related body corporate has the same meaning as in the Corporations Act;
related contract or instrument in relation to a contact sales agreement, telephone marketing agreement or non-contact sales agreement means (a) a contract of guarantee or indemnity that is related to that agreement; or (b) an instrument related to that agreement that creates a mortgage or charge in favour of the supplier, or a person nominated by the supplier; or (c) any other contract or instrument (not being an instrument of the kind referred to in paragraph (b)) that is collateral or related to the agreement;
s. 3
S. 3 def. of Secretary inserted by No. 30/2003 s. 4(1).
Secretary means the Secretary to the Department of Justice;
services includes any rights (including rights in relation to, and interests in real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce, including the rights, benefits, privileges or facilities that are, or are to be provided, granted or conferred under a contract for or in relation to (a) the performance of work (including work of a professional nature) whether with or without the supply of goods; or (b) the provision of, or the use or enjoyment of facilities for, amusement, entertainment, recreation or instruction; or (c) the conferring of rights or benefits or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar payment but does not include rights or benefits being the supply of goods or the performance of work under a contract of service; supplier in relation to a supply of goods or services, means the person who has supplied or is to supply the goods or services; supply includes (a) in relation to goodssupply (including re-supply) by way of sale, exchange, lease, hire or hire-purchase agreement; and 9
s. 3
(b) in relation to servicesprovide, grant or confer; and (c) in Part 3, in relation to goods (i) exhibit, expose or have in possession for the purpose of sale, exchange, lease, hire or hirepurchase or for any purpose of advertisement, trade or business; and (ii) offer as a prize or reward or give away for the purpose of advertisement or in furtherance of trade or business;
S. 3 def. of telephone marketing agreement inserted by No. 106/2003 s. 3(1).
telephone marketing agreement has the meaning given by section 67A;
trade-in in relation to goods, means goods (a) which were purchased or accepted; or (b) in respect of which there was an agreement to purchase or accept before or at the time of the entering into of an agreement, as part of the consideration for the transaction to which the agreement relates;
S. 3 def. of trade or commerce amended by No. 19/2009 s. 3(2).
trade or commerce includes any business or professional activity whether or not carried on for profit; Tribunal means the Victorian Civil and Administrative Tribunal established by the Victorian Civil and Administrative Tribunal Act 1998;
10
s. 4
S. 3 def. of unsolicited goods substituted by No. 30/2003 s. 4(4).
unsolicited goods means goods supplied to a person (a) without any request made by or on behalf of the person; or (b) on approval; unsolicited services means services supplied to a person without any request made by or on behalf of the person; workplace includes any land used in conjunction with a workplace for the purposes of the workplace. 4 Representations as to future matters (1) For the purposes of Part 2, if a person makes a representation about a future matter, including the doing of, or the refusing to do any act, and the person does not have reasonable grounds for making the representation, the representation is deemed to be misleading. (2) Subject to subsection (2A), in any proceeding under this Act concerning a representation made by a person about a future matter, the person making the representation bears the burden of proving that the person had reasonable grounds for making the representation. (2A) In any proceeding for an offence under this Act concerning a representation made by a natural person about a future matter, the person making the representation is taken not to have had reasonable grounds for making the representation unless the person adduces evidence to the contrary. (3) Subsection (1) is deemed not to limit by implication a reference in Part 2 to a misleading representation, a representation that is misleading
S. 4(2) amended by No. 45/2009 s. 7(1).
S. 4(2A) inserted by No. 45/2009 s. 7(2).
11
s. 6
in a material particular or conduct that is misleading or is likely or liable to mislead. 5 Crown bound This Act binds the Crown not only in right of Victoria but also, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.
S. 6 substituted by No. 30/2003 s. 5.
6 Extra-territorial application of this Act (1) This Act applies within and outside Victoria. (2) This Act applies outside Victoria to the full extent of the extra-territorial legislative power of the Parliament. _______________
12
Fair Trading Act 1999 No. 16 of 1999 Part 2Unfair Practices
s. 7
PART 2UNFAIR PRACTICES
7 Unconscionable conduct within the meaning of the unwritten law (1) A person must not, in trade or commerce, engage in conduct which is unconscionable, within the meaning of the unwritten law, from time to time. (2) This section does not apply to conduct that is prohibited by section 8 or 8A. 8 Unconscionable conduct (1) A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services of a kind ordinarily used for personal, household or domestic purposes to a purchaser, engage in conduct that is, in all the circumstances, unconscionable. (2) Without in any way limiting the matters to which a court or the Tribunal may have regard for the purpose of determining whether a person has contravened subsection (1), a court or the Tribunal may have regard to (a) the relative strengths of the bargaining positions of the supplier and the purchaser; and (b) whether, as a result of conduct engaged in by the supplier, the purchaser was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the supplier; and (c) whether the purchaser was able to understand any documents relating to the supply or possible supply of the goods or services; and
S. 7(2) amended by No. 86/2001 s. 3.
13
s. 8
(d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against the purchaser or a person acting on behalf of the purchaser by the supplier or a person acting on behalf of the supplier in relation to the supply or possible supply of the goods or services; and (e) the amount for which, and the circumstances under which, the purchaser could have been supplied with identical or equivalent goods or services from a person other than the supplier. (3) A person must not be taken to have contravened subsection (1) by reason only that the person institutes legal proceedings in relation to the supply or possible supply of goods or services to a purchaser. (4) For the purpose of determining whether a supplier has contravened subsection (1) (a) the court or the Tribunal must not have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention; and (b) the court or the Tribunal may have regard to conduct engaged in, or circumstances existing, before the commencement of this section. (5) This section does not apply to the supply or possible supply of goods if the supply or the possible supply of the goods is for the purpose of re-supply, in trade or commerce, or for the purpose of using the goods up or transforming the goods in trade or commerce.
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s. 8A
S. 8A inserted by No. 86/2001 s. 4.
8A Unconscionable conduct in business transactions (1) A person must not, in trade or commerce, in connection with (a) the supply or possible supply of goods or services to another person (other than a listed public company); or (b) the acquisition or possible acquisition of goods or services from another person (other than a listed public company) engage in conduct that is, in all the circumstances, unconscionable. (2) This section only applies to (a) the supply or possible supply of goods or services to a person; or (b) the acquisition or possible acquisition of goods or services by a person whose acquisition or possible acquisition of the goods or services is or would be for the purpose of trade or commerce. (3) Without in any way limiting the matters to which a court or the Tribunal may have regard for the purpose of determining whether a person (the supplier) has contravened subsection (1) in connection with the supply or possible supply of goods or services to another person (the business consumer), the court or Tribunal may have regard to (a) the relative strengths of the bargaining positions of the supplier and the business consumer; and (b) whether, as a result of conduct engaged in by the supplier, the business consumer was required to comply with conditions that were
15
s. 8A
not reasonably necessary for the protection of the legitimate interests of the supplier; and (c) whether the business consumer was able to understand any documents relating to the supply or possible supply of the goods or services; and (d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the business consumer or a person acting on behalf of the business consumer by the supplier or a person acting on behalf of the supplier in relation to the supply or possible supply of the goods or services; and (e) the amount for which, and the circumstances under which, the business consumer could have acquired identical or equivalent goods or services from a person other than the supplier; and (f) the extent to which the supplier's conduct towards the business consumer was consistent with the supplier's conduct in similar transactions between the supplier and other like business consumers; and (g) the requirements of any applicable industry code; and (h) the requirements of any other industry code, if the business consumer acted on the reasonable belief that the supplier would comply with that code; and (i) the extent to which the supplier unreasonably failed to disclose to the business consumer (i) any intended conduct of the supplier that might affect the interests of the business consumer; and
16
s. 8A
(ii) any risks to the business consumer arising from the supplier's intended conduct (being risks that the supplier should have foreseen would not be apparent to the business consumer); and (j) the extent to which the supplier was willing to negotiate the terms and conditions of any contract for supply of the goods or services with the business consumer; and (k) the extent to which the supplier and the business consumer acted in good faith. (4) Without in any way limiting the matters to which a court or the Tribunal may have regard for the purpose of determining whether a person (the acquirer) has contravened subsection (1) in connection with the acquisition or possible acquisition of goods or services from another person (the small business supplier), the court or Tribunal may have regard to (a) the relative strengths of the bargaining positions of the acquirer and the small business supplier; and (b) whether, as a result of conduct engaged in by the acquirer, the small business supplier was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the acquirer; and (c) whether the small business supplier was able to understand any documents relating to the acquisition or possible acquisition of the goods or services; and (d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the small business supplier or a person acting on behalf of the small business supplier by the acquirer or a person acting on 17
s. 8A
behalf of the acquirer in relation to the acquisition or possible acquisition of the goods or services; and (e) the amount for which, and the circumstances in which, the small business supplier could have supplied identical or equivalent goods or services to a person other than the acquirer; and (f) the extent to which the acquirer's conduct towards the small business supplier was consistent with the acquirer's conduct in similar transactions between the acquirer and other like small business suppliers; and (g) the requirements of any applicable industry code; and (h) the requirements of any other industry code, if the small business supplier acted on the reasonable belief that the acquirer would comply with that code; and (i) the extent to which the acquirer unreasonably failed to disclose to the small business supplier (i) any intended conduct of the acquirer that might affect the interests of the small business supplier; and (ii) any risks to the small business supplier arising from the acquirer's intended conduct (being risks that the acquirer should have foreseen would not be apparent to the small business supplier); and (j) the extent to which the acquirer was willing to negotiate the terms and conditions of any contract for the acquisition of the goods and services with the small business supplier; and 18
s. 8A
(k) the extent to which the acquirer and the small business supplier acted in good faith. (5) A person is not to be taken for the purposes of this section to engage in unconscionable conduct in connection with (a) the supply or possible supply of goods or services to another person; or (b) the acquisition or possible acquisition of goods or services from another person by reason only that the first-mentioned person institutes legal proceedings in relation to that supply, possible supply, acquisition or possible acquisition. (6) For the purpose of determining whether a person has contravened subsection (1) (a) the court or Tribunal must not have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention; and (b) the court or Tribunal may have regard to circumstances existing before the commencement of this section but not to conduct engaged in before that commencement. (7) This section does not apply to (a) a supply or possible supply of goods or services; or (b) an acquisition or possible acquisition of goods or services at a price in excess of $3 000 000 or such higher amount as is prescribed.
Note Section 8B deals with the price for a supply or acquisition, or possible supply or acquisition, of goods or services.
19
s. 8B
(8) In subsection (1) listed public company has the same meaning as in the Income Tax Assessment Act 1997 of the Commonwealth.
S. 8B inserted by No. 86/2001 s. 4.
8B The price for a supply or acquisition, or possible supply or acquisition (1) For the purposes of section 8A(7), the price for (a) the supply or possible supply of goods or services to a person; or (b) the acquisition or possible acquisition of goods or services by a person is, subject to the rest of this section, taken to be the amount paid or payable by the person for the goods or services. (2) For the purposes of section 8A(7), if a person is supplied with, or acquires, goods or services by way of a purchase that includes other property or services and no specified price was allocated to the goods or services in the contract under which they were purchased, the price for the supply or acquisition of the goods or services is taken to be (a) the price at which, at the time of the supply or acquisition, the person could have purchased the goods or services from the same supplier without the other property or services; or (b) if, at that time, the goods or services were not available for purchase from the supplier without the other property or services but goods or services of the kind supplied or acquired were available for purchase from another supplier without other property or servicesthe lowest price at which the person could, at that time, reasonably have
20
s. 8B
purchased goods or services of that kind from another supplier; or (c) if, at that time, goods or services of the kind supplied or acquired were not available from any supplier for purchase separately from other property or servicesthe value of the goods or services at that time. (3) For the purposes of section 8A(7), if a person is supplied with, or acquires, goods or services other than by way of purchase, the price for the supply or acquisition of the goods or services is taken to be (a) the price at which, at the time of the supply or acquisition, the person could have purchased the goods or services from the supplier; or (b) if, at that time, the goods or services were not available for purchase from the supplier or were so available only together with other property or services but goods or services of the kind supplied or acquired were available for purchase from another supplierthe lowest price at which the person could, at that time, reasonably have purchased goods or services of that kind from another supplier; or (c) if, at that time, goods or services of the kind supplied or acquired were not available for purchase from any supplier or were not so available separately from other property or servicesthe value of the goods or services at that time. (4) For the purposes of section 8A(7) but without limiting by implication the definition of services in section 3
21
s. 9
(a) the obtaining of credit by a person in connection with the supply to, or acquisition by, the person of goods or services is taken to be the supply to, or acquisition by, the person of a service; and (b) any amount by which the amount paid or payable by the person for the goods or services is increased by reason of the person's so obtaining credit is taken to be paid or payable by the person for that service. (5) For the purposes of section 8A(7), the price for the supply or possible supply, or the acquisition or possible acquisition, of services comprising or including a loan or loan facility is taken to include the capital value of the loan or loan facility. 9 Misleading or deceptive conduct (1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. (2) Nothing in the succeeding provisions of this Part is to be taken as limiting by implication the generality of subsection (1).
S. 10 amended by No. 30/2003 s. 6(1)(a)(b).
10 Misleading conduct in relation to goods A person must not, in trade or commerce, engage in conduct that is liable to mislead the public as to the nature, the manufacturing process, the characteristics, the suitability for their purpose or the quantity of any goods. Penalty: 600 penalty units, in the case of a natural person. 1200 penalty units, in the case of a body corporate.
22
s. 11
11 Misleading conduct in relation to services A person must not, in trade or commerce, engage in conduct that is liable to mislead the public as to the nature, the characteristics, the suitability for their purpose or the quantity of any services. Penalty: 600 penalty units, in the case of a natural person. 1200 penalty units, in the case of a body corporate. 12 False representations in relation to goods and services A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion or advertising by any means of the supply or use of goods or services (a) falsely represent that goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or particular previous use; or (b) falsely represent that services are of a particular standard, quality, value or grade or have had a particular previous use; or (c) falsely represent that goods are new; or (d) falsely represent that a particular person has agreed to acquire goods or services; or (e) represent that goods or services have a sponsorship, approval, performance characteristics, accessories, uses or benefits they do not have; or (f) represent that any person has a sponsorship, approval or affiliation that the person does not have; or
23
s. 13
(g) make a false or misleading representation with respect to the price of goods or services; or (h) make a false or misleading representation concerning the availability of facilities for the repair of goods or of spare parts for goods; or (i) make a false or misleading representation concerning the place of origin of goods; or (j) make a false or misleading representation concerning the need for any goods or services; or (k) make a false or misleading representation concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy; or (l) make a false or misleading representation about the production, manufacture, preparation or supply of any goods; or (m) make a representation which is unnecessary for the reasonable care and maintenance of any goods; or (n) make a representation that is false, misleading or deceptive in any material particular. Penalty: 600 penalty units, in the case of a natural person. 1200 penalty units, in the case of a body corporate.
13 False representations in relation to employment A person must not, in relation to employment that is to be, or may be, offered by the person or by another person, engage in conduct that is liable to mislead persons seeking the employment as to the
24
s. 14
availability, nature, terms or conditions of, or any other matter relating to, the employment. Penalty: 600 penalty units, in the case of a natural person. 1200 penalty units, in the case of a body corporate. 14 False testimonials (1) A person must not, in trade or commerce, make a representation (a) which purports to be a testimonial by any person regarding goods or services; or (b) about a testimonial or a representation which purports to be a testimonial regarding goods or services if that representation is false or misleading in any particular. Penalty: 240 penalty units, in the case of a natural person. 600 penalty units, in the case of a body corporate. (2) In any proceedings against a body corporate for an offence against this section the accused bears the burden of proving that a representation made by the accused is not false or misleading in any particular. (3) In any proceedings against a natural person for an offence against this section in respect of a representation that is alleged to be false or misleading in any particular, a representation made by the accused is taken to be false or misleading in that particular unless the accused adduces evidence to the contrary.
S. 14(2) amended by Nos 45/2009 s. 8(1), amended by No. 68/2009 s. 97(Sch. item 56.1). S. 14(1) amended by No. 30/2003 s. 6(3)(a)(b).
S. 14(3) inserted by No. 45/2009 s. 8(2), amended by No. 68/2009 s. 97(Sch. item 56.1).
25
s. 15
15 Cash price to be stated in certain circumstances A person must not, in trade or commerce, in connection with (a) the supply or possible supply of goods or services; or (b) the promotion by any means of the supply or use of goods or services make a representation with respect to an amount that, if paid, would constitute a part of the consideration for the supply of the goods or services unless the person also specifies the cash price for the goods or services. Penalty: 240 penalty units, in the case of a natural person. 600 penalty units, in the case of a body corporate. 16 Offering gifts and prizes A person who, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services, offers any gift, prize or other free item and (a) intends either not to provide the gift, prize or other item, or to provide a gift, prize or item which is not in accordance with the offer; or (b) does not within a reasonable time from the making of the offer provide a gift, prize or item which is in accordance with the offer is guilty of an offence and liable to a penalty of not more than
S. 16(c) amended by No. 30/2003 s. 6(2)(a).
(c) 600 penalty units, in the case of a natural person; or
26
s. 17
S. 16(d) amended by No. 30/2003 s. 6(2)(b).
(d) 1200 penalty units, in the case of a body corporate. 17 Bait advertising (1) A person must not, in trade or commerce, advertise for supply at a specified price, goods or services if there are reasonable grounds, of which the person is aware or ought reasonably to be aware, for believing that the person will not be able to offer those goods or services for supply at that price for a period that is, and in quantities that are, reasonable having regard to the nature of the market in which the person carries on business and the nature of the advertisement. Penalty: 600 penalty units, in the case of a natural person. 1200 penalty units, in the case of a body corporate. (2) If a person has, in trade or commerce, advertised goods or services for supply at a specified price that person must offer those goods or services for supply at that price for a period that is, and in quantities that are, reasonable having regard to the nature of the market in which the person carries on business and the nature of the advertisement. Penalty: 600 penalty units, in the case of a natural person. 1200 penalty units, in the case of a body corporate. (3) In proceedings for an offence under subsection (2), it is a defence to establish that the person made an offer to the purchaser
S. 17(1) amended by No. 30/2003 s. 6(2)(a)(b).
27
s. 18
(a) to supply, or to procure another person to supply, goods or services of the kind advertised within a reasonable time, in a reasonable quantity and at the advertised price; or (b) to supply immediately, or to procure another person to supply within a reasonable time, equivalent goods or services in a reasonable quantity and at the price at which the firstmentioned goods or services were advertised and, in either case, where the offer was accepted by the purchaser, the person has so supplied, or procured another person to so supply, the goods or services. 18 Referral selling
S. 18(1) amended by No. 30/2003 ss 6(2)(a)(b), 7(1).
(1) A person must not, in trade or commerce, induce a purchaser to enter into a consumer contract by representing that the purchaser may, after the contract is made, receive a rebate, commission or other benefit in return for (a) giving the person the names of prospective customers; or (b) otherwise assisting the person to supply goods or services to other purchasers if receipt of the rebate, commission or other benefit is contingent on an event occurring after that contract is made. Penalty: 600 penalty units, in the case of a natural person. 1200 penalty units, in the case of a body corporate.
S. 18(1)(a) amended by No. 30/2003 s. 7(1). S. 18(1)(b) amended by No. 30/2003 s. 7(1)(2).
28
s. 19
S. 18(2) repealed by No. 30/2003 s. 7(3).
19 Accepting payment without being able to supply as ordered (1) A person who, in trade or commerce, accepts payment or other consideration for the supply of goods or services, and who (a) does not supply all the goods or services within the period specified by the person or, if no period is specified, within a reasonable time; or (b) supplies goods or services that are materially different from the goods or services to which the agreement to supply related is guilty of an offence and liable to a penalty of not more than (c) 600 penalty units, in the case of a natural person; or (d) 1200 penalty units, in the case of a body corporate. (2) Subsection (1) applies whether or not the payment or other consideration accepted by the person represents the whole or a part of the payment or other consideration for the supply of the goods or services.
S. 19(1)(c) amended by No. 30/2003 s. 6(1)(a). S. 19(1)(d) amended by No. 30/2003 s. 6(1)(b).
29
s. 20
20 Misleading representations about certain business activities

(1) A person must not, in trade or commerce, make a representation that is false or misleading in a material particular concerning the profitability or risk or any other material aspect of any business activity that the person has represented as one that can be, or can be to a considerable extent, carried on at or from a person's place of residence. Penalty: 600 penalty units, in the case of a natural person. 1200 penalty units, in the case of a body corporate.
(2) If a person, in trade or commerce, invites persons, whether by advertisement or otherwise (a) to engage or participate in a business activity; or (b) to offer or apply to engage or participate in a business activity requiring (c) the performance by the persons so invited of work; or (d) the investment of money by the persons so invited and the performance by those persons of work associated with the investment the first-mentioned person must not make a representation that is false or misleading in a material particular, with respect to the profitability or risk or any other material aspect of the business activity. Penalty: 600 penalty units, in the case of a natural person. 1200 penalty units, in the case of a body corporate. 30
s. 21
21 Harassment and coercion (1) A person must not use physical force or undue harassment or coercion in connection with the supply or possible supply of goods or services to another person or the payment for goods or services by another person. Penalty: 600 penalty units, in the case of a natural person. 1200 penalty units, in the case of a body corporate. (2) Without limiting subsection (1) the following conduct is deemed to be a contravention of subsection (1) (a) using a document resembling a court document or a Tribunal document or an official document to mislead a person in connection with a debt or the consequences of not paying a debt; (b) making a misrepresentation to a debtor about the consequences of not paying a debt or about the method of recovering a debt; (c) serving a summons which has not been issued; (d) impersonation of a bailiff or a member of the police force; (e) carrying a firearm within the meaning of the Firearms Act 1996 or a dangerous article within the meaning of the Control of Weapons Act 1990; (f) use of a letterhead by a person which is liable to mislead the person to whom the letter is sent as to the identity, status or role of the person who used the letterhead;
31
s. 22
(g) disclosure or threat of disclosure of debt information, without the consent of the debtor, to other persons who do not have a clear and legitimate interest in the information; (h) unreasonable communication with a debtor; (i) any communication with a person under 18 years of age in relation to a debt, if the person is not the debtor; (j) doing or threatening to do any act that may intimidate, harass or expose to ridicule a debtor or a member of a family of a debtor; (k) refusal to leave a person's private residence or workplace when requested to do so; (l) contact with a debtor by a method which the debtor has asked not to be used, unless (i) there is no other method available; or (ii) the contact is by way of an action issued through the court or the threat of an action which the person to whom the debt is owed is entitled to issue through the court and which the person intends to take. 22 Pyramid selling
(1) A person must not establish, promote or take any part in a pyramid selling scheme. Penalty: 240 penalty units, in the case of a natural person. 600 penalty units, in the case of a body corporate.
32
s. 22
(2) A person must not induce another person to establish, promote or take any part in a pyramid selling scheme. Penalty: 240 penalty units, in the case of a natural person. 600 penalty units, in the case of a body corporate. (2A) Subsections (1) and (2) do not apply to a scheme for the supply of goods or services if any payment made or other benefit provided for the goods or services supplied under the scheme bears a reasonable relationship to the value of those goods or services.
Note Section 72 of the Criminal Procedure Act 2009 provides that if an Act creates an offence and provides any exception to the offence and the accused wishes to rely on the exception, the accused must present evidence that suggests a reasonable possibility of the existence of facts that, if they existed, would establish the exception.
Note to s. 22(2A) amended by No. 68/2009 s. 97(Sch. item 56.2).
(3) In this section pyramid selling scheme means a scheme for the supply of goods, services or financial benefit where (a) a person, in order to take part in the scheme, makes a payment or provides another benefit to or for the benefit of any other person, whether or not the other person is described in the scheme; and
S. 22(3) def. of pyramid selling scheme amended by No. 30/2003 s. 8(2)(a)(b).
33
s. 23
(b) the person who makes the payment or provides the benefit (i) receives a payment or other benefit; or (ii) receives the promise of a payment or other benefit or the promise that another person will receive a payment or other benefit for (iii) inducing or enabling any other person or persons to take part in the scheme; or (iv) enabling or assisting participants in the scheme to be promoted, transferred or to have their status changed; or (v) providing participants in the scheme with, or enabling participants in the scheme to be provided with, training, facilities or other services whether or not the scheme or any agreement under or related to the scheme is in writing. (4) The Governor in Council may, by Order published in the Government Gazette, declare that this section does not apply or did not at a particular time apply to the whole or any part of a scheme for the supply of goods, services or financial benefit. 23 Unsolicited prescribed cards
(1) A person must not give or send a prescribed card to another person except (a) in pursuance of a request in writing by the other person to do so; or
34
s. 23
(b) in renewal or replacement of, or in substitution for (i) a prescribed card of the same kind previously given or sent to the other person, and, in pursuance of a request in writing by the other person to the person who issued the card to do so; or (ii) a prescribed card of the same kind previously given or sent to the other person and used for a purpose for which it was intended to be used. Penalty: 240 penalty units, in the case of a natural person. 600 penalty units, in the case of a body corporate. (2) Subsection (1) applies only in relation to the giving or sending of a prescribed card by or on behalf of the person who issued the card. (3) A person must not take any action that enables another person (a) who has a credit card to use the card as a debit card; or (b) who has a debit card to use the card as a credit card except in accordance with a request in writing by the other person. Penalty: 600 penalty units, in the case of a natural person. 1200 penalty units, in the case of a body corporate.
35
s. 23
(4) In this section article includes a token, card or document; credit card means any article of a kind commonly known as a credit card or any similar article intended for use in obtaining cash, goods or services on credit, and includes any article of a kind commonly issued by persons carrying on business to customers or prospective customers of those persons for use in obtaining goods or services from those persons on credit; debit card means an article intended for use by a person in obtaining access to an account held by the person for the purpose of withdrawing or depositing cash or obtaining goods or services; prescribed card means any of the following (a) an electronic or magnetic card enabling the transfer of funds; (b) a stored value card; (c) a credit card; (d) a debit card; (e) an article that may be used as a credit card and a debit card; (f) any other prescribed article; stored value card means an article which has been encoded with monetary value which can be drawn upon and which may or may not be rechargeable.
36
s. 24
24 Right to payment for unsolicited goods or services (1) A person must not, in trade or commerce, assert a right to payment from another person for the supply of unsolicited goods or services unless the person who asserts the right has reasonable cause to believe that there is a right to payment. Penalty: 240 penalty units, in the case of a natural person. 600 penalty units, in the case of a body corporate. (2) In proceedings for an offence under subsection (1), the burden of proving that the accused had reasonable cause to believe there was a right to payment lies on the accused. 24A Right to payment for goods or services not supplied A person must not, in trade or commerce, assert a right to payment from another person for the supply of goods or services if, at the time of the assertion of the right to payment (a) no request for the goods or services had been made by or on behalf of the other person; and (b) the goods or services were not supplied. Penalty: 240 penalty units, in the case of a natural person. 600 penalty units, in the case of a body corporate.
Example This offence would apply to the sending of false invoices, that is invoices for goods or services that have not been supplied.
S. 24(2) amended by No. 68/2009 s. 97(Sch. item 56.3). S. 24A inserted by No. 103/2004 s. 4. S. 24(1) amended by No. 30/2003 s. 6(3)(a)(b).
37
s. 25
25 Liability of recipient of unsolicited goods (1) A person to whom unsolicited goods are supplied in trade or commerce, is not liable (a) to make any payment for the goods; or (b) for loss or damage as a result of the supply of the goods other than loss or damage resulting from a wilful and unlawful act done by that person in relation to the goods during the period determined in accordance with subsection (4). (2) Subject to subsection (3), if in trade or commerce, a person supplies unsolicited goods to another person (a) neither the supplier nor any person claiming on behalf of the supplier is entitled after the expiration of the period determined in accordance with subsection (4) to take action for the recovery of the goods from the person to whom the goods were supplied; and (b) upon the expiration of that period the goods become, by force of this section, the property of the person to whom the goods were supplied freed and discharged from all liens and charges of any description. (3) Subsection (2) does not apply to or in relation to unsolicited goods supplied to a person if (a) the person has at any time during the period determined in accordance with subsection (4) unreasonably refused to permit the supplier or the owner of the goods to take possession of the goods; or (b) the supplier or the owner of the goods has within the period taken possession of the goods; or
38
s. 25
(c) the goods were received by the person in circumstances in which the person knew, or might reasonably be expected to have known, that the goods were not intended for that person. (4) For the purposes of subsections (1), (2) and (3) the period referred to in those subsections is (a) if the person to whom the unsolicited goods were supplied gives notice with respect to the goods to the supplier in accordance with subsection (5) (i) the period of one month next following the day on which the notice is given; or (ii) the period of three months next following the day on which the goods were supplied to the person whichever first expires; or (b) in any other case, the period of three months next following the day on which the goods were supplied to the person. (5) A notice under subsection (4) must be in writing and must (a) state the name and address of the person to whom the goods were supplied; and (b) state the address at which possession may be taken of the goods if it is an address other than that of the person; and (c) contain a statement to the effect that the goods are unsolicited goods.
39
s. 26
26 Liability of recipient of unsolicited services A person to whom unsolicited services are supplied by another person, in trade or commerce, is not liable to make any payment for the services and is not liable for loss or damage as a result of the supply of the services. 27 Right to payment for unauthorised entries or advertisements
(1) If the publisher of a publication contacts another person directly and invites that person to place an entry or advertisement relating to that person or the profession, business, trade or occupation of that person in the publication, the publisher must not assert a right to payment for a charge for the placing of the entry or advertisement unless the person has given to the publisher (a) at the time of publication, a written instruction or authorisation for the placing of the entry or advertisement; or (b) at any time before publication, a written instruction or authorisation signed by the person to the placing of entries or advertisements in the nature of the entry or advertisement. Penalty: 240 penalty units, in the case of a natural person. 600 penalty units, in the case of a body corporate. (2) If the publisher of a publication contacts another person directly and invites that person to place an entry or advertisement relating to that person or the profession, business, trade or occupation of that person in the publication, that person (a) is not liable to make any payment to the publisher; and
40
s. 27
(b) is entitled to recover against the publisher, in a court of competent jurisdiction, any payment made to the publisher in full or part satisfaction of a charge for the placing of the entry or advertisement in the publication if the person has not given to the publisher (c) at the time of publication, a written instruction or authorisation for the placing of the entry or advertisement; or (d) at any time before publication, a written instruction or authorisation signed by the person for the placing of entries or advertisements in the nature of the entry or advertisement. (3) For the purposes of this section a person is deemed not to have given written instruction or authorisation for the placing of an entry or advertisement unless (a) a document giving instructions for or authorising the placing of the entry or advertisement has been signed by the person or by another person authorised by that person; and (b) a copy of the signed document has been given to the publisher before the right to payment for a charge is asserted; and (c) the document specifies (i) the name of the publication, the area of circulation of the publication and the total number of copies of the publication to be circulated; and (ii) the name and business address of the publisher; and
41
s. 27
(iii) the name and address of the person on whose behalf the publication is published; and (iv) particulars of the entry or advertisement; and (v) the date or dates on which the advertisement or entry is to appear in the publication; and (vi) the amount of the charge for the placing of the entry or advertisement or the basis on which the charge is, or is to be, calculated. (4) For the purposes of this section, an invoice or other document purporting to have been sent by or on behalf of a person is deemed to have been sent by the person unless the contrary is established. (5) This section does not apply to a publication which is published by a person (a) if the person is
S. 27(5)(a)(i) amended by No. 44/2001 s. 3(Sch. item 42.3), substituted by No. 30/2003 s. 9(1).
(i) a large proprietary company or a subsidiary of such a company or a listed corporation or a subsidiary of such a corporation; or (ii) the publisher of any publication which has an audited circulation of 10 000 copies or more per week, or a person which is a related body corporate to such a person; or (iii) a servant of the Crown, a body corporate which represents the Crown or a Council (within the meaning of the Local Government Act 1989); or (iv) any other prescribed person; and
42
s. 28
(b) if the person has not been found guilty of an offence under section 24. (6) In this section audited circulation in relation to a publication means the circulation of that publication as confirmed by the most recent audit of the publication by a body approved by the Director; large proprietary company has the same meaning as in the Corporations Act;
S. 27(6) def. of large proprietary company inserted by No. 30/2003 s. 9(2)(a). S. 27(6) def. of listed corporation inserted by No. 30/2003 s. 9(2)(a). S. 27(6) def. of publisher repealed by No. 30/2003 s. 9(2)(b). S. 27(6) def. of subsidiary inserted by No. 30/2003 s. 9(2)(a). S. 28 amended by No. 103/2004 s. 5.
listed corporation has the same meaning as in the Corporations Act;
subsidiary has the same meaning as in the Corporations Act. 28 When right to payment deemed to be asserted For the purposes of sections 24, 24A and 27, a person is deemed to assert a right to a payment if that person (a) makes a demand for the payment or asserts a present or prospective right to the payment; or (b) threatens to bring any legal proceedings with a view to obtaining the payment; or
43
s. 29
(c) places or causes to be placed on a list of debtors or defaulters the name of the person against whom the right to payment is being asserted, or threatens to do so, with a view to obtaining the payment; or (d) invokes or causes to be invoked any other collection procedure, or threatens to do so, with a view to obtaining the payment; or (e) sends any invoice or other document stating the amount of the payment or setting out the price of the goods or services or the charge for the placing of the entry or advertisement. 29 Address to be included in documents (1) A person who (a) publishes a document, statement or advertisement or causes a document, statement or advertisement to be published; or (b) gives a document, statement or advertisement to any person or causes a document, statement or advertisement to be given to any person to whom goods or services are or may be supplied that
S. 29(1)(c) amended by No. 30/2003 s. 10(1).
(c) is intended or likely to promote the supply of goods or services in trade or commerce; and (d) contains a reference to a means of contacting the person that does not include the name and the address of the place of business or residence of the person must include in the document, statement or advertisement (e) the name of the person or the business; and 44
s. 29
S. 29(1)(f) substituted by No. 30/2003 s. 10(2).
(f) one of the following (i) the full address (not being a post box) of the place of business or residence of the person; (ii) if the person is carrying on a business that is required to be licensed or registered under an Act, the relevant licence or registration number of the business or person;
Example This may include an LMCT number if the person is a car dealer or the person's registration or licence number if the person is a plumber.
(iii) if the person is carrying on a business under a business name registered under the Business Names Act 1962, the registered number of the business under that Act. Penalty: 60 penalty units, in the case of a natural person. 120 penalty units, in the case of a body corporate. (2) This section does not apply to a person who publishes or causes to be published, a document, statement or advertisement for prostitution services within the meaning of the Prostitution Control Act 1994. (3) A person, other than a person who publishes a document, statement or advertisement on the person's own behalf or a person referred to in subsection (1)(f)(ii) or (1)(f)(iii), is not required to comply with subsection (1)(f) if the person has provided to the publisher of the publication in which the document, statement or advertisement is to appear 45
S. 29(2) substituted by No. 30/2003 s. 10(3).
S. 29(3) inserted by No. 30/2003 s. 10(3), substituted by No. 106/2003 s. 4, amended by No. 17/2007 s. 3.
s. 30
(a) the name of the person or the business; and (b) the full address (not being a post box) of the place of business or residence of the person.
S. 29(4) inserted by No. 30/2003 s. 10(3).
(4) A publisher must record and keep all information provided to the publisher under subsection (3) for at least 12 months from the date it is received. Penalty: 60 penalty units, in the case of a natural person. 120 penalty units, in the case of a body corporate.
S. 29(5) inserted by No. 30/2003 s. 10(3).
(5) In this section, publish in relation to a document, statement or advertisement means to make the document, statement or advertisement generally known in any manner (including in an electronic form). 30 Mock auctions (1) A person must not promote or conduct or assist in the promotion or conduct of an auction (a) at which (i) a lot is sold or purported to be sold at a price lower than the highest bid for that lot; or (ii) part of the price for the sale or purported sale of a lot is repaid or credited to the person to whom the lot is sold or purported to be sold or is stated to be so repaid or credited; or (b) at which the right to bid for any lot is restricted or is stated to be restricted to persons who have bought or who have agreed to buy other goods or services; or
46
s. 31
(c) at which any goods or services are given away or offered as gifts. Penalty: 600 penalty units, in the case of a natural person. 1200 penalty units, in the case of a body corporate. (2) Subsection (1)(a) does not apply where the lower price, repayment or credit is (a) because of a defect discovered after the highest bid has been made and it is a defect of which the person conducting the auction was unaware when the bid was made; or (b) because of damage sustained after the bid has been made. (3) For the purposes of subsection (1), anything done in or about the place where an auction is held, if done in connection with the auction, is deemed to be done at the auction, whether or not it is done at the time of the auction or before or after the auction. (4) Nothing in this section derogates from any right of action or other remedy, whether civil or criminal, in proceedings instituted otherwise than under this Act. 31 Simplification of proof In any proceedings for an offence under section 30, evidence that a bid at an auction was stated to have been made by or on behalf of the person conducting the auction by an announcement made to the persons present at the auction is evidence, and in the absence of evidence to the contrary, is proof of the fact that the bid was made.
47
s. 32
32 Publications which are not prohibited (1) Sections 9, 10, 11, 12 and 20 do not apply to a publication which is made by an information provider in the course of carrying on the business of providing information unless the publication (a) is an advertisement; or (b) relates to (i) goods or services supplied or the possible supply of goods or services; or (ii) a business activity carried on by the information provider or, if the information provider is a body corporate, a related body corporate. (2) In this section information provider means any of the following (a) a person who holds a commercial television broadcasting licence under the Broadcasting Services Act 1992 of the Commonwealth; (b) the Australian Broadcasting Corporation; (c) the Special Broadcasting Service; (d) any other person who carries on the business of providing information. __________________
48
Fair Trading Act 1999 No. 16 of 1999 Part 2AImplied Conditions and Warranties in Certain Contracts of Supply
s. 32A
PART 2AIMPLIED CONDITIONS AND WARRANTIES IN CERTAIN CONTRACTS OF SUPPLY
Pt 2A (Heading and ss 32A32TA) inserted by No. 30/2003 s. 11 (as amended by No. 106/2003 ss 24(2)(5), 25).
Division 1Interpretation 32A Definitions In this Part contract of supply includes an agreement to supply; court in relation to any legal proceeding, includes the Tribunal and a person acting judicially; dealer means a person by whom or on whose behalf any antecedent negotiations are conducted but does not include the supplier or an agent of the supplier acting with the authority of the supplier; discharge in relation to a contract of supply of goods or services, means discharge of the contract so far as it is executory; innocent misrepresentation in relation to a contract of supply of goods or services means misrepresentation that is not fraudulent; lease includes hire; rescission in relation to a contract of supply of goods or services means avoidance of the contract as from its beginning.
S. 32A inserted by No. 30/2003 s. 11 (as amended by No. 106/2003 ss 24(2)(5), 25).
49
s. 32B
S. 32B inserted by No. 30/2003 s. 11 (as amended by No. 106/2003 ss 24(2)(5), 25).
32B What are conditions and warranties? (1) In this Part a reference to a condition in relation to a contract of supply of goods or services is a reference to a term of the contract the breach of which may give rise to a right to treat the contract as repudiated. (2) In this Part a reference to a warranty in relation to a contract of supply of goods or services is a reference to a term of the contract the breach of which may give rise to a claim for damages but not to a right to treat the contract as repudiated.
S. 32BA inserted by No. 30/2003 s. 11 (as amended by No. 106/2003 ss 24(2)(5), 25).
32BA What are antecedent negotiations? (1) In this Part a reference to antecedent negotiations in relation to a contract of supply of goods or services is a reference to any negotiations or arrangements conducted or made with the purchaser by a person (a) by which the purchaser was induced to enter into the contract with the supplier; or (b) which otherwise promoted the making of the contract. (2) In this Part a reference to a person by whom any antecedent negotiations are conducted is a reference to a person by whom the negotiations or arrangements concerned are conducted or made.
S. 32C inserted by No. 30/2003 s. 11 (as amended by No. 106/2003 ss 24(2)(5), 25).
32C When is a person aware of a fact, matter or circumstance? (1) For the purposes of this Part, a person is not deemed to be aware of a fact, matter or circumstance by reason only that the person has signed a document or writing (a) stating that fact, matter or circumstance; or (b) stating that the person is aware of that fact, matter or circumstance.
50
s. 32CA
(2) For the purposes of this Part, a person is deemed to be aware of a fact, matter or circumstance if the person has been informed or learnt of it in a manner and in circumstances that would reasonably be expected to cause a reasonable person to become aware of the fact, matter or circumstance. Division 2Application of Part 32CA Application of Part This Part applies to contracts of supply of goods or services entered into on or after the commencement of section 11 of the Fair Trading (Amendment) Act 2003.
Note Part IV of the Goods Act 1958 continues to apply to contracts of sale of goods or services and leases (within the meaning of that Part) entered into before the commencement of section 75 of the Fair Trading (Amendment) Act 2003. See section 122 of the Goods Act 1958.
S. 32CA inserted by No. 30/2003 s. 11 (as amended by No. 106/2003 ss 24(2)(5), 25).
32D This Part applies to certain kinds of contracts (1) In this Part a reference to a contract of supply of goods or services is a reference to a contract of supply of goods or services where the cash price of the goods or services (a) is not more than $40 000; or (b) is more than $40 000 and the goods or services are of a kind ordinarily acquired for personal, domestic or household use or consumption.
Note The definition of supply in section 3 includes supply by way of lease.
S. 32D inserted by No. 30/2003 s. 11 (as amended by No. 106/2003 ss 24(2)(5), 25).
51
s. 32DA
(2) If an amount greater than $40 000 is prescribed by the regulations for the purposes of this section, a reference in this section to $40 000 is a reference to the prescribed amount.
S. 32DA inserted by No. 30/2003 s. 11 (as amended by No. 106/2003 ss 24(2)(5), 25).
32DA This Part does not apply to certain kinds of contracts (1) In this Part a reference to a contract of supply of goods or services does not include a reference to (a) a contract of supply of goods where a purchaser purchases, or holds out as purchasing, the goods for the purpose of re-supply; or (b) a contract of supply of raw materials or goods that are ordinarily acquired for the purposes of repairing or treating other goods or fixtures on land or being incorporated in other goods, where a purchaser purchases, or holds out as purchasing, the goods for the purpose of transforming them or incorporating them in other goods, in trade or commerce, in the course of (i) a process of production or manufacture; or (ii) repairing or treating other goods or fixtures on land; or (c) a contract of supply of services where the purchaser of those services has contracted to provide those services, or goods or services including those services, to a third person; or (d) a contract of supply of goods or services entered into before the commencement of section 11 of the Fair Trading (Amendment) Act 2003.
52
s. 32E
(2) Sections 32NA, 32O, 32P and 32PA do not apply to a contract of supply by way of lease of goods. (3) In subsection (1) a reference to the re-supply of goods purchased from a person includes a reference to (a) a supply of the goods to another person in an altered form or condition; and (b) a supply to another person of goods in which the first-mentioned goods have been incorporated. 32E How is cash price determined for contracts generally? (1) Subject to subsection (2), cash price in section 32D in relation to a contract of supply of goods or services means the amount paid or payable by the purchaser for the goods or services. (2) If under a contract of supply of goods or services, a purchaser purchases goods or services together with other property or services and a specified price is not allocated to the goods or services in the contract or agreement, cash price in section 32D in relation to the goods or services means (a) the price at which, at the time at which the contract is made, the purchaser could have purchased from the supplier the goods or services without the other property or services; or (b) if, at the time at which the contract is made, the goods or services were not available for purchase from the supplier except together with other property or services but, at that time, goods or services of the kind purchased were available for purchase from another supplier without other property or services the lowest price at which the purchaser could, at that time, reasonably have 53
S. 32E inserted by No. 30/2003 s. 11 (as amended by No. 106/2003 ss 24(2)(5), 25).
s. 32EA
purchased goods or services of that kind from another supplier; or (c) if, at the time at which the contract is made, goods or services of the kind purchased were not available for purchase from any supplier except together with other property or servicesthe value of the goods or services at that time. (3) This section does not apply to a contract of supply of goods by way of lease.
S. 32EA inserted by No. 30/2003 s. 11 (as amended by No. 106/2003 ss 24(2)(5), 25).
32EA How is cash price determined for leases of goods? In section 32D cash price in relation to a contract of supply of goods by way of lease means (a) if at the time the contract is made the goods are available for purchase from the supplierthe lowest price at which the purchaser might have purchased the goods from the supplier; or (b) if at the time the contract is made, the goods are reasonably available for purchase but are not available for purchase from the supplier or are available for purchase only together with other property or servicesthe lowest price at which, at that time, the purchaser could reasonably have purchased goods of that kind; or (c) if at the time the contract is made, the goods are not available for purchase or are available for purchase only together with other property or servicesthe value of the goods at that time.
54
s. 32EB
S. 32EB inserted by No. 30/2003 s. 11 (as amended by No. 106/2003 ss 24(2)(5), 25).
32EB Presumption that this Part applies to supply If it is alleged in any proceeding under this Part or in any other proceeding in respect of a matter arising under this Part that a contract of supply of goods or services is a contract to which this Part applies, it is to be presumed, unless the contrary is established, that this Part applies to the contract. 32F Application of Part to mixed contracts Despite anything to the contrary in this Part, this Part applies in relation to (a) a contract of supply of goods, whether or not the contract includes a supply of services; and (b) a contract of supply of services, whether or not the contract includes a supply of goods. 32FA Application of Goods Act 1958 to contracts of supply (1) Sections 16(3), 17, 18, 19(a) and (b) and 20 of the Goods Act 1958 do not apply to contracts of supply to which this Part applies. (2) Section 4(2) of the Goods Act 1958 is deemed to apply in relation to this Part as if (a) the reference to Part was a reference to this Part; and (b) the reference to contracts for the sale of goods included a reference to contracts of supply of goods. (3) A reference in Part I of the Goods Act 1958 to a condition includes a reference to a condition within the meaning of this Part. (4) A reference in Part I of the Goods Act 1958 to a warranty includes a reference to a warranty within the meaning of this Part.
S. 32F inserted by No. 30/2003 s. 11 (as amended by No. 106/2003 ss 24(2)(5), 25).
S. 32FA inserted by No. 30/2003 s. 11 (as amended by No. 106/2003 ss 24(2)(5), 25).
55
s. 32G
(5) Except as otherwise expressly provided by this Part, nothing in this Part affects the application to a contract of supply of goods or services of the Goods Act 1958 or any other Act or law. Division 3Supply of goods or services
S. 32G inserted by No. 30/2003 s. 11 (as amended by No. 106/2003 ss 24(2)(5), 25).
32G Terms implied in contracts as to right to supply (1) Subject to section 32GA, in a contract of supply of goods there is (a) an implied condition that (i) in the case of a contract, not being an agreement to supply, the supplier has a right to supply the goods; and (ii) in the case of an agreement to supply, the supplier will have a right to supply the goods at the time when the property is to pass; and (b) an implied condition that, at the time the property in the goods is to pass, the goods will be free from any charge or encumbrance other than a charge or encumbrance (i) of which the purchaser is aware when the supply is made; and (ii) subject to which the purchaser has agreed to accept the goods; and (c) an implied warranty that the purchaser will enjoy quiet possession of the goods, except as far as it may be disturbed by a person entitled to the benefit of a charge or encumbrance (i) of which the purchaser is aware when the supply is made; and (ii) subject to which the purchaser has agreed to accept the goods. 56
s. 32GA
(2) This section does not apply to a contract of supply of goods by way of lease. 32GA Transfer of limited interest in goods (1) Section 32G does not apply to a contract of supply of goods if (a) it appears from the contract, or is to be inferred from the circumstances of the supply, that the supplier intends to transfer only such right, title or interest as the supplier or a third party may have; and (b) the purchaser is aware when the contract is made that it is a contract under which the supplier intends to transfer only such right, title or interest as the supplier or a third party may have. (2) In a contract of supply of goods referred to in subsection (1) there is (a) an implied condition that (i) in the case of a contract, not being an agreement to supply, the supplier has a right to transfer that right, title or interest in the goods; and (ii) in the case of an agreement to supply, the supplier will have a right to transfer that right, title or interest in the goods at the time when the property is to pass; and (b) an implied condition that, when the property is to pass, there will be no other right, title or interest in the goods of which, when the contract is made, the supplier is aware but the purchaser is not aware; and
S. 32GA inserted by No. 30/2003 s. 11 (as amended by No. 106/2003 ss 24(2)(5), 25).
57
s. 32GB
(c) an implied condition that at the time the property in the goods is to pass the goods will be free from any charge or encumbrance other than a charge or encumbrance subject to which the purchaser has agreed to accept the goods; and (d) an implied warranty that the purchaser's quiet possession of the goods will not be disturbed by (i) the supplier; or (ii) if the parties to the contract intend that the supplier should transfer only such right, title or interest as a third person may havethat third person; or (iii) anyone claiming through or under the supplier or that third person otherwise than under a charge or encumbrance subject to which the purchaser has agreed to accept the goods. (3) This section does not apply to a contract of supply of goods by way of lease.
S. 32GB inserted by No. 30/2003 s. 11 (as amended by No. 106/2003 ss 24(2)(5), 25). S. 32H inserted by No. 30/2003 s. 11 (as amended by No. 106/2003 ss 24(2)(5), 25).
32GB Terms implied in leases as to right to hire In a contract of supply of goods by way of lease, there is an implied condition that the supplier has a right to lease the goods to the purchaser for the period of the lease. 32H Supply of goods by description (1) In a contract of supply of goods by description there is an implied condition that the goods will correspond with the description. (2) If the supply is by sample as well as by description, it is not sufficient that the goods correspond with the sample if the goods do not also correspond with the description.
58
s. 32HA
S. 32HA inserted by No. 30/2003 s. 11 (as amended by No. 106/2003 ss 24(2)(5), 25).
32HA Supply of goods by sample (1) The conditions set out in subsection (3) are implied in a contract of supply of goods in which there is a term, express or implied, to the effect that the supply is a supply of goods by sample. (2) The conditions set out in subsection (3) are implied in a contract of supply of goods if, before entering into the contract, the supplier, or in the course of any antecedent negotiations to a supply of goods, a dealer or a person acting on behalf of the supplier (a) shows to the purchaser a sample of goods; and (b) the purchaser is induced by the showing of the sample to purchase the goods or goods of the same kind. (3) The conditions implied in a contract of supply of goods under subsection (1) or (2) are (a) an implied condition that the goods will correspond with the sample in quality; and (b) an implied condition that the purchaser will have a reasonable opportunity of comparing the goods with the sample; and (c) an implied condition that the goods will be free from any defect, rendering them unmerchantable (i) that would not be apparent on reasonable examination of the sample; and (ii) of which the purchaser is not aware when the contract is made.
59
s. 32I
(4) For the purposes of this section, a contract of supply of goods or services may be a contract of supply by sample even though the sample is not part of the bulk of the goods or services.
S. 32I inserted by No. 30/2003 s. 11 (as amended by No. 106/2003 ss 24(2)(5), 25).
32I Merchantable quality of goods supplied (1) In a contract of supply of goods by a supplier who supplies the goods in the course of a business, there is an implied condition that the goods are of merchantable quality. (2) For the purposes of subsection (1), goods are of merchantable quality if they are as fit for the purposes for which goods of that kind are commonly purchased as is reasonable to expect having regard to (a) the price of the goods; and (b) the terms of the contract of supply; and (c) the apparent condition of the goods when the supply is made; and (d) all other relevant circumstances. (3) The condition in a contract of supply of goods referred to in subsection (1) does not extend to (a) defects of which the purchaser is aware when the supply is made; or (b) if the purchaser has examined the goods or a sample of the goods before the contract is madedefects that the examination ought to have revealed.
S. 32IA inserted by No. 30/2003 s. 11 (as amended by No. 106/2003 ss 24(2)(5), 25).
32IA Fitness of goods for purpose (1) If, in a contract of supply of goods by a supplier who supplies the goods in the course of a business, the purchaser expressly or by implication (a) makes known to the supplier; or
60
s. 32J
(b) in the course of any antecedent negotiations, makes known to a dealer or to a person acting on behalf of the supplier the particular purpose for which the goods are required, there is an implied condition that the goods are reasonably fit for that purpose. (2) Subsection (1) does not apply if the circumstances show that the purchaser does not rely, or that it is unreasonable for the purchaser to rely, on the skill or judgment of the supplier, dealer or other person. 32J Implied conditions in supply of services In a contract of supply of services there is (a) an implied condition that the services will be rendered with due care and skill; and (b) in the case of a supply of services by a person who supplies the services in the course of a business, an implied condition that the services are as fit for the purposes for which services of that kind are commonly purchased as it is reasonable to expect having regard to the price of the services, the terms of the supply and all other relevant circumstances. 32JA Fitness of services for purpose (1) If, in a contract of supply of services by a person who supplies the services in the course of a business (other than services of a professional nature provided by a qualified architect or engineer), the purchaser expressly or by implication (a) makes known to the supplier; or
S. 32J inserted by No. 30/2003 s. 11 (as amended by No. 106/2003 ss 24(2)(5), 25).
S. 32JA inserted by No. 30/2003 s. 11 (as amended by No. 106/2003 ss 24(2)(5), 25).
61
s. 32K
(b) in the course of any antecedent negotiations, makes known to a dealer or to a person acting on behalf of the supplier the particular purpose for which the services are required or the result that the purchaser desires the services to achieve, there is an implied condition that the services are reasonably fit for that purpose or are such as might reasonably be expected to achieve that result. (2) Subsection (1) does not apply if the circumstances show that the purchaser does not rely, or that it is unreasonable for the purchaser to rely, on the skill or judgment of the supplier, dealer or other person.
S. 32K inserted by No. 30/2003 s. 11 (as amended by No. 106/2003 ss 24(2)(5), 25).
32K Supply of services by demonstration (1) The conditions set out in subsection (3) are implied in a contract of supply of services in which there is a term, express or implied, to the effect that the supply is a supply of services of the kind that are shown to the purchaser in a demonstration, or that achieve a particular result shown to the purchaser. (2) The conditions set out in subsection (3) are implied in a contract of supply of services, if, before entering the contract, the supplier, or in the course of any antecedent negotiations, a dealer or a person acting on behalf of the supplier (a) shows to the purchaser a demonstration of, or a result achieved by, services; and (b) the purchaser is induced by the demonstration or by the showing of the result to purchase services of that kind.
62
s. 32KA
(3) The conditions implied in a contract of supply of services under subsection (1) or (2) are (a) an implied condition that the services will correspond in nature and quality with the services shown in the demonstration or will correspond in quality with the services that achieved that result; and (b) an implied condition that the services will be free from any defect rendering them unfit for the purposes for which services of that kind are commonly purchased (i) that would not be apparent on reasonable examination of the services shown in the demonstration or the result achieved by services of that kind; and (ii) of which the purchaser is not aware when the contract is made. 32KA Terms implied in contracts of supply of both services and goods (1) A term of a contract of supply of both goods and services is to be treated for the purposes of this Part as a condition of that contract if the term (a) would be a condition of the contract if it were a contract of supply only of the goods; or (b) would be a condition of the contract if it were a contract of supply only of the services. (2) Subsection (1) does not apply if, having regard to the contract as a whole, it is shown that the term ought not to be treated as a condition of the contract.
S. 32KA inserted by No. 30/2003 s. 11 (as amended by No. 106/2003 ss 24(2)(5), 25).
63
s. 32KAB
(3) For the purposes of this section, a statement in a contract of supply to the effect that a term is not a condition does not of itself establish that the term should not be treated as a condition. (4) Despite anything to the contrary in subsection (1), a reference in that subsection to a supply of goods includes a reference to the supply of materials in connection with a supply of services. (5) Subsection (4) does not apply to materials supplied in connection with a supply of services of a professional nature provided by a qualified architect or engineer, other than in relation to the condition of merchantable quality contained in section 32I.
S. 32KAB inserted by No. 30/2003 s. 11 (as amended by No. 106/2003 ss 24(2)(5), 25).
32KAB Certain agreements excluded A reference in sections 32J, 32JA, 32K and 32KA(1) to services does not include a reference to services (or any materials supplied in connection with those services) that are, or are to be, provided, granted or conferred under (a) a contract for or in relation to the transportation or storage of goods for the purposes of a business, trade, profession or occupation carried on or engaged in by the person for whom the goods are transported or stored; or (b) a contract of insurance.
S. 32L inserted by No. 30/2003 s. 11 (as amended by No. 106/2003 ss 24(2)(5), 25).
32L Contract cannot exclude this Part (1) A term of a contract of supply of goods or services (including a term that is not set out in the contract but is incorporated in the contract by another term of the contract) is void if the term purports to exclude, restrict or modify or purports to have the effect of excluding, restricting or modifying
64
s. 32LA
(a) the application in relation to that supply of all or any of the provisions of this Part; or (b) the exercise of a right conferred by such a provision; or (c) any liability of the supplier for breach of a condition or warranty implied by such a provision. (2) A term of a contract of supply of goods or services must not be taken to exclude, restrict or modify the application of a provision of this Part unless the term does so expressly or is inconsistent with that provision. 32LA Contract cannot exclude liability for damages Subject to sections 32MA and 32N, a contract of supply of goods or services or a provision in or that relates to a contract of supply of goods or services is void if the contract or provision (a) excludes, restricts or modifies or purports to have the effect of excluding, restricting or modifying liability for damages in respect of a breach by a supplier of a condition or warranty implied by this Part in a contract; or (b) limits or purports to have the effect of limiting the amount of damages that may be recovered by a purchaser in respect of a breach by a supplier of a condition or warranty implied by this Part in a contract; or (c) requires a purchaser to indemnify a supplier in respect of damages payable for breach of a condition or warranty implied by this Part in a contract; or
S. 32LA inserted by No. 30/2003 s. 11 (as amended by No. 106/2003 ss 24(2)(5), 25).
65
s. 32M
(d) provides that a purchaser is not entitled to damages, or is entitled only to a limited amount of damages, in respect of a breach by a supplier of a condition or warranty implied by this Part in a contract unless the purchaser takes such steps or follows such procedures as, but for the provision, a purchaser would not reasonably be expected to take or follow.
S. 32M inserted by No. 30/2003 s. 11 (as amended by No. 106/2003 ss 24(2)(5), 25).
32M Penalties for including void provisions (1) A supplier must not include or permit to be included in a contract of supply of goods or services a provision that by reason of section 32L is void. Penalty: 60 penalty units, in the case of a natural person. 120 penalty units, in the case of a body corporate. (2) Subject to sections 32MA and 32N, if there is a contract of supply of goods or services or a provision in or relating to a contract of supply of goods or services of a kind referred to in section 32LA, the supplier is guilty of an offence and liable to a penalty not exceeding 60 penalty units, in the case of a natural person or 120 penalty units, in the case of a body corporate.
S. 32MA inserted by No. 30/2003 s. 11 (as amended by No. 106/2003 ss 24(2)(5), 25).
32MA Limitation of liability generally (1) Subject to subsections (2) and (3), a term of a contract of supply of goods or services is not void under section 32L or 32LA by reason only that the term limits the liability of the supplier for breach of a condition or warranty to (a) in the case of goods, any one or more of the following (i) the replacement of the goods or the supply of equivalent goods;
66
s. 32MA
(ii) the repair of the goods; (iii) the payment of the cost of replacing the goods or of purchasing equivalent goods; (iv) the payment of the cost of having the goods repaired; or (b) in the case of services (i) the supply of the services again; or (ii) the payment of the cost of having the services supplied again. (2) Subsection (1) does not apply in relation to a term of a contract of supply of goods or services if the purchaser establishes that it is unconscionable for the supplier to rely on that term. (3) In determining for the purposes of subsection (2) whether or not reliance on a term is unconscionable and without in any way limiting the matters to which a court or the Tribunal may have regard, a court or the Tribunal may have regard to all the circumstances of the case and in particular to the following matters (a) the relative strengths of the bargaining positions of the supplier and the purchaser; and (b) whether the term was reasonably necessary for the protection of the legitimate interests of the supplier; and (c) whether the purchaser was able to understand the term or any documents relating to the term, including whether, when the supply was made, the purchaser was aware of the existence and extent of the term (having regard, among other things, to any custom of the trade or any previous course of dealing between the parties); and 67
s. 32N
(d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against the purchaser or a person acting on behalf of the purchaser by the supplier or a person acting on behalf of the supplier in relation to the term; and (e) the amount for which, and the circumstances under which, the purchaser could have been supplied with identical or equivalent goods or services from a person other than the supplier under a contract that did not include the term; and (f) in the case of a supply of goods, whether the goods were manufactured, processed or adapted to the special order of the purchaser. (4) This section does not apply to the supply of goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption. (5) This section does not apply to allow a limitation of liability for a breach of a condition or warranty implied by section 32G, 32GA or 32GB.
S. 32N inserted by No. 30/2003 s. 11 (as amended by No. 106/2003 ss 24(2)(5), 25).
32N Limitation of liability in relation to supply of recreational services (1) Subject to subsection (2), a term of a contract of supply of recreational services is not void under section 32L or 32LA by reason only that the term excludes, restricts or modifies, or has the effect of excluding, restricting or modifying (a) the application of section 32J or 32JA to the supply of the recreational services under the contract; or (b) the exercise of a right conferred by section 32J or 32JA in relation to the supply of the recreational services under the contract; or 68
s. 32N
(c) any liability of the supplier for a breach of condition implied by section 32J or 32JA in relation to the supply of the recreational services under the contract. (2) Subsection (1) only applies if (a) the contract of supply of recreational services was entered into on or after the commencement of section 11 of the Fair Trading (Amendment) Act 2003; and (b) the exclusion, restriction or modification contained in the term is limited to liability for death or personal injury; and (c) the term (i) contains the prescribed particulars (if any) and is in the prescribed form (if any); or (ii) is specified, or is of a class of term specified, in an Order made under section 32NA; and (d) if there is a prescribed form for the term, the supplier has not made a false or misleading statement as to a material particular in or in relation to the term; and (e) the term was brought to the attention of the purchaser prior to the supply of the recreational services. (3) Despite subsection (1), a person is not entitled to rely on a term of a contract in relation to the supply of recreational services which complies with subsection (2) if (a) the person has done or omitted to do something in relation to the supply of those recreational services that but for subsection (1) would
69
s. 32N
(i) be an act or omission to which section 32J or 32JA would apply; or (ii) give rise to the exercise of a right conferred by section 32J or 32JA; or (iii) be a breach of a condition implied by section 32J or 32JA; and (b) the act or omission was done or omitted to be done with reckless disregard, with or without consciousness, for the consequences of the act or omission. (4) In this section disease includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development and whether of genetic or other origin; injury means any physical or mental injury; personal injury means (a) an injury of a natural person (including the aggravation, acceleration or recurrence of an injury of the individual); or (b) the contraction, aggravation, acceleration or recurrence of a disease of a natural person; or (c) the coming into existence, the aggravation, acceleration or recurrence of any other condition, circumstance, occurrence, activity, form of behaviour, course of conduct or state of affairs in relation to a natural person that is or may be harmful or disadvantageous to, or result in harm or disadvantage to
70
s. 32NA
(i) the person; or (ii) the community; recreational services means services that consist of participation in (a) a sporting activity or a similar leisuretime pursuit; or (b) any other activity that (i) involves a significant degree of physical exertion or physical risk; and (ii) is undertaken for the purposes of recreation, enjoyment or leisure. (5) The definition of injury in subsection (4) does not, by implication, affect the meaning of the expression injury when used in a provision of this Act other than this section. 32NA Exemption from waiver form requirement (1) The Governor in Council, on the recommendation of the Minister, may, by order published in the Government Gazette, provide that a specified term of a contract of supply of recreational services, or a class of such term, does not need to comply with the requirements of section 32N(2)(c)(i). (2) The Governor in Council may make an Order under this section subject to any conditions the Governor in Council thinks fit and specifies in the Order. (3) An Order under this section has effect according to its terms. (4) The Governor in Council, on the recommendation of the Minister, may, by Order published in the Government Gazette, vary or revoke an Order made under this section.
S. 32NA inserted by No. 30/2003 s. 11 (as amended by No. 106/2003 ss 24(2)(5), 25).
71
s. 32NB
(5) An Order made under this section ceases to have effect on (a) the expiry of the anniversary of the date the Order was published in the Government Gazette; or (b) if an earlier expiry date is specified in the Order, that earlier date. (6) On or before the 6th sitting day after an Order under this section is published in the Government Gazette, the Minister must ensure that a copy of the Order is laid before each House of the Parliament. (7) A failure to comply with subsection (6) does not affect the operation or effect of the Order but the Scrutiny of Acts and Regulations Committee of the Parliament may report the failure to each House of Parliament. (8) An Order may be disallowed in whole or in part by either House of Parliament. (9) Part 5 of the Subordinate Legislation Act 1994 applies to an Order as if (a) a reference in that Part to a "statutory rule" were a reference to the Order; and (b) a reference in section 23(1)(c) of that Part to "section 15(1)" were a reference to subsection (6) of this section.
S. 32NB inserted by No. 30/2003 s. 11 (as amended by No. 106/2003 ss 24(2)(5), 25).
32NB Supplier to have reasonable opportunity to make good title If, in a contract of supply of goods, the supplier is in breach of an implied condition referred to in paragraph (a) or (b) of section 32G(1), or in paragraph (a), (b) or (c) of section 32GA(2), or an express term to a similar effect, the purchaser may not discharge the contract on the ground of the breach unless 72
s. 32O
(a) the purchaser has given notice to the supplier to the effect that the purchaser will discharge the contract unless the supplier within a reasonable time provides the title to the goods required by the supply or removes the charge or encumbrance on the goods, as the case may be; and (b) the supplier has not, within a reasonable time after the notice was given, provided the title required by the contract or removed the charge or encumbrance, as the case may be. 32O Acceptance of goods (1) If a contract of supply of goods is not severable and the purchaser has accepted the goods or part of the goods, the breach by the supplier of a condition can only be treated as the breach of a warranty and not as a ground for rejecting the goods and discharging the contract of supply unless there is a term of the contract, express or implied, to that effect. (2) Subsection (3) applies if under a contract of supply of goods (a) the goods at the time of delivery to the purchaser are defective in breach of a condition implied by this Part in the contract of supply; and (b) the fact that they are so defective is apparent at that time or becomes apparent within a reasonable period after that time; and (c) the purchaser has not done any act or thing by reason of which the goods cannot be returned to the supplier in substantially the same state as they were in when they were delivered to the purchaser.
S. 32O inserted by No. 30/2003 s. 11 (as amended by No. 106/2003 ss 24(2)(5), 25).
73
s. 32O
(3) Despite section 42 of the Goods Act 1958, the purchaser under a contract of supply of goods to which this subsection applies is not to be deemed to have accepted the goods by reason only that, during a reasonable period after it is apparent that the goods are defective (a) the purchaser retained or used the goods; or (b) the purchaser did not inform the supplier that the purchaser had rejected the goods. (4) If goods have been delivered under a contract of supply and the purchaser, before accepting the goods, by agreement with the supplier delivers them to the supplier or to a person nominated by the supplier for repair or replacement, the purchaser is not to be deemed to have accepted the goods within the meaning of section 42 of the Goods Act 1958 until the purchaser has so accepted them after the delivery of the goods to the purchaser after the repair or replacement.
S. 32O(5) amended by No. 19/2009 s. 17(1).
(5) This section does not limit the time within which a purchaser under a contract of supply of goods may, by reason of the breach of a condition referred to in section 32NB, reject the goods and discharge the contract of supply. (6) Nothing in this section confers on a purchaser a right to discharge a contract of supply of goods where the goods (a) are rendered unmerchantable after delivery to the purchaser; or (b) are damaged by abnormal use after delivery to the purchaser.
74
s. 32OA
S. 32OA inserted by No. 30/2003 s. 11 (as amended by No. 106/2003 ss 24(2)(5), 25).
32OA Rescission for innocent misrepresentation (1) If a purchaser enters into a contract of supply of goods after an innocent misrepresentation is made to the purchaser and, if the misrepresentation had been fraudulent, the purchaser would have been entitled to rescind the contract by reason of the misrepresentation, the purchaser may rescind the contract by notice given to the supplier before, or within a reasonable period after (a) in the case of a contract of supply by way of lease, delivery of the goods; and (b) in any other case, acceptance of the goods. (2) Subsection (1) applies whether or not the misrepresentation has become a term of the contract. 32P Discharge or rescission of contract of supply of goods (1) This section applies if a purchaser (a) discharges a contract of supply of goods by reason of repudiation or breach of condition by the supplier; or (b) in accordance with section 32OA(1) rescinds a contract of supply of goods after an innocent misrepresentation is made. (2) If the goods have been delivered to the purchaser and have not been returned to the supplier, the purchaser must return the goods to the supplier or permit the supplier to take possession of the goods. (3) The purchaser is liable to the supplier for loss or damage caused to the goods (a) by the purchaser wilfully or by the purchaser's negligence while the goods are in the purchaser's possession during a period of
S. 32P inserted by No. 30/2003 s. 11 (as amended by No. 106/2003 ss 24(2)(5), 25).
75
s. 32PA
21 days after discharging or rescinding the contract; and (b) by the purchaser wilfully while the goods are in the purchaser's possession after the expiration of a period of 21 days after discharging or rescinding the contract. (4) If the property in the goods passed to the purchaser before the discharge or the rescission, the property re-vests in the supplier. (5) The supplier is liable to the purchaser for money paid and for the value of any other consideration paid or provided under the contract by the purchaser to the supplier. (6) If (a) the purchaser used the goods before the discharge or rescission; and (b) the supplier acted honestly and reasonably in supplying the goods the court may, if it is satisfied that, in all the circumstances, it is just and convenient to do so, allow the supplier to recover from the purchaser an amount equal to the whole or any part of the fair value to the purchaser of the purchaser's use of the goods.
S. 32PA inserted by No. 30/2003 s. 11 (as amended by No. 106/2003 ss 24(2)(5), 25).
32PA When does a discharge or rescission have effect? If a purchaser purports to discharge or rescind a contract of supply of goods, the purported discharge or rescission has effect only if (a) the supplier is aware that the purchaser treats the contract as at an end, whether by reason of the return of the goods to the supplier or by reason of any other information which comes to the knowledge of the supplier; or
76
s. 32Q
(b) if the purchaser is unable, due to the conduct or omission of the supplier, after taking reasonable steps, to inform the supplier or to cause the supplier to become aware that the purchaser treats the contract as at an end (i) the purchaser treats the contract as at an end; and (ii) by the purchaser's conduct, shows unequivocally that the purchaser treats the contract as at an end. 32Q Liability of supplier and person conducting antecedent negotiations (1) In a contract of supply of goods or services, a representation made to the purchaser in the course of any antecedent negotiations by a dealer or by a person acting on behalf of the supplier (otherwise than as an agent of the supplier acting with the authority of the supplier) confers on the purchaser (a) as against the supplier, the same right to rescind the contract and the same right of action in damages as the purchaser would have had if the representation had been made by an agent of the supplier acting with the authority of the supplier; and (b) as against the person by whom the representation was made, the same right of action in damages as the purchaser would have had if the purchaser had purchased the goods or services from that person; and (c) if the antecedent negotiations were conducted on behalf of another person, as against that other person the same right of action in damages as the purchaser would have had if the purchaser had purchased the goods or services from that other person. 77
S. 32Q inserted by No. 30/2003 s. 11 (as amended by No. 106/2003 ss 24(2)(5), 25).
s. 32Q
(2) In a contract of supply of goods or services, a warranty given to the purchaser in the course of any antecedent negotiations by a dealer or by a person acting on behalf of the supplier (otherwise than as an agent of the supplier acting with the authority of the supplier) confers on the purchaser (a) as against the person by whom the warranty was given, the same right of action in damages as the purchaser would have had if (i) the warranty had been given in consideration of the purchaser purchasing the goods or services from that person; and (ii) the purchaser had purchased the goods or services from that person; and (b) if the antecedent negotiations were conducted on behalf of a dealer, as against the dealer the same right of action in damages as the purchaser would have had if (i) the warranty had been given in consideration of the purchaser purchasing the goods or services from the dealer; and (ii) the purchaser had purchased the goods or services from the dealer. (3) For the purposes of subsections (1) and (2) it is immaterial whether or not the goods or services supplied to the purchaser were purchased by the supplier from a dealer by whom or on whose behalf any antecedent negotiations were conducted. (4) Nothing in this section prevents a statement being both a representation and a warranty. 78
s. 32QA
(5) Nothing in this section confers on a purchaser an entitlement to an amount of damages arising from a representation or a warranty exceeding the amount of the loss suffered by the purchaser. 32QA Indemnity for supplier or dealer (1) Without prejudice to any other rights or remedies to which a supplier may be entitled, a supplier is entitled to be indemnified (a) by a person by whom any antecedent negotiations were conducted who made a representation or gave a warranty; and (b) by a dealer on whose behalf any antecedent negotiations were conducted by another person who made a representation or gave a warranty against any damage suffered by the supplier by reason of the operation of section 32Q. (2) Without prejudice to any other rights or remedies to which a dealer may be entitled, a dealer is entitled to be indemnified by a person who conducted any antecedent negotiations on behalf of the dealer and made a representation or gave a warranty against any damage suffered by the dealer by reason of the operation of section 32Q. 32R Certain contracts or provisions void A contract of supply of goods or services or a provision in or that relates to a contract of supply of goods or services that purports to have the effect of excluding, restricting or modifying the provisions of section 32Q or 32QA or purports to have the effect of precluding a right of action or a defence based on or arising out of a representation or a warranty referred to in section 32Q(1) or (2), is void.
S. 32R inserted by No. 30/2003 s. 11 (as amended by No. 106/2003 ss 24(2)(5), 25). S. 32QA inserted by No. 30/2003 s. 11 (as amended by No. 106/2003 ss 24(2)(5), 25).
79
s. 32RA
S. 32RA inserted by No. 30/2003 s. 11 (as amended by No. 106/2003 ss 24(2)(5), 25).
32RA Penalty for including void provision relating to antecedent negotiations A supplier or a person by whom or on whose behalf any antecedent negotiations are conducted must not include or permit to be included in a contract of supply of goods or services a provision that by reason of section 32R is void. Penalty: 60 penalty units, in the case of a natural person. 120 penalty units, in the case of a body corporate. Division 4General
S. 32S inserted by No. 30/2003 s. 11 (as amended by No. 106/2003 ss 24(2)(5), 25).
32S Implied terms do not negative express terms unless inconsistent A condition or warranty implied by this Part in a contract of supply of goods or services does not negative an express term in the contract except to the extent that the express term is inconsistent with the implied condition or warranty. 32SA Limit of liability of guarantors (1) If there is a contract of guarantee in relation to the performance of the obligations of a purchaser under a contract of supply of goods or services, the liability of the guarantor in relation to the performance of those obligations does not include liability in respect of an amount exceeding the sum of (a) the amount for which the purchaser is liable by reason of the breach of the contract of supply; and (b) the reasonable costs of and incidental to enforcing the contract of guarantee.
S. 32SA inserted by No. 30/2003 s. 11 (as amended by No. 106/2003 ss 24(2)(5), 25).
80
s. 32SA
(2) Subject to subsection (3), a guarantor of the obligations of a purchaser under a contract of supply of goods or services where the purchaser is a minor is liable under the contract of guarantee to the same extent as the guarantor would be liable if the purchaser had not been a minor when the contract of supply was made. (3) Subsection (2) does not apply with respect to a contract of guarantee unless, when it was made, it included a prominent statement immediately above or below the place where the guarantor signed the contract to the effect that a person who enters into a guarantee in respect of the obligations of a purchaser who is a minor may not have a right to recover from the purchaser amounts that the guarantor is liable to pay under the contract of supply. (4) In this section domestic partner of a person means (a) a person who is in a registered relationship with the person; or (b) an adult person to whom the person is not married but with whom the person is in a relationship as a couple where one or each of them provides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether or not they are living under the same roof, but does not include a person who provides domestic support and personal care to the person (i) for fee or reward; or
S. 32SA def. of domestic partner substituted by No. 12/2008 s. 73(1)(Sch. 1 item 22.1).
81
s. 32SA
(ii) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation); guarantee includes indemnity; guarantor means a person who enters into a contract of guarantee in respect of the performance of the obligations of a purchaser under a contract of supply of goods or services or of a person who enters into a contract of indemnity in relation to a contract of supply of goods or services but does not include (a) a person who is the supplier, or spouse or domestic partner of the supplier of goods or services to which the contract relates; or (b) if the supplier is a body corporate, a person who is a director or an officer of the body corporate or is a related body corporate within the meaning of the Corporations Act or a director or an officer of a related body corporate or spouse or domestic partner of that director or officer; or (c) a person who enters into a contract of guarantee or a contract of indemnity in respect of the obligations, under a contract of supply of goods or services, of a person who deals in goods or services of the kind to which the contract of supply relates; spouse of a person means a person to whom the person is married.
82
s. 32T
S. 32SA(5) substituted by No. 12/2008 s. 73(1)(Sch. 1 item 22.2).
(5) For the purposes of the definition of domestic partner in subsection (4) (a) registered relationship has the same meaning as in the Relationships Act 2008; and (b) in determining whether persons who are not in a registered relationship are domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case; and (c) a person is not a domestic partner of another person only because they are co-tenants. 32T Limit of liability under security If a mortgage, charge, pledge or other security is provided by a person to secure the obligations of a purchaser under a contract of supply of goods or services, the amount secured in respect of the liability of that person in respect of those obligations does not exceed liability in respect of the sum of (a) the amount for which the purchaser is liable by reason of the breach of the contract of supply of goods or services; and (b) the reasonable costs of, and incidental to, enforcing the mortgage, charge, pledge, lien or other security. 32TA Contract of supply not illegal etc. (1) A contract of supply of goods or services is not illegal, void or unenforceable by reason only that the supplier is guilty of an offence under this Part.
S. 32T inserted by No. 30/2003 s. 11 (as amended by No. 106/2003 ss 24(2)(5), 25).
S. 32TA inserted by No. 30/2003 s. 11 (as amended by No. 106/2003 ss 24(2)(5), 25).
83
s. 32TA
(2) If a supplier commits an offence referred to in subsection (1), the purchaser does not, by reason only of having been a party to the contract, aid, abet, counsel or procure the commission of the offence. __________________
84
Fair Trading Act 1999 No. 16 of 1999 Part 2BUnfair Terms in Consumer Contracts
s. 32U
PART 2BUNFAIR TERMS IN CONSUMER CONTRACTS
Pt 2B (Heading and ss 32U32ZD) inserted by No. 30/2003 s. 12. S. 32U inserted by No. 30/2003 s. 12.
32U Definitions For the purposes of this Part consumer, in relation to a consumer contract, means a person to whom goods or services have been or are to be supplied under the contract; * * * * *
S. 32U def. of consumer contract repealed by No. 106/2003 s. 5(a).
injunction includes interim injunction; prescribed unfair term means a term that is prescribed by the regulations to be an unfair term or a term to the like effect; standard form contract means a consumer contract that has been drawn up for general use in a particular industry, whether or not the contract differs from other contracts used in that industry; unfair term has the meaning given by section 32W.
S. 32U def. of unfair term amended by No. 106/2003 s. 5(b).
85
s. 32V
S. 32V inserted by No. 30/2003 s. 12, amended by No. 42/2004 s. 3, substituted by No. 19/2009 s. 4. S. 32W inserted by No. 30/2003 s. 12, amended by No. 19/2009 s. 5.
32V Application of Part This Part does not apply to contractual terms that are required or expressly permitted by law, but only to the extent required or permitted.
32W What is an unfair term? A term in a consumer contract is to be regarded as unfair if, in all the circumstances, it causes a significant imbalance in the parties' rights and obligations arising under the contract to the detriment of the consumer. 32X Assessment of unfair terms Without limiting section 32W, in determining whether a term of a consumer contract is unfair, a court or the Tribunal may take into account, among other matters, whether the term was individually negotiated, whether the term is a prescribed unfair term and whether the term has the object or effect of (a) permitting the supplier but not the consumer to avoid or limit performance of the contract; (b) permitting the supplier but not the consumer to terminate the contract;
S. 32X inserted by No. 30/2003 s. 12.
S. 32X(c) amended by No. 106/2003 s. 6.
(c) penalising the consumer but not the supplier for a breach or termination of the contract; (d) permitting the supplier but not the consumer to vary the terms of the contract; (e) permitting the supplier but not the consumer to renew or not renew the contract;
86
s. 32Y
(f) permitting the supplier to determine the price without the right of the consumer to terminate the contract; (g) permitting the supplier unilaterally to vary the characteristics of the goods or services to be supplied under the contract; (h) permitting the supplier unilaterally to determine whether the contract had been breached or to interpret its meaning; (i) limiting the supplier's vicarious liability for its agents; (j) permitting the supplier to assign the contract to the consumer's detriment without the consumer's consent; (k) limiting the consumer's right to sue the supplier; (l) limiting the evidence the consumer can lead in proceedings on the contract; (m) imposing the evidential burden on the consumer in proceedings on the contract. 32Y Effect of unfair term (1) An unfair term in a consumer contract is void. (2) A prescribed unfair term (a) in a standard form contract to which the Consumer Credit (Victoria) Act 1995 applies is unenforceable from the time the unfair term is prescribed; (b) in any other standard form contract is void. (3) The contract will continue to bind the parties if it is capable of existing without the unfair term or the prescribed unfair term.
S. 32Y inserted by No. 30/2003 s. 12.
S. 32Y(2) substituted by No. 19/2009 s. 6.
87
s. 32Z
(4) Subsection (1) applies to any consumer contract entered into on or after the commencement of section 12 of the Fair Trading (Amendment) Act 2003. (5) Subsection (2) applies to any standard form contract whether entered into before or after the term is prescribed.
S. 32Z inserted by No. 30/2003 s. 12.
32Z Offences relating to prescribed unfair terms (1) A supplier must not use in relation to a consumer a standard form contract containing a prescribed unfair term. Penalty: 10 penalty units, in the case of a natural person. 20 penalty units, in the case of a body corporate. (2) A person must not attempt to enforce a prescribed unfair term in a standard form contract whether entered into before or after the term is prescribed. Penalty: 10 penalty units, in the case of a natural person. 20 penalty units, in the case of a body corporate.
S. 32ZA inserted by No. 30/2003 s. 12.
32ZA Injunctions to prevent continued use of unfair terms
S. 32ZA(1) amended by No. 19/2009 s. 7(1).
(1) The Director may apply to the Supreme Court, the County Court or the Tribunal for an injunction against any person who, in the Director's opinion, is using, or recommending the use of (a) an unfair term in consumer contracts; or (b) a prescribed unfair term in standard form contracts.
88
s. 32ZB
S. 32ZA(2) amended by No. 19/2009 s. 7(2). S. 32ZA(3) amended by No. 19/2009 s. 7(3).
(2) The Court or the Tribunal, if it is satisfied that, in all the circumstances, it is just and convenient to do so, may by order grant an injunction under this section on such terms as it considers appropriate. (3) If the Tribunal grants an injunction under this section, section 123(2) to (7) of the Victorian Civil and Administrative Tribunal Act 1998 applies as if an injunction under this section were an injunction under that section. (4) An injunction may relate not only to the use of a particular term in a consumer contract or standard form contract, but to any similar term or to a term having like effect, used or recommended for use by any person. 32ZB Director may require the supply of information (1) The Director may exercise the powers conferred under this section for the purposes of (a) facilitating the Director's consideration of a complaint that (i) a term in a consumer contract is an unfair term; or (ii) a term in a standard form contract is a prescribed unfair term; or (b) ascertaining whether a person has complied with a court or Tribunal order as to (i) the continued use, or recommendation for use of a term in a consumer contract; or (ii) the continued use of a prescribed unfair term in a standard form contract.
S. 32ZB inserted by No. 30/2003 s. 12.
S. 32ZB(1)(b) amended by No. 19/2009 s. 8.
89
s. 32ZB
(2) The Director may, by notice in writing, require any person to supply to the Director (a) a copy of the document that is the subject of the complaint or order referred to in subsection (1); (b) information about the use or recommendation for use by that person of that document in dealings with consumers. (3) The notice referred to in subsection (2) may be varied or revoked by the Director by a subsequent notice in writing. (4) A person to whom the notice is addressed must comply with the notice within 14 days of receiving it. (5) A person must not, without reasonable excuse, refuse or fail to comply with a requirement of the Director under this section within the required time. Penalty: 60 penalty units. (6) It is a reasonable excuse for a natural person to refuse or fail to give information or do any other thing that the person is required to do by or under this section, if the giving of the information or the doing of that other thing would tend to incriminate the person. (7) Despite subsection (6), it is not a reasonable excuse for a natural person to refuse or fail to produce a document that the person is required to produce by or under this section, if the production of the document would tend to incriminate the person.
90
s. 32ZC
S. 32ZC (Heading) amended by No. 19/2009 s. 9(1). S. 32ZC inserted by No. 30/2003 s. 12.
32ZC Declaration by Court or Tribunal
(1) The Director may apply to the Supreme Court, the County Court or the Tribunal for an order declaring that (a) a contract is a consumer contract or standard form contract; (b) a term of a consumer contract is an unfair term; (c) a term of a standard form contract is a prescribed unfair term. (2) The Court or the Tribunal may make a declaration in relation to a matter under subsection (1) or any related matter. (3) The Tribunal's power to make a declaration under this section is exercisable only by a presidential member. (4) If the Court or the Tribunal makes an order under subsection (1) declaring that a term of a consumer contract is an unfair term or that a term of a standard form contract is a prescribed unfair term, the Court or the Tribunal may make any one or more of the following orders (a) an order for the payment of a sum of money (i) by way of damages (including exemplary damages and damages in the nature of interest); or (ii) by way of restitution;
S. 32ZC(1) amended by No. 19/2009 s. 9(2).
S. 32ZC(2) amended by No. 19/2009 s. 9(3).
S. 32ZC(4) inserted by No. 19/2009 s. 9(4).
91
s. 32ZC
(b) an order that the contract is varied in the manner specified in the order and that the variation takes effect from the time specified in the order; (c) an order that (i) money paid by a person under the contract be refunded to that person; or (ii) property transferred by a person under the contract is returned to that person; (d) an order in the nature of an order for specific performance of the contract; (e) an order for rescission of the contract; (f) an order for rectification of the contract; (g) an order that all or any of the provisions in the contract are not to be enforced; (h) an order declaring that a debt is, or is not, owing; (i) an order that a person do something, including an order that (i) the person repair or provide parts for goods provided under the contract to another person; or (ii) the person supply services required to be supplied under the contract to another person; (j) an order that a person refrain from doing something.
S. 32ZC(5) inserted by No. 19/2009 s. 9(4).
(5) In awarding damages in the nature of interest, the Tribunal may base the amount awarded on the interest rate fixed from time to time under section 2 of the Penalty Interest Rates Act 1983 or on any lesser rate it thinks appropriate.
92
s. 32ZD
S. 32ZD inserted by No. 30/2003 s. 12.
32ZD Advisory opinion by the Tribunal (1) The Director may, in writing, refer to the Tribunal for an advisory opinion any matter, including but not limited to (a) whether a contract is a consumer contract or standard form contract; (b) whether a term of a consumer contract is an unfair term; (c) whether a term of a standard form contract is a prescribed unfair term. (2) The Tribunal may provide an advisory opinion in relation to a matter under subsection (1) or any related matter. 32ZDA Presumption that this Part applies to a contract (1) If it is alleged in any proceeding under this Part or in any other proceeding in respect of a matter arising under this Part that a contract is a consumer contract or a standard form contract to which this Part applies, it is to be presumed, unless the contrary is established, that this Part applies to the contract. (2) A presumption under subsection (1) does not apply in respect of any criminal proceedings against a natural person. __________________
S. 32ZDA inserted by No. 19/2009 s. 10.
93
s. 32ZE
Fair Trading Act 1999 No. 16 of 1999 Part 2CFrustrated Contracts
Pt 2C (Headings and ss 32ZE 32ZO) inserted by No. 2/2008 s. 4. S 32ZE inserted by No. 2/2008 s. 4.
PART 2CFRUSTRATED CONTRACTS
Division 1Introductory
32ZE Definitions In this Part court, in relation to any matter, means the court or arbitrator by or before whom the matter falls to be determined; discharged contract means a contract to which this Part applies; time of discharge, in relation to any contract, means the time at which (a) performance of the contract becomes impossible; or (b) the contract is otherwise frustrated; or (c) the contract is avoided by the operation of section 12 of the Goods Act 1958.
S 32ZF inserted by No. 2/2008 s. 4.
32ZF Contracts to which this Part applies (1) This Part applies to a contract if the parties to the contract are discharged from the further performance of the contract because (a) performance of the contract becomes impossible; or (b) the contract is otherwise frustrated; or (c) the contract is avoided by the operation of section 12 of the Goods Act 1958.
94
s. 32ZG
(2) This Part applies to contracts made before or after the commencement of section 4 of the Fair Trading and Consumer Acts Further Amendment Act 2008 if the time of discharge of the contract is after 29 September 1959. (3) This Part does not apply to (a) any charter-party, except a time charter-party or a charter-party by way of demise; or (b) any contract (other than a charter-party) for the carriage of goods by sea; or (c) any contract of insurance except as provided for in section 32ZK. Division 2Consequences of frustration of contract 32ZG Adjustment of amounts paid or payable to parties to discharged contracts (1) All amounts paid to any party under a discharged contract before the time of discharge are recoverable. (2) All amounts payable to any party under a discharged contract before the time of discharge cease to be payable. 32ZH Court may allow amounts paid or payable to be recovered or paid Despite section 32ZG, the court may, if it considers it just to do so having regard to all the circumstances of the case, allow a party to a discharged contract (a) to whom amounts were paid or are payable under that contract before the time of discharge; and
S 32ZH inserted by No. 2/2008 s. 4. S 32ZG inserted by No. 2/2008 s. 4.
95
s. 32ZI
(b) who has incurred expenses before the time of discharge in or for the purpose of the performance of that contract to retain or recover (as the case may be) the whole or any part of the amounts paid or payable to that party under the contract in an amount not exceeding the expenses incurred.
S 32ZI inserted by No. 2/2008 s. 4.
32ZI Parties to pay an amount for valuable benefits obtained (1) This section applies if a party to a discharged contract obtained a valuable benefit (other than a payment of money to which section 32ZG or 32ZH applies) before the time of discharge because of anything done by another party in or for the purpose of the performance of the contract. (2) Despite section 32ZG, the benefited party is liable to pay to that other party any amount (not exceeding the value of the benefit obtained) that the court considers just having regard to all the circumstances of the case. (3) For the purpose of subsection (2), the Court may have regard in particular to (a) the amount of any expenses the benefited party incurred before the time of discharge in or for the purpose of the performance of the contract, including any amount paid or payable by the benefited party to any other party under the contract and retained or recoverable by that party under section 32ZG or 32ZH; or (b) the effect, in relation to the benefit obtained, of the circumstances giving rise to the frustration or avoidance of the contract.
96
s. 32ZJ
(4) For the purpose of this section, if a party to the contract has assumed obligations under the contract in consideration of the conferral of a benefit by another party to the contract on any other person (whether or not that person is a party to the contract), the court may, if in all the circumstances of the case it considers it just to do so, treat any benefit conferred on that other person as a benefit obtained by the party who has assumed those obligations. 32ZJ Calculation of expenses incurred In estimating, for the purposes of this Division, the amount of any expenses incurred by any party to a discharged contract, the court may include an amount that appears reasonable for (a) overhead expenses; and (b) work or services performed personally by the party. 32ZK Circumstances in which amounts payable under contract of insurance excluded In considering whether any amount is to be retained or recovered by any party to a discharged contract, the court must not take into account any amounts payable to a party under a contract of insurance because of the circumstances giving rise to the frustration or avoidance of the contract unless an obligation to insure is imposed (a) by an express provision in the frustrated or avoided contract; or (b) by or under any enactment.
S 32ZK inserted by No. 2/2008 s. 4. S 32ZJ inserted by No. 2/2008 s. 4.
97
s. 32ZL
Division 3General
S 32ZL inserted by No. 2/2008 s. 4.
32ZL Circumstances in which contract provisions continue to have effect despite frustration If any contract to which this Part applies contains a provision that on the true construction of the contract (a) is intended to continue to have effect in circumstances that operate or would, but for that provision, operate to frustrate or avoid the contract; or (b) is intended to have effect whether or not circumstances that operate or would, but for that provision, operate to frustrate or avoid the contract arise the court must give effect to that provision and must only give effect to Division 2 to the extent that the court is satisfied that it is consistent with the provision of the contract.
S 32ZM inserted by No. 2/2008 s. 4.
32ZM Performed part of contract not frustrated If it appears to the court that part of a contract to which this Part applies (a) is wholly performed before the time of discharge; or (b) is wholly performed before the time of discharge except for payment in respect of that part of the contract of amounts that are or can be ascertained under the contract the court must treat that part of the contract as if it were a separate contract that had not been frustrated or avoided and Division 2 will only apply to the remainder of that contract.
98
s. 32ZN
S 32ZN inserted by No. 2/2008 s. 4.
32ZN Nature of action All actions and proceedings to recover amounts under this Part are taken to be founded on simple contract. 32ZO Limitation period Subject to Part II of the Limitation of Actions Act 1958, a cause of action under this Part is taken to have first accrued at the time of discharge. __________________
S 32ZO inserted by No. 2/2008 s. 4.
99
s. 33
Fair Trading Act 1999 No. 16 of 1999 Part 3Safety and Information Requirements
PART 3SAFETY AND INFORMATION REQUIREMENTS
Division 1Safety standards 33 Offence to supply goods or services which do not comply with safety standards (1) A person must not, in trade or commerce, supply goods that are intended to be used, or are of a kind ordinarily used for personal, household or domestic purposes if (a) the goods are of a kind in respect of which there is a prescribed safety standard; and (b) the goods do not comply with that standard. Penalty: 240 penalty units, in the case of a natural person. 600 penalty units, in the case of a body corporate. (2) A person must not, in trade or commerce, supply services that are intended to be used or are of a kind ordinarily used for personal, household or domestic purposes if (a) the services are of a kind in respect of which there is a prescribed safety standard; and (b) the services do not comply with that standard. Penalty: 240 penalty units, in the case of a natural person. 600 penalty units, in the case of a body corporate.
100
s. 34
34 Prescribed safety standards (1) The regulations may, in respect of goods of a particular kind, prescribe a safety standard consisting of such requirements as to (a) performance, composition, contents, methods of manufacture or processing, design, construction, finish or packaging of the goods; and (b) testing of the goods during, or after the completion of, manufacture or processing; and (c) the form and content of markings, warnings or instructions to accompany the goods; and (d) conditions or limitations on the supply of goods as are reasonably necessary to prevent or reduce the risk of injury to any person. (2) The regulations may, in respect of services of a particular kind, prescribe a safety standard consisting of such requirements as to (a) the manner in which the services are to be supplied; and (b) the form and manner of disclosure of warnings, instructions or other information to be communicated to a person to whom services are to be supplied as are reasonably necessary to prevent or reduce the risk of injury to any person. 35 Interim ban order (1) The Director may recommend to the Minister that an interim ban order be made under this section in respect of goods or services of a particular kind.
101
s. 36
(2) If a recommendation is made under subsection (1) in respect of goods or services of a particular kind, and it appears to the Minister that the goods or services are dangerous, the Minister may make an interim ban order (a) declaring the goods or services to be dangerous goods or services; and (b) conditionally or unconditionally prohibiting or restricting the supply of those goods or services. (3) An interim ban order must be published in the Government Gazette.
S. 35(4) inserted by No. 30/2003 s. 13.
(4) An interim ban order may apply, adopt or incorporate, wholly or partially or as amended by the order, any matter contained in any document as existing (a) from time to time; or (b) at a particular time. 36 Operation of interim ban order (1) An interim ban order takes effect on the date of its publication in the Government Gazette. (2) An interim ban order remains in force until the end of 3 months after the date of its publication in the Government Gazette unless it is revoked before the end of that period. (3) The Minister may, by order published in the Government Gazette, amend or revoke an interim ban order. (4) An interim ban order may be renewed for a further period of 3 months from its expiry.
102
s. 37
37 Notice of order (1) The Minister must cause a copy of an interim ban order (a) to be given to each person who, to the knowledge of the Minister, supplies goods or services of the kind to which the order relates; or (b) to be published in a newspaper circulating generally throughout the State. (2) A copy of an order must be given or published under subsection (1) within 2 days after the publication of the order in the Government Gazette, or if that is not practicable, as soon as possible after the end of that period. (3) A failure to comply with subsection (1) or (2) in relation to an interim ban order does not invalidate the order. 38 Offence to contravene interim ban order A person must not supply goods or services in contravention of an interim ban order. Penalty: 240 penalty units, in the case of a natural person. 600 penalty units, in the case of a body corporate. 39 Permanent ban order or fixed term ban order made after interim ban order If an interim ban order has been made in respect of goods or services and, on the expiry of that interim ban order, there is not a prescribed safety standard in respect of those goods or services, the Minister, on the recommendation of the Director, may make a permanent ban order or a fixed term ban order conditionally or unconditionally
S. 39 (Heading) inserted by No. 30/2003 s. 14(1). S. 39 amended by No. 30/2003 s. 14(2).
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s. 40
prohibiting or restricting the supply of the goods or services.

S. 40 (Heading) inserted by No. 30/2003 s. 15(1). S. 40(1) amended by No. 30/2003 s. 15(2).
40 General power to make permanent ban order or fixed term ban order (1) The Minister may make a permanent ban order or a fixed term ban order conditionally or unconditionally prohibiting or restricting the supply of goods or services of a particular kind. (2) The Minister must not make a permanent ban order or a fixed term ban order under subsection (1) unless (a) the Director recommends to the Minister the making of that order; or (b) in the case of a permanent ban order, the supply of goods or services of that kind has been permanently prohibited or restricted under a law of the Commonwealth or another State or Territory of the Commonwealth by reason of those goods or services being dangerous; or (c) in the case of a fixed term ban order, the supply of goods or services of that kind has been prohibited or restricted for a specified period under a law of the Commonwealth or another State or Territory of the Commonwealth by reason of those goods or services being dangerous. (3) The Director must not make a recommendation under subsection (2)(a) unless the Director (a) has fully investigated the matter; and (b) is satisfied that (i) those goods or services or goods or services of that kind are dangerous; and
104
s. 41
S. 40(3)(b)(ii) amended by No. 30/2003 s. 15(4). S. 40(4) substituted by No. 30/2003 s. 15(5).
(ii) that supply of those goods or services or goods or services of that kind should be prohibited or restricted. (4) If a permanent ban order or fixed term ban order is made under this section, any interim ban order applying to the goods or services to which the permanent ban order or fixed term ban order relates is revoked. (5) A permanent ban order or a fixed term ban order may apply, adopt or incorporate, wholly or partially or as amended by the order, any matter contained in any document as existing (a) from time to time; or (b) at a particular time. 41 When does a permanent ban order or a fixed term ban order take effect? (1) A permanent ban order or fixed term ban order must be published in the Government Gazette. (2) A permanent ban order or fixed term ban order takes effect on the date on which it is published in the Government Gazette. (3) The Minister must specify in a fixed term ban order the period during which the order has effect. (4) Subject to section 43 and subsection (5), at the end of the term specified in a fixed term ban order, the order ceases to have effect. (5) Subject to section 43, at or before the end of the term specified in a fixed term ban order the Minister, by order published in the Government Gazette, may (a) make a new fixed term ban order; or (b) make a permanent ban order.
S. 40(5) inserted by No. 30/2003 s. 15(5).
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s. 42
42 Notice of order
S. 42(1) amended by No. 30/2003 s. 17.
(1) The Minister must cause a copy of a permanent ban order or a fixed term ban order (a) to be given to each person who, to the knowledge of the Minister, supplies goods or services of the kind to which the order relates; or (b) to be published in a newspaper circulating generally throughout the State. (2) A copy of an order must be given or published under subsection (1) within 2 days after the publication of the order in the Government Gazette, or if that is not practicable, as soon as possible after the end of that period.
S. 42(3) amended by No. 30/2003 s. 17. S. 43 substituted by No. 30/2003 s. 18.
(3) A failure to comply with subsection (1) or (2) in relation to a permanent ban order or a fixed term ban order does not invalidate the order. 43 Revocation or amendment of permanent ban order or fixed term ban order The Minister may, by order published in the Government Gazette, revoke or amend a permanent ban order or a fixed term ban order. 44 Offence to contravene permanent ban order or fixed term ban order A person must not supply goods or services in contravention of a permanent ban order or a fixed term ban order. Penalty: 240 penalty units, in the case of a natural person. 600 penalty units, in the case of a body corporate.
S. 44 (Heading) inserted by No. 30/2003 s. 19(1). S. 44 amended by No. 30/2003 s. 19(2).
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s. 45
45 Loss, injury or damage arising from a contravention of this Division (1) If (a) goods or services have been supplied in contravention of section 33; and (b) a person suffers loss, injury or damage by reason of a defect in, or a dangerous characteristic of, the goods or services or because of not having particular information in relation to the goods or services; and (c) the person would not have suffered the loss, injury or damage if the goods or services had complied with that standard the person is deemed for the purposes of this Act to have suffered the loss, injury or damage as a result of the supplying of the goods or services. (2) If (a) goods or services have been supplied in contravention of an interim ban order, a fixed term ban order or a permanent ban order; and (b) a person suffers loss, injury or damage by reason of a defect in, or a dangerous characteristic of, the goods or services or because of not having particular information as to a characteristic of the goods or services the person is deemed for the purposes of this Act to have suffered the loss, injury or damage as a result of the supplying of the goods or services.
S. 45(2)(a) amended by No. 30/2003 s. 20.
107
s. 46
Division 2Information standards 46 Offence to supply goods or services which do not comply with information standards (1) A person must not, in trade or commerce, supply goods that are intended to be used, or are of a kind ordinarily used for personal, household or domestic purposes, if the goods are of a kind in respect of which there is a prescribed information standard and the standard has not been complied with in relation to those goods. Penalty: 240 penalty units, in the case of a natural person. 600 penalty units, in the case of a body corporate. (2) A person must not, in trade or commerce, supply services, if the services are of a kind in respect of which there is a prescribed information standard and the standard has not been complied with in relation to those services. Penalty: 240 penalty units, in the case of a natural person. 600 penalty units, in the case of a body corporate. 47 Prescribed information standards (1) The regulations may, in respect of goods of a particular kind, prescribe an information standard consisting of requirements as to (a) the disclosure of information relating to the identity, place of manufacture, performance, composition, contents, methods of manufacture or processing, design, construction, finish or packaging of the goods and, if the goods are imported, the person who imported them; and
108
s. 48
(b) instructions as to the care, storage and use of those goods; and (c) the form and manner in which that information and those instructions are to be disclosed on or with the goods that are reasonably necessary to inform persons to whom the goods are to be supplied about the quantity, quality, nature or value of the goods and about the care, storage, use and origin of those goods. (2) The regulations may, in respect of services of a particular kind, prescribe an information standard consisting of the requirements for, and the form and nature of, the information which it is reasonably necessary to give to persons to whom the services are to be supplied about the nature, the characteristics and the suitability for the purpose of the services. 48 Loss, injury or damage arising from a contravention of this Division If (a) goods or services have been supplied in contravention of section 46 in that a prescribed information standard has not been complied with in relation to the goods or services; and (b) a person suffers loss, injury or damage by reason of not having particular information in relation to the goods or services; and
109
s. 49
(c) the person would not have suffered the loss, injury or damage if the supplier had complied with that standard in relation to the goods or services the person is deemed, for the purposes of this Act, to have suffered the loss, injury or damage as a result of the supplying of the goods or services. Division 3Recall of goods 49 Notification of voluntary recall (1) If a person voluntarily takes action to recall goods ordinarily used for personal, household or domestic purposes because the goods will or may cause death or injury to any person, the person must, within 2 days after taking that action, give a notice in writing to the Minister in accordance with section 163 (a) stating that the goods are subject to recall; and (b) setting out the nature of the defect in or the dangerous characteristic of the goods. Penalty: 240 penalty units, in the case of a natural person. 600 penalty units, in the case of a body corporate. (2) If a person (who would otherwise be required to give notice under this section) has given notice of the matter under section 65R of the Trade Practices Act 1974 of the Commonwealth, that person is not required to give notice under this section.
110
s. 50
50 Compulsory recall (1) The Minister, on the recommendation of the Director, may issue a notice requiring the recall of goods that are intended to be used or are of a kind ordinarily used for personal, household or domestic purposes to any person or class of persons who supply goods of that kind, if (a) the goods (i) appear to the Minister to be goods of a kind that will or may cause death or injury to any person; or (ii) do not comply with a prescribed safety standard or prescribed information standard for goods of that kind; or (iii) are of a kind in relation to which there is in force an interim ban order, a fixed term ban order or a permanent ban order; and (b) it appears to the Minister that the person or class of persons to whom the notice is issued has not voluntarily taken satisfactory action under section 49 to recall the goods. (2) A notice under subsection (1) may require the person or class of persons to whom the notice is issued to do one or more of the following (a) take action within the period specified in the notice to recall the goods identified in the notice; (b) disclose to the public or a class of the persons specified in the notice all or any of the following (i) the nature of the defect in the goods or the dangerous characteristic of the goods;
S. 50(1)(a)(iii) amended by No. 30/2003 s. 21(1).
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s. 50
(ii) the circumstances, being circumstances specified in the notice, in which the use of the goods is dangerous; (iii) procedures for disposing of the goods specified in the notice in the manner and within the period specified in the notice; (c) inform the public, or a class of persons specified in the notice, that the person to whom the notice is issued undertakes to do whichever of the following that person thinks appropriate (i) in the case of goods which the notice has not identified as having a dangerous characteristic, repair the goods; (ii) replace the goods; (iii) refund to a person to whom the goods were supplied (whether by the supplier or by another person) the price of the goods in the manner and within the period specified in the notice. (3) A notice under subsection (1) may give directions as to the manner in which the person is to carry out a recall of goods required under the notice.
(3A) A notice under subsection (1) may apply, adopt or incorporate, wholly or partially or as amended by the notice, any matter contained in any document as existing (a) from time to time; or (b) at a particular time.
112
s. 51
(4) A notice issued under this section must be in writing and published in the Government Gazette. 51 Repair and replacement of goods (1) If goods are to be repaired under a compulsory recall notice, the goods must be repaired so that (a) any defect in the goods which is identified in the notice is remedied; and (b) if there is a prescribed safety standard in respect of the goods, the goods comply with that standard. (2) If goods are to be replaced under a compulsory recall notice, the goods must be replaced with like goods which (a) if a defect in, or a dangerous characteristic of, the first mentioned goods was identified in the notice, do not contain that defect or have that characteristic; and (b) if there is a prescribed safety standard in respect of goods of that kind, comply with that standard. (3) The cost of the repair or replacement under a compulsory recall notice, including any necessary transportation costs, must be borne by the person to whom the notice was issued. 52 Circumstances in which a refund may be reduced If, under a compulsory recall notice, a person chooses to refund the price of goods and a period of 12 months has elapsed since the goods were supplied, the amount of the refund may be reduced by an amount attributable to the use which any person has had of the goods, being an amount calculated in a manner specified in the notice.
113
s. 53
53 Compliance with compulsory recall notice A person to whom a compulsory recall notice is issued (a) must comply with the requirements and directions in the notice; and (b) must not, in trade or commerce (i) if the notice identifies a defect in, or a dangerous characteristic of, the goods, supply goods of the kind to which the notice relates which contain that defect or have that characteristic; or (ii) in any other case, supply goods of the kind to which the notice relates. Penalty: 240 penalty units, in the case of a natural person. 600 penalty units, in the case of a body corporate. 54 Loss, injury or damage arising from contravention of this Division If (a) a person contravenes section 53 by (i) supplying goods of a kind in relation to which a compulsory recall notice is in force; or (ii) failing to comply with the requirements of such a notice; and
114
s. 55
(b) a person suffers loss, injury or damage by reason of a defect in, or a dangerous characteristic of, the goods or by reason of not having particular information as to a characteristic of the goods the person who suffers the loss, injury or damage is deemed, for the purposes of this Act, to have suffered that loss, injury or damage as a result of the supplying of the goods, or by the failure to comply with the notice, as the case may be. 55 Requirement to notify persons outside Victoria (1) If goods are recalled under section 49 or 50, a person who has supplied any of the goods to another person outside Victoria must, as soon as practicable after the supply of those goods, give a notice in writing in accordance with section 163 to that other person (a) stating that the goods are subject to recall; and (b) if the goods contain a defect which will or may cause injury or have a dangerous characteristic, setting out the nature of that defect or characteristic; and (c) if the goods do not comply with a prescribed safety or information standard in respect of the goods, setting out the nature of the failure to comply. Penalty: 60 penalty units, in the case of a natural person. 120 penalty units, in the case of a body corporate.
115
s. 56
(2) If a person is required to give a notice under subsection (1) to another person, the person who is required to give the notice must give the Minister a copy of the notice, within 10 days after giving that notice to the other person. Penalty: 60 penalty units, in the case of a natural person. 120 penalty units, in the case of a body corporate. (3) If a person (who would otherwise be required to give a copy of a notice to the Minister under this section) has given notice of the matter under section 65R of the Trade Practices Act 1974 of the Commonwealth, that person is not required to give the copy of the notice to the Minister. 56 Certain actions not to affect insurance contracts The liability (a) of an insurer under a contract of insurance relating to the recall of goods supplied or proposed to be supplied by a person; or (b) of a person with respect to possible defects or dangerous characteristics in goods supplied or proposed to be supplied by that person is not affected because that person gives any information about any such goods
S. 56(c) amended by No. 108/2004 s. 117(1) (Sch. 3 item 74.2).
(c) to the Minister, or an employee employed under Part 3 of the Public Administration Act 2004; or (d) in accordance with a requirement to inform or notify persons under section 49, 50 or 55.
116
s. 57
Division 4Applications for review 57 Review of ban order or compulsory recall notice
(1) A person whose interests are affected by a decision to make an interim ban order, a fixed term ban order or a permanent ban order or to issue a compulsory recall notice may apply to the Tribunal for review of that decision. (2) An application for review must be made within 28 days after the later of (a) the day on which the order or notice is published in the Government Gazette; or (b) if, under the Victorian Civil and Administrative Tribunal Act 1998, the person requests a statement of reasons for the decision, the day on which the statement of reasons is given to the person or the person is informed under section 46(5) of that Act that a statement of reasons will not be given. Division 5Warning notices 58 Warning notice to public (1) The Minister or the Director may publish or cause to be published a notice containing statements or giving warnings or information about both or either of the following (a) that the goods or services or the kind of goods or services specified in the notice are under investigation to determine whether or not the goods or services will or may cause injury to any person;
117
s. 58
(b) the possible risks involved in the use of the goods or services or the kind of goods or services specified in the notice. (2) The Minister must, as soon as practicable after the completion of an investigation referred to in subsection (1)(a), announce the results of the investigation by notice and may announce in the notice whether, and if so what action is proposed to be taken in relation to the goods under this Act. (3) A notice under this section must be published in the Government Gazette and in a newspaper circulating generally throughout the State. _______________
118
Fair Trading Act 1999 No. 16 of 1999 Part 4Off-Business-Premises Sales and Other Sales
s. 59
PART 4OFF-BUSINESS-PREMISES SALES AND OTHER SALES
Pt 4 (Heading) substituted by No. 30/2003 s. 23.
Division 1Introductory 59 Application This Part does not apply to (a) a major domestic building contract within the meaning of the Domestic Building Contracts Act 1995; (b) an agreement for the sale of a motor car within the meaning of the Motor Car Traders Act 1986; (c) an agreement for the supply of goods to a purchaser who is in the trade or business of buying, selling or hiring goods of the same nature or description as the goods to which the agreement relates; (d) an agreement for the supply of goods or services to a purchaser who is a body corporate; (e) a contract for the sale of land to which section 32 of the Sale of Land Act 1962 applies; (f) an agreement which relates solely to the performance of work under a contract of employment or by virtue of which the contractor would be deemed to be a "worker" within the meaning of the Accident Compensation Act 1985;
S. 59(c) amended by No. 30/2003 s. 24(a).
S. 59(d) amended by No. 30/2003 s. 24(b).
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s. 60
(g) an agreement for the supply of goods or services if the total consideration payable by the purchaser under the agreement is ascertainable at the time of making the agreement and is $50 or less. Division 2Contact sales agreements 60 What is a contact sales agreement? (1) An agreement is a contact sales agreement if (a) it is an agreement for the supply in trade or commerce of goods or services of a kind ordinarily used for personal, household or domestic use; and (b) the agreement is made or entered into in the presence of the purchaser (or a person acting on behalf of the purchaser) and the supplier (or a person acting on behalf of the supplier) at (i) a private residence other than a private residence which is the business premises of the supplier or the person acting on behalf of the supplier; or
S. 60(1)(b)(ii) amended by No. 30/2003 s. 25(1)(a).
(ii) the workplace of the purchaser; or
S. 60(1)(b)(iii) inserted by No. 30/2003 s. 25(1)(b).
(iii) any other premises (including the business premises of the supplier), if the purchaser is relying on the supplier (or a person acting on behalf of the supplier) for transport from the premises; and
120
s. 60
(c) the total consideration payable by the purchaser under the agreement (i) is not ascertainable at the time of making the agreement; or (ii) is ascertainable at the time of making the agreement and exceeds $50. (2) If (a) 2 or more agreements relate substantially to the same transaction; and (b) the transaction could have been effected by a single agreement which would have constituted a contact sales agreement then (c) each of the agreements that would not, if it stood alone, constitute a contact sales agreement becomes a contact sales agreement; and (d) for the purpose of ascertaining the coolingoff period in relation to each of the agreements, each agreement is deemed to have been made when the last of the agreements was made. (3) Despite subsection (1), the following are not contact sales agreements (a) an agreement solely for the provision of credit; (b) a contract of guarantee; (c) a mortgage. (4) Sections 62A to 62E do not apply to a contact sales agreement referred to in subsection (1)(b)(iii).
S. 60(4) inserted by No. 30/2003 s. 25(2).
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s. 61
61 Requirements for contact sales agreements (1) The following requirements must be complied with in relation to a contact sales agreement (a) the agreement must set out in full all the terms of the agreement, including (i) the total consideration to be paid or provided by the purchaser under the agreement or, if the total consideration is not ascertainable at the time the agreement is entered into, the manner in which it is to be calculated; (ii) any postal or delivery charges to be paid by the purchaser; (b) the agreement must include on the front page of the agreement a notice which (i) must in accordance with Part 1 of Schedule 2 advise the purchaser of the right to cancel the agreement; and (ii) must be signed by the purchaser;
S. 61(1)(c) substituted by No. 30/2003 s. 26(1).
(c) the agreement must be accompanied by a notice completed in accordance with Part 2 of Schedule 2 which may be used by the purchaser to cancel the agreement; (d) the agreement must set out in full the name and business address (not being a post box) of the supplier; (e) the agreement must be printed clearly or typewritten (apart from any amendments to the printed or typewritten form which may be handwritten) and otherwise must comply with section 163; (f) the agreement must be signed by the purchaser;
S. 61(1)(d) amended by No. 30/2003 s. 26(2). S. 61(1)(e) amended by No. 30/2003 s. 26(3).
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s. 62
(g) any amendments to the agreement must be signed by both parties to the agreement; (h) if the agreement is signed by a person on behalf of the supplier, the agreement must (i) state that the person is acting on behalf of the supplier; and (ii) set out in full the name of that person and the business address (not being a post box) of that person, or, if that person does not have a business address, the residential address of that person; (i) the purchaser must be given a copy of the agreement immediately after the purchaser signs the agreement. (2) The information required under subsections (1)(a)(i) and (ii) and (1)(b) must be conspicuous and prominent in the agreement or notice (as the case may be). (3) The Director may approve an agreement or class of agreements which do not comply with the requirements of subsection (1) or (2) if the Director is satisfied that the agreements provide a level of disclosure substantially equivalent to the requirements of that subsection. (4) An agreement approved or in a class approved under subsection (3) is not required to comply with subsection (1) or (2). 62 Supplier must comply with requirements (1) If section 61 is not complied with in relation to a contact sales agreement, the supplier under the agreement and any person entering into the agreement on behalf of the supplier are each guilty of an offence and liable to a penalty of not more than
S. 61(2) substituted by No. 30/2003 s. 26(4). S. 61(1)(h)(ii) amended by No. 30/2003 s. 26(2).
123
s. 62A
(a) 120 penalty units, in the case of a natural person; or (b) 240 penalty units, in the case of a body corporate. (2) The supplier under a contact sales agreement cannot enforce the agreement against the purchaser if the supplier or a person entering into the agreement on behalf of the supplier fails to comply with section 61.
62A Duty to obtain prior consent to visit (1) Except with prior consent to visit, a supplier or person acting on behalf of a supplier must not visit the premises of a person for the purpose of negotiations which may lead to a contact sales agreement or for an incidental or related purpose (a) at any time on a Sunday or a public holiday; or (b) on a Saturday (i) between midnight and 9.00 am; or (ii) between 5.00 pm and midnight; or (c) on any other day (i) between midnight and 9.00 am; or (ii) between 8.00 pm and midnight. Penalty: 120 penalty units, in the case of a natural person. 240 penalty units, in the case of a body corporate.
124
s. 62A
(2) For the purposes of this section prior consent to visit means (a) consent given by a person to a supplier or to a person acting on behalf of a supplier other than in the presence of the supplier or person acting on behalf of the supplier, to visit the premises of that person for the purpose of negotiating a contact sales agreement or for an incidental or related purpose;
Example S, a mobile phone seller, knocks on P's door on Friday afternoon and asks P if she is interested in buying one of S's mobile phones. P tells S she is busy. S asks P if she can come back on Sunday and P reluctantly agrees. This is not prior consent to visit because it was given faceto-face. If S had contacted P by telephone, then it would have been prior consent.
(b) consent given by a person to a supplier or to a person acting on behalf of a supplier to visit the premises of that person for the purpose of conducting a party plan or for an incidental or related purpose; party plan means negotiations by a supplier or person acting on behalf of a supplier with at least three persons, at the same time and in the same premises, for the supply of goods or services.
125
s. 62B
62B Duty not to remain on premises for long periods (1) Subject to subsection (2), a supplier or person acting on behalf of a supplier who is carrying on negotiations at a premises which may lead to a contact sales agreement or for an incidental or related purpose must not remain on the premises for more than one hour. Penalty: 120 penalty units, in the case of a natural person. 240 penalty units, in the case of a body corporate. (2) Subsection (1) does not apply if the supplier or person acting on behalf of the supplier remains on the premises with the consent of the person with whom the negotiations are being conducted and the consent complies with subsection (4). (3) Subsection (1) does not apply in the case of a party plan (within the meaning of section 62A).
Example S, a kitchenware party plan seller, telephones P on Friday afternoon and asks P if she is interested in hosting a kitchenware party at her house on Sunday. S tells P that the party will last around 4 hours and she should invite her friends. If P agrees and there are at least 3 prospective purchasers in attendance at the party, section 62B(1) will not apply to S.
(4) A consent under subsection (2) (a) must be in writing; and (b) must only apply to a period of one half hour; and (c) must not be given during a period referred to in section 62A(1). (5) More than one consent may be provided under subsection (4).
126
s. 62C
(6) Nothing in this section limits the operation of section 62C. 62C Duty to leave premises A supplier or a person acting on behalf of a supplier who is carrying on negotiations at a premises which may lead to a contact sales agreement or for an incidental or related purpose must leave the premises immediately on the request of (a) the occupier of the premises, or any person acting with the actual or implied authority of the occupier; or (b) the person with whom the negotiations are being conducted. Penalty: 120 penalty units, in the case of a natural person. 240 penalty units, in the case of a body corporate. 62D Duty to produce identification (1) A supplier or a person acting on behalf of a supplier who is carrying on negotiations which may lead to a contact sales agreement or for an incidental or related purpose, must produce evidence of his or her identity (a) on his or her first entering into negotiations; and (b) at any time after that, if so requested by the person with whom the negotiations are being conducted. Penalty: 120 penalty units, in the case of a natural person. 240 penalty units, in the case of a body corporate.
S. 62D inserted by No. 30/2003 s. 27. S. 62C inserted by No. 30/2003 s. 27.
127
s. 62E
(2) Evidence of identification under subsection (1) must show the full name of the person, the name of the business (if any) which the person is representing and the business or residential address of the person.
S. 62E inserted by No. 30/2003 s. 27.
62E Duty to inform Before commencing negotiations which may lead to a contact sales agreement, a supplier or person acting on behalf of a supplier must orally inform the person with whom the negotiations are being conducted that the supplier or person acting on behalf of a supplier (a) is not permitted to remain on the premises for more than one hour unless the person with whom the negotiations are being conducted consents in writing to an extension in accordance with section 62B(2) or the negotiations are in the course of a party plan (within the meaning of section 62A); and (b) must leave the premises if requested to do so by the occupier of the premises, or any person acting with the actual or implied authority of the occupier, or the person with whom the negotiations are being conducted. Penalty: 120 penalty units, in the case of a natural person. 240 penalty units, in the case of a body corporate. 63 When can the purchaser cancel the agreement?
(1) The purchaser under a contact sales agreement may cancel the agreement by giving notice of cancellation to the supplier within 10 days from and including the day on which the agreement was made or within such longer period as the agreement may provide. 128
s. 63
(1A) Without limiting subsection (1), if a supplier or a person acting on behalf of a supplier represents to the purchaser that the purchaser may cancel the agreement in a manner other than in accordance with subsection (1), (3) or (5), the purchaser may cancel the agreement in that manner. (2) If a contact sales agreement (other than an agreement approved or in a class approved under section 61(3)) does not comply with section 61(1)(b), 61(1)(c) or 61(1)(i), the purchaser under the agreement may cancel the agreement by giving notice of cancellation to the supplier within 6 months from the day on which the agreement was made. (2A) If a supplier or a person acting on behalf of a supplier does not comply with sections 62A to 62E in relation to negotiations leading to a contact sales agreement, the purchaser under the agreement may cancel the agreement by giving notice of cancellation to the supplier within the period of 3 months from and including the day on which the agreement was made. (3) Subject to subsection (1A), a notice of cancellation must be in writing and may be given in the form of the notice in Part 2 of Schedule 2. (4) Subsection (3) does not apply to an agreement approved or in a class approved under section 61(3) if the Director approves a different method of notice of cancellation in the case of that agreement or class of agreements. (5) Subject to subsection (1A), a notice of cancellation under this section may be given (a) by leaving it at or posting it to the business address of the supplier or other address of the supplier shown on the form of notice of cancellation accompanying the agreement; or
S. 63(2) amended by Nos 30/2003 s. 28(2), 106/2003 s. 18, 103/2004 s. 6.
S. 63(3) amended by No. 30/2003 s. 28(4).
S. 63(5) amended by No. 30/2003 s. 28(4).
129
s. 64
(b) by faxing it to the facsimile number of the supplier shown on that form; or (c) if the form of notice of cancellation does not accompany the agreement, by leaving it at or posting it to the last known place of business of the supplier. 64 What is the effect of cancellation? (1) If a contact sales agreement is cancelled during the cooling-off period, the agreement is deemed to have been rescinded by mutual consent. (2) If a contact sales agreement is cancelled during the cooling-off period, any related contract or instrument is void. (3) Subsection (2) does not affect the operation of the Consumer Credit (Victoria) Code in its application to a tied loan contract as defined in that Code. 65 What must the supplier do on cancellation? (1) If a contact sales agreement is cancelled within the cooling-off period, the supplier must immediately repay to the purchaser any money paid by the purchaser under the agreement or a related contract or instrument. (2) If a contact sales agreement is cancelled within the cooling-off period, the supplier must return to the purchaser any goods taken as a trade-in under or in respect of the agreement. (3) The goods must be returned within 10 days after the supplier receives the notice of cancellation of the agreement.
130
s. 66
(4) The goods must be returned in a condition substantially as good as when the goods were taken. (5) If the supplier has disposed of the goods taken as a trade-in under or in respect of the agreement before the cancellation of the agreement, the supplier must pay to the purchaser the reasonable cost of replacing the goods. 66 What can the supplier charge on cancellation? (1) The supplier under a contact sales agreement may make a reasonable charge for any goods which the purchaser is unable to return on cancellation of the agreement under this Division. (2) If a contact sales agreement is cancelled under this Division, a supplier is not entitled to charge for services provided under the agreement before it is cancelled, except in accordance with this section. (3) If a purchaser cancels a contact sales agreement under this Division, the supplier may apply to the Tribunal for an order that the purchaser must pay to the supplier a reasonable amount (to be determined by the Tribunal) for services provided under the agreement before it was cancelled. (3A) The Tribunal must not make an order under subsection (3) unless the Tribunal is satisfied that the supplier or a person acting on behalf of the supplier has not contravened this Act in relation to the contact sales agreement. (4) The supplier may deduct an amount payable by a purchaser under this section from any money required to be paid to the purchaser under section 65.
S. 66(2) substituted by No. 30/2003 s. 29.
S. 66(3) substituted by No. 30/2003 s. 29.
S. 66(3A) inserted by No. 30/2003 s. 29.
131
s. 67
67 What must the purchaser do on cancellation? (1) If the purchaser under a contact sales agreement for the supply of goods cancels the agreement during the cooling-off period, the purchaser must immediately (a) return the goods to the supplier; or (b) notify the supplier of the place where the supplier may collect the goods. (2) If a purchaser gives a notice to a supplier under subsection (1) and the supplier does not collect the goods within 30 days after the cancellation of the agreement, the goods become the property of the purchaser free of any other right or interest. (3) If the purchaser under a contact sales agreement fails to take reasonable care of goods which are returned to a supplier or collected by a supplier under this section, the purchaser is liable to pay compensation to the supplier for any damage to or depreciation in the value of the goods.
Pt 4 Div. 2A (Heading and ss 67A67M) inserted by No. 106/2003 s. 7. S. 67A inserted by No. 106/2003 s. 7.
Division 2ATelephone marketing agreements
67A What is a telephone marketing agreement? (1) An agreement is a telephone marketing agreement if (a) it is for the supply in trade or commerce of goods or services of a kind ordinarily used for personal, household or domestic use; and (b) the negotiations leading to the making of the agreement (whether or not they are the only negotiations that precede the making of the agreement) take place between the supplier
132
s. 67A
or a person acting on behalf of the supplier and the purchaser over the telephone; and (c) the initial telephone call for the purpose of entering into the negotiations was made by or on behalf of the supplier; and (d) the total consideration payable by the purchaser under the agreement (i) is not ascertainable at the time of making the agreement; or (ii) is ascertainable at the time of making the agreement and exceeds $100. (2) Despite subsection (1)(c), an agreement is not a telephone marketing agreement if (a) the purchaser invited the supplier or a person acting on behalf of the supplier to make that initial telephone call (including by a prior written consent of the purchaser for the supplier or a person acting on behalf of the supplier to telephone the purchaser for the purpose of entering into a telephone marketing agreement); or (b) after that initial telephone call, the purchaser telephoned the supplier or a person acting on behalf of the supplier to continue the negotiations; or (c) after that initial telephone call, the negotiations were continued in the physical presence of the purchaser or a person acting on behalf of the purchaser and the supplier or a person acting on behalf of the supplier.
S. 67A(1)(d)(ii) amended by No. 42/2004 s. 4.
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s. 67A
(3) If (a) 2 or more agreements relate substantially to the same transaction; and (b) the transaction could have been effected by a single agreement which would have constituted a telephone marketing agreement then (c) each of the agreements that would not, if it stood alone, constitute a telephone marketing agreement becomes a telephone marketing agreement; and
S. 67A(3)(d) amended by No. 103/2004 s. 7.
(d) each agreement is deemed to have been made when the last of the agreements was made. (4) If it is alleged in any proceeding in respect of a matter arising under this Act that an agreement is a telephone marketing agreement, it is presumed, unless the contrary intention is established, that the agreement is a telephone marketing agreement. (5) Despite subsection (1), the following are not telephone marketing agreements (a) an agreement solely for the provision of credit; (b) a contract of guarantee; (c) a mortgage;
134
s. 67B
(d) an agreement for the connection of premises to water, sewerage or a telephone service (other than a mobile telephone service) unless, as a result of the agreement, responsibility for the supply of that service is transferred from one supplier to another supplier. 67B Duty to cease telephone marketing A supplier or a person acting on behalf of a supplier who is carrying on negotiations on the telephone which may lead to a telephone marketing agreement or for an incidental or related purpose must (a) cease those negotiations immediately on the request of the person with whom the negotiations are being conducted; and (b) refrain from contacting that person for 30 days for the purpose of negotiations which may lead to a telephone marketing agreement with that supplier. Penalty: 60 penalty units, in the case of a natural person. 120 penalty units, in the case of a body corporate. 67C Permitted hours for telephone marketing A supplier or a person acting on behalf of a supplier must not contact a person for the purpose of negotiations which may lead to a telephone marketing agreement or for an incidental or related purpose (a) at any time on a public holiday; or (b) on a Saturday or a Sunday (i) between midnight and 9.00 am; or (ii) between 5.00 pm and midnight; or 135
S. 67C inserted by No. 106/2003 s. 7. S. 67B inserted by No. 106/2003 s. 7.
s. 67D
(c) on any other day (i) between midnight and 9.00 am; or (ii) between 8.00 pm and midnight. Penalty: 120 penalty units, in the case of a natural person. 240 penalty units, in the case of a body corporate.
S. 67D inserted by No. 106/2003 s. 7.
67D Purchaser must give explicit informed consent (1) A telephone marketing agreement is void unless the purchaser has, prior to the telephone marketing agreement being made, given explicit informed consent to the supplier or a person acting on behalf of the supplier.
Note Section 67M sets out the consequences flowing from a purported telephone marketing agreement being void.
(2) If a telephone marketing agreement is void under subsection (1) any related contract or instrument is also void. (3) Subsection (2) does not affect the operation of the Consumer Credit (Victoria) Code in its application to a tied loan contract as defined in that Code. (4) For the purposes of this section, explicit informed consent in relation to a telephone marketing agreement means the consent to make the agreement (a) must be given by the purchaser directly to the supplier or a person acting on behalf of the supplier (i) in writing signed by the purchaser; or (ii) orally; and
136
s. 67D
(b) if given orally, must be recorded in accordance with subsection (5); and (c) must be given only after the supplier or a person acting on behalf of the supplier has, clearly, fully and adequately disclosed all matters relevant to the consent of the purchaser, including each specific purpose or use of the consent. (5) For the purposes of subsection (4)(b), the supplier or a person acting on behalf of the supplier must record the consent (a) in writing; or (b) with the prior consent of the purchaser, by means of a recording device. (6) The supplier or a person acting on behalf of a supplier must not record (otherwise than in writing) the purchaser's consent to make a telephone marketing agreement, unless the purchaser has given his or her prior consent to the recording. Penalty: 60 penalty units, in the case of a natural person. 120 penalty units, in the case of a body corporate. (7) The supplier must keep the record of the purchaser's explicit informed consent for 12 months. Penalty: 60 penalty units, in the case of a natural person. 120 penalty units, in the case of a body corporate.
137
s. 67E
(8) The supplier or a person acting on behalf of the supplier must not enter, or purport to enter, into a telephone marketing agreement unless that supplier or person has, during the telephone negotiations which led to the agreement or purported agreement, advised the purchaser of the right to cancel the agreement within the coolingoff period applying to that agreement. Penalty: 120 penalty units, in the case of a natural person. 240 penalty units, in the case of a body corporate.
67E Requirements for a telephone marketing agreement (1) Within 5 days after making the telephone marketing agreement or any longer period agreed by the parties, the supplier must serve on the purchaser (a) a document evidencing the agreement (the agreement document); and (b) a notice completed in accordance with Part 2 of Schedule 2 which may be used by the purchaser to cancel the agreement. (2) The agreement document and notice referred to in subsection (1) may be served on the purchaser (a) personally; or (b) by post; or (c) with the consent of the purchaser, by electronic communication.
138
s. 67E
(3) The following requirements must be complied with in relation to a telephone marketing agreement (a) the agreement document must set out in full all the terms of the agreement, including (i) the total consideration to be paid or provided by the purchaser under the agreement or, if the total consideration is not ascertainable at the time the agreement is made, the manner in which it is to be calculated; (ii) any postal or delivery charges to be paid by the purchaser; (b) the agreement document must (i) include on its front page a notice which must, in accordance with Part 1 of Schedule 2, advise the purchaser of the right to cancel the agreement; and (ii) set out in full the name and business address (not being a post box) of the supplier; and (iii) be printed clearly or typewritten (apart from any amendments to the printed or typewritten form which may be handwritten) and otherwise must comply with section 163; and (c) any amendments to the agreement must be signed by both parties to the agreement. (4) The information required under subsections (3)(a)(i) and (3)(a)(ii), (3)(b)(i) and (3)(b)(ii) must be conspicuous and prominent in the agreement document or notice (as the case may be).
139
s. 67F
(5) The Director may approve an agreement or class of agreements or an agreement document or class of agreement documents which do not comply with the requirements of subsection (1)(b), (3) or (4) if the Director is satisfied that the agreements or agreement documents provide a level of disclosure substantially equivalent to the requirements of that provision. (6) An agreement or agreement document approved, or in a class approved, under subsection (5) is not required to comply with subsection (1)(b), (3) or (4).
S. 67F inserted by No. 106/2003 s. 7.
67F Supplier must comply with requirements (1) If section 67E is not complied with in relation to a telephone marketing agreement, the supplier under the agreement and any person entering into the agreement on behalf of the supplier are each guilty of an offence and liable to a penalty of not more than (a) 120 penalty units, in the case of a natural person; or (b) 240 penalty units, in the case of a body corporate. (2) The supplier under a telephone marketing agreement cannot enforce the agreement against the purchaser if the supplier or a person entering into the agreement on behalf of the supplier fails to comply with section 67E.
S. 67G inserted by No. 106/2003 s. 7.
67G When does a telephone marketing agreement commence? (1) Subject to this Division, a telephone marketing agreement commences on the day it is made. (2) A telephone marketing agreement is made on the day that the purchaser gives explicit informed consent to make the agreement under section 67D.
140
s. 67H
S. 67H inserted by No. 106/2003 s. 7.
67H When and how can the purchaser cancel the agreement? (1) Subject to subsection (2), a purchaser under a telephone marketing agreement may cancel that agreement by giving notice of cancellation to the supplier or a person acting on behalf of the supplier within 10 days from and including the day on which the purchaser receives the agreement document and the notice completed in accordance with Part 2 of Schedule 2 or within such longer period as the agreement may provide. (2) In relation to a telephone marketing agreement for the supply of raffle or other lottery tickets, the right of the purchaser to cancel the agreement under subsection (1) does not apply on or after the date of the drawing of the raffle or other lottery. (3) Despite subsection (1), the purchaser under the telephone marketing agreement may cancel the agreement by giving notice of cancellation to the supplier within 6 months from the day on which the agreement was made if the supplier or a person acting on behalf of the supplier does not comply with section 67E(1) or 67E(3)(b)(i). (4) A notice of cancellation may be given in the form of the notice in Part 2 of Schedule 2. (5) Subsection (4) does not apply to an agreement or agreement document approved or in a class approved under section 67E(5) if the Director approves a different method of notice of cancellation in the case of that agreement or document.
141
s. 67I
(6) A notice of cancellation under this section may be given (a) if a form of notice of cancellation accompanied the agreement document (i) by leaving it at or posting it to the business address of the supplier or other address of the supplier shown on that form; or (ii) by faxing it to the facsimile number of the supplier shown on that form; or (b) if the form of notice of cancellation does not accompany the agreement document, by leaving it at or posting it to the last known place of business of the supplier; or (c) by telephoning the supplier or the person acting on behalf of the supplier with whom the negotiations were conducted.
S. 67H(7) amended by No. 42/2004 s. 5. S. 67I inserted by No. 106/2003 s. 7.
(7) In this section, raffle, lottery and ticket have the same meanings as in section 1.3 of the Gambling Regulation Act 2003. 67I What is the effect of cancellation? (1) If a telephone marketing agreement is cancelled during the cooling-off period, the agreement is deemed to have been rescinded by mutual consent. (2) If a telephone marketing agreement is cancelled during the cooling-off period, any related contract or instrument is void. (3) Subsection (2) does not affect the operation of the Consumer Credit (Victoria) Code in its application to a tied loan contract as defined in that Code.
142
s. 67J
S. 67J inserted by No. 106/2003 s. 7.
67J What must the supplier do on cancellation? (1) If a telephone marketing agreement is cancelled within the cooling-off period, the supplier must immediately repay to the purchaser any money paid by the purchaser under the agreement or a related contract or instrument. (2) If a telephone marketing agreement is cancelled within the cooling-off period, the supplier must return to the purchaser any goods taken as a trade-in under or in respect of the agreement. (3) The goods must be returned within 10 days after the supplier receives the notice of cancellation of the agreement. (4) The goods must be returned in a condition substantially as good as when the goods were taken. (5) If the supplier has disposed of the goods taken as a trade-in under or in respect of the agreement before the cancellation of the agreement, the supplier must pay to the purchaser the reasonable cost of replacing the goods. 67K What can the supplier charge on cancellation? (1) The supplier under a telephone marketing agreement may make a reasonable charge for any goods which the purchaser is unable to return on cancellation of the agreement under this Division. (2) If a telephone marketing agreement is cancelled under this Division, a supplier is not entitled to charge for services provided under the agreement before it is cancelled, except in accordance with this section.
S. 67K inserted by No. 106/2003 s. 7.
143
s. 67L
(3) If a purchaser cancels a telephone marketing agreement under this Division, the supplier may apply to the Tribunal for an order that the purchaser must pay to the supplier a reasonable amount (to be determined by the Tribunal) for services provided under the agreement before it was cancelled. (4) The Tribunal must not make an order under subsection (3) unless the Tribunal is satisfied that the supplier or a person acting on behalf of the supplier has not contravened this Act in relation to the telephone marketing agreement. (5) The supplier may deduct an amount payable by a purchaser under this section from any money required to be paid to the purchaser under section 67J.
S. 67L inserted by No. 106/2003 s. 7.
67L What must the purchaser do on cancellation? (1) If the purchaser under a telephone marketing agreement for the supply of goods cancels the agreement during the cooling-off period, the purchaser must immediately (a) return the goods to the supplier; or (b) notify the supplier of the place where the supplier may collect the goods. (2) If a purchaser gives a notice to a supplier under subsection (1) and the supplier does not collect the goods within 30 days after the cancellation of the agreement, the goods become the property of the purchaser free of any other right or interest. (3) If the purchaser under a telephone marketing agreement fails to take reasonable care of goods which are returned to a supplier or collected by a supplier under this section, the purchaser is liable to pay compensation to the supplier for any damage to or depreciation in the value of the goods. 144
s. 67M
S. 67M inserted by No. 106/2003 s. 7.
67M What if the telephone marketing agreement is void for lack of explicit informed consent? (1) If a telephone marketing agreement and any related contract or instrument (the purported agreement) are void under section 67D (a) the supplier must repay to the purchaser any money paid by the purchaser under the purported agreement; and
Note Section 67D(3) operates to ensure that section 67D(2) does not affect the operation of the Consumer Credit (Victoria) Code in its application to a tied loan contract as defined in that Code.
(b) the supplier must return to the purchaser any goods taken as a trade-in under or in respect of the purported agreement; and (c) the goods must be returned in a condition substantially as good as when the goods were taken; and (d) if the supplier has disposed of the goods taken as a trade-in under or in respect of the purported agreement, the supplier must pay to the purchaser the reasonable cost of replacing the goods; and (e) the supplier under the purported agreement may apply to the Tribunal for an order that (i) the purchaser must return goods provided to the purchaser by the supplier under the purported agreement; (ii) the purchaser must pay to the supplier a reasonable amount (to be determined by the Tribunal) for goods or services provided by the supplier under the purported agreement;
145
s. 68
(iii) the supplier may keep any money paid by the purchaser for goods or services under the purported agreement. (2) The Tribunal may only make an order under this section if it is satisfied that, in all the circumstances, it is just to do so. Division 3Non-contact sales agreements 68 What is a non-contact sales agreement? (1) An agreement is a non-contact sales agreement if (a) it is an agreement for the supply in trade or commerce of goods or services of a kind ordinarily used for personal, household or domestic use; and (b) the agreement is made or entered into otherwise than in the presence of both the purchaser (or a person acting on behalf of the purchaser) and the supplier (or a person acting on behalf of the supplier); and (c) the agreement is made with a purchaser who has not attended the premises of the supplier in respect of the goods or services or the class of goods or services to which the agreement applies before making or entering into the agreement. (2) Despite subsection (1), the following are not noncontact sales agreements (a) an agreement solely for the provision of credit; (b) a contract of guarantee; (c) a mortgage;
146
s. 68A
S. 68(2)(d) inserted by No. 106/2003 s. 8. S. 68A inserted by No. 106/2003 s. 9.
(d) a telephone marketing agreement.
68A Duty to cease telephone marketing for non-contact sales agreement A supplier or a person acting on behalf of a supplier who is carrying on negotiations on the telephone which may lead to a non-contact sales agreement or for an incidental or related purpose must (a) cease those negotiations immediately on the request of the person with whom the negotiations are being conducted; and (b) refrain from contacting that person for 30 days for the purpose of negotiations which may lead to a non-contact sales agreement with that supplier. Penalty: 60 penalty units, in the case of a natural person. 120 penalty units, in the case of a body corporate. 69 Requirements for non-contact sales agreements (1) Before a non-contact sales agreement is entered into, the following information must be provided to the purchaser (a) the total consideration to be paid or provided by the purchaser under the agreement; (b) any postal or delivery charges to be paid by the purchaser; (c) any rights the purchaser has under the agreement to cancel the agreement and how those rights may be exercised;
147
s. 70
(d) the full name of the supplier and either the full business address of the supplier or the telephone number of the supplier.
S. 69(1A) inserted by No. 17/2007 s. 4. S. 69(2) substituted by No. 30/2003 s. 30.
(1A) Subsection (1)(d) does not limit the operation of section 29. (2) If a non-contact sales agreement is in writing (a) the document must comply with section 163 and must include the full business address of the supplier; and (b) the information under subsection (1), and the full business address of the supplier, must be conspicuous and prominent in the agreement. (3) If a non-contact sales agreement is not in writing, the information under subsection (1) must be given clearly. (4) If a non-contact sales agreement is not in writing, the information set out in subsection (1) and the full business address of the supplier must be given to the purchaser in writing at or before the time that the goods are delivered or before the services are performed. 70 Supplier must comply with requirements (1) If any requirement of section 69 is not complied with in relation to a non-contact sales agreement, the supplier under the agreement and any person entering into the agreement on behalf of the supplier are each guilty of an offence and liable to a penalty of not more than (a) 120 penalty units, in the case of a natural person; or (b) 240 penalty units, in the case of a body corporate.
148
s. 71
(2) The supplier under a non-contact sales agreement cannot enforce the agreement against the purchaser if the supplier or a person entering into the agreement on behalf of the supplier fails to comply with section 69. 71 When can the purchaser cancel the agreement? (1) A purchaser under a non-contact sales agreement may cancel the agreement within a period specified under the agreement if the agreement so permits. (2) Despite anything to the contrary in a non-contact sales agreement to which subsection (1) applies, the period for cancellation specified in the agreement is deemed to be 10 days from and including the relevant day unless a longer period is specified in the agreement. (3) In this section the relevant day is (a) in the case of an agreement for the supply of goods, the day the goods are received by the purchaser; and (b) in the case of services, the day that the agreement is made or entered into. (4) If the date of receipt of goods by the purchaser cannot be ascertained, that date is deemed to be the date 3 business days after the goods were dispatched by the supplier. 72 What is the effect of cancellation? (1) If a non-contact sales agreement is cancelled during the cooling-off period, the agreement is deemed to have been rescinded by mutual consent. (2) If a non-contact sales agreement is cancelled during the cooling-off period, any related contract or instrument is void.
S. 71(2) amended by No. 30/2003 s. 31.
149
s. 73
(3) Subsection (2) does not affect the operation of the Consumer Credit (Victoria) Code in its application to a tied loan contract as defined in that Code. 73 What must the supplier do on cancellation? (1) If a non-contact sales agreement is cancelled within the cooling-off period, the supplier must immediately repay to the purchaser any money paid by the purchaser under the agreement or a related contract or instrument. (2) If a non-contact sales agreement is cancelled within the cooling-off period, the supplier must return to the purchaser any goods taken as a trade-in under or in respect of the agreement. (3) The goods must be returned within 10 days after the supplier receives the notice of cancellation of the agreement. (4) The goods must be returned in a condition substantially as good as when the goods were taken. (5) If the supplier has disposed of the goods taken as a trade-in under or in respect of the agreement before the cancellation of the agreement, the supplier must pay to the purchaser the reasonable cost of replacing the goods. 74 What can the supplier charge on cancellation? (1) The supplier under a non-contact sales agreement may make a reasonable charge for any goods which the purchaser is unable to return on cancellation of the agreement. (2) The supplier under a non-contact sales agreement may make a reasonable charge for services rendered under the agreement before it is cancelled.
150
s. 75
(3) Subsection (2) does not apply if the supplier has contravened section 12(j) in relation to the supply of the services. (4) The supplier may deduct an amount payable by a purchaser under this section from any money required to be paid to the purchaser under section 73. 75 What must the purchaser do on cancellation? (1) If the purchaser under a non-contact sales agreement for the supply of goods cancels the agreement during the cooling-off period, the purchaser must immediately (a) return the goods to the supplier; or (b) arrange with the supplier for the return of the goods to the supplier. (2) The purchaser under a non-contact sales agreement must pay the cost of the return of the goods under subsection (1) unless (a) the agreement otherwise provides; or (b) the goods supplied were not of merchantable quality. (3) If the purchaser under a non-contact sales agreement fails to take reasonable care of goods which are returned to a supplier under this section, the purchaser is liable to pay compensation to the supplier for any damage to or depreciation in the value of the goods. Division 4General * * * * *
Ss 76, 77 repealed by No. 30/2003 s. 32.
151
s. 79
S. 78 repealed by No. 106/2003 s. 10. S. 79 amended by No. 106/2003 s. 11.
79 Trade-in not to be sold during cooling-off period A supplier under a contact sales agreement, a telephone marketing agreement or a non-contact sales agreement must not during the cooling-off period for that agreement sell or dispose of any goods taken as trade-in under or in respect of the agreement. Penalty: 120 penalty units, in the case of a natural person. 240 penalty units, in the case of a body corporate.
S. 80 substituted by No. 30/2003 s. 33, amended by No. 106/2003 s. 12.
80 Prohibition on payment for services during coolingoff period A supplier must not require or accept payment from a purchaser under a contact sales agreement, a telephone marketing agreement or a non-contact sales agreement during the cooling-off period for that agreement for services provided under that agreement during that period. Penalty: 120 penalty units, in the case of a natural person. 240 penalty units, in the case of a body corporate. 81 Certain provisions in agreements void
S. 81(1) amended by No. 106/2003 s. 13.
(1) A provision, term, condition or covenant in a contact sales agreement, a telephone marketing agreement or a non-contact sales agreement or a related contract or agreement is void if it excludes, limits, modifies or restricts or purports to exclude, limit, modify or restrict a right to cancel the agreement during a cooling-off period. 152
s. 82
S. 81(2) amended by No. 106/2003 s. 13.
(2) A provision, term, condition or covenant in a contact sales agreement, a telephone marketing agreement or a non-contact sales agreement is void to the extent that it excludes, limits, modifies or restricts the effect or operation of this Part if, but for the provision, term, condition or covenant, this Part would apply to the agreement. (3) If a contact sales agreement, a telephone marketing agreement or a non-contact sales agreement contains a provision, term, condition or covenant that is void under subsection (1), the supplier is guilty of an offence and liable to a penalty of not more than (a) 120 penalty units, in the case of a natural person; or (b) 240 penalty units, in the case of a body corporate. 82 Recovery of money (1) The supplier or the purchaser under a contact sales agreement, a telephone marketing agreement or a non-contact sales agreement may apply to any court of competent jurisdiction or to the Tribunal for the determination of any amount payable to the supplier or purchaser under this Part on the cancellation of the agreement. (2) The supplier or the purchaser under a contact sales agreement, a telephone marketing agreement or a non-contact sales agreement may take action in any court of competent jurisdiction to recover as a debt any amount payable to the supplier or purchaser under this Part on the cancellation of the agreement.
S. 81(3) amended by No. 106/2003 s. 13.
S. 82(1) amended by No. 106/2003 s. 14.
S. 82(2) amended by No. 106/2003 s. 14.
153
s. 82
S. 82(3) amended by No. 106/2003 s. 14.
(3) The purchaser has a lien over any goods supplied under a contact sales agreement, a telephone marketing agreement or non-contact sales agreement which are in the possession of the purchaser for any amount which the purchaser is entitled to recover from the supplier under this Part in respect of that agreement. _______________
154
Fair Trading Act 1999 No. 16 of 1999 Part 5Lay-By Sales
s. 83
PART 5LAY-BY SALES
83 Statement of lay-by terms (1) The supplier under a lay-by must ensure that a written statement of the lay-by terms is completed which complies with the following (a) the statement (i) must be in clear and legible handwriting or in print or type of a size not less than 10 point; and (ii) must be written in the English language and be readily understandable; and (iii) may also be written in a language understood by the purchaser; and (b) the statement must set out (i) a description of the goods, including any brand name or model number; and (ii) the purchase price of the goods; and (iii) the first payment made on the goods and the balance outstanding; and (iv) a method of determining when any payments to be made on the goods are due or the dates by which any such payments are due to be made; and (v) if any charge is payable under the lay-by for the cancellation of the layby, the amount of the cancellation charge or the method of calculating the cancellation charge, and this must appear on the statement in bold writing; and (vi) any other terms of the lay-by; and
S. 83(1)(b)(v) amended by No. 30/2003 s. 34(1).
155
s. 84
S. 83(1)(b)(vii) inserted by No. 30/2003 s. 34(2). S. 83(1)(b)(viii) inserted by No. 30/2003 s. 34(2).
(vii) the purchaser's right to cancel the layby and the procedure to be followed should the purchaser wish to cancel the lay-by; and (viii) the full name and business address (not being a post box) of the supplier; and (c) the statement must be signed by the purchaser; and (d) the statement must be signed by the supplier or a person on behalf of the supplier. Penalty: 60 penalty units, in the case of a natural person. 120 penalty units, in the case of a body corporate. (2) The supplier under a lay-by must ensure that the statement under subsection (1) is given to the purchaser at the time the lay-by is entered into. Penalty: 60 penalty units, in the case of a natural person. 120 penalty units, in the case of a body corporate. 84 Change of lay-by terms The supplier under a lay-by must not alter the terms of a lay-by after the lay-by statement has been given to the purchaser, unless the supplier has first obtained the agreement in writing of the purchaser to the changes. Penalty: 60 penalty units, in the case of a natural person. 120 penalty units, in the case of a body corporate.
156
s. 84A
84A Lay-by goods must be available A supplier must not enter into a lay-by if the supplier is aware that the goods will not be available, or has no reasonable grounds to expect the goods will be available, for delivery to or collection by the purchaser when the terms of the lay-by indicate they will be available. Penalty: 60 penalty units, in the case of a natural person. 120 penalty units, in the case of a body corporate. 85 Cancellation of lay-by by purchaser (1) The purchaser under a lay-by may cancel a lay-by before the goods are delivered or on the delivery of the goods if the goods are damaged by so advising the supplier (a) in writing; or (b) orally, if the supplier agrees. (1A) If a supplier does not agree to accept an oral cancellation of a lay-by, the supplier must provide to the purchaser a prescribed cancellation form (a) if the request for oral cancellation is made in person, by immediately handing it to the purchaser; or (b) if the request for oral cancellation is made by telephone, by posting it to the purchaser as soon as practicable. Penalty: 60 penalty units, in the case of a natural person. 120 penalty units, in the case of a body corporate.
157
s. 86
(2) If a purchaser cancels a lay-by, the supplier must, if so requested by the purchaser, give the purchaser a statement which complies with the following (a) the statement must set out (i) the purchase price of the goods; and
S. 85(2)(a)(ii) amended by No. 30/2003 s. 36(2).
(ii) any cancellation charge payable under the lay-by; and (iii) the total amount paid under the lay-by; and (iv) any amount owing to either the purchaser or the supplier under the terms of the lay-by on the cancellation of the lay-by; and (b) the statement must comply with section 83(1)(a); and (c) the statement must be signed by the supplier or a person on behalf of the supplier. Penalty: 60 penalty units, in the case of a natural person. 120 penalty units, in the case of a body corporate. 86 Cancellation of lay-by by supplier The supplier under a lay-by must not cancel it unless (a) the purchaser breaches a term of the lay-by; or (b) the supplier stops trading; or
158
s. 87
(c) the goods are no longer available. Penalty: 60 penalty units, in the case of a natural person. 120 penalty units, in the case of a body corporate. 87 Cancellation on breach by purchaser (1) If a purchaser has breached a term of a lay-by and the supplier intends to cancel the lay-by, before doing so the supplier must (a) give the purchaser notice of the supplier's intention to cancel the lay-by; and (b) allow the purchaser at least 14 days within which to rectify the breach. Penalty: 60 penalty units, in the case of a natural person. 120 penalty units, in the case of a body corporate. (2) A notice under subsection (1)(a) (a) may be given in writing, sent to the purchaser's last known address, or, if the purchaser so agrees, orally; and (b) must specify the breach of the term of the lay-by for which the lay-by is being cancelled; and (c) must state the time within which the purchaser must rectify the breach; and (d) must state the matters listed in section 85(2)(a); and
159
s. 88
(e) if the notice is in writing, must be in accordance with section 83(1)(a). Penalty: 60 penalty units, in the case of a natural person. 120 penalty units, in the case of a body corporate. (4) A term of a lay-by that the purchaser agrees to accept notice of cancellation by the supplier given other than in writing is void. (5) The lay-by is cancelled at the end of the period specified in the notice unless the purchaser rectifies the breach before then or the supplier agrees not to cancel it.
S. 88 amended by No. 30/2003 s. 37(1).
88 Cancellation where business closes If a supplier under a lay-by proposes to stop trading before the lay-by is completed, the supplier must give notice of the proposal to the purchaser and must either (a) allow the purchaser 7 days within which to complete the lay-by; or (b) cancel the lay-by. 89 Effect of cancellation of lay-by (1) When a lay-by is cancelled (whether by the supplier or the purchaser) the supplier, within 14 days, must refund to the purchaser (a) if the terms of the lay-by provide for a cancellation charge and if subsection (3) does not apply, all money paid by the purchaser under the lay-by other than the cancellation charge; or
S. 88(a) amended by No. 30/2003 s. 37(2).
160
s. 89
(b) if the terms of the lay-by do not provide for a cancellation charge, all the money paid under the lay-by. Penalty: 60 penalty units, in the case of a natural person. 120 penalty units, in the case of a body corporate 1. (2) The supplier is entitled to recover any unpaid cancellation charge from the purchaser as a debt if the amounts paid by the purchaser under the layby are not enough to cover the cancellation charge. (3) If (a) the supplier has breached any term of the lay-by; or (b) the goods were not available for delivery to the purchaser when the terms of the lay-by indicated they would be available; or (c) the supplier has refused to permit the purchaser to inspect the goods; or (d) the goods under the lay-by were lost or damaged; or (e) the purchaser has sought to obtain the goods at the premises at which the lay-by was entered into but cannot do so because the supplier no longer operates a business from those premises and no longer operates a business at a reasonable distance from the purchaser's place of residence or work; or (f) a lay-by statement has not been given to the purchaser or the lay-by statement given to the purchaser does not comply with section 83, is misleading or deceptive or contains a material false representation as to the terms of the lay-by; or 161
s. 90
(g) the supplier stops trading (whether or not a notice under section 88 has been given) the supplier is not entitled to recover any amount by way of cancellation charge and must refund to the purchaser any amount kept by the supplier by way of cancellation charge. Penalty: 60 penalty units, in the case of a natural person. 120 penalty units, in the case of a body corporate. 90 Cancellation charge must not exceed a reasonable amount
S. 90(1) amended by No. 30/2003 s. 38.
(1) If a supplier proposes to enter into a lay-by in which there is to be provision for a cancellation charge, the supplier must not enter into the lay-by unless the lay-by provides for the cancellation charge to be an amount not more than the sum of (a) an amount sufficient to reimburse the supplier for reasonable selling costs (including storage costs and administrative expenses) in respect of the lay-by; and (b) an amount that equates to any loss of value of the goods (whether due to deterioration or otherwise) between the time when the lay-by was entered into and the time when the lay-by was cancelled which could not have been avoided by reasonable diligence on the part of the supplier. Penalty: 60 penalty units, in the case of a natural person. 120 penalty units, in the case of a body corporate.
162
s. 91
(2) The supplier has the onus of establishing (a) reasonable selling costs in respect of the lay-by; and (b) any loss of value of the goods which could not have been avoided by reasonable diligence on the part of the supplier. 91 Limits on supplier's remedies If a term of a lay-by is breached or a lay-by is cancelled by either party, the supplier (a) is not entitled to keep or recover any money from the purchaser; and (b) is not otherwise entitled to damages or to enforce any other remedy in respect of the breach or cancellation, except the remedies specifically provided for by this Act. 92 Demands for early payment Subject to section 88, if it is a term of a lay-by that payment in full, or that payment of an instalment must be made by a fixed or ascertainable date, the supplier must not demand payment before that date. Penalty: 60 penalty units, in the case of a natural person. 120 penalty units, in the case of a body corporate. 93 Effect of contracting out A term of a lay-by is void to the extent that it would operate to exclude, limit, modify or restrict the operation of this Part. __________________
163
s. 93A
Fair Trading Act 1999 No. 16 of 1999 Part 5AFair Reporting
Pt 5A (Heading and ss 93A93D) inserted by No. 6/2008 s. 27. S. 93A inserted by No. 6/2008 s. 27.
PART 5AFAIR REPORTING
93A Definitions In this Part consumer means any person with respect to whom (a) a credit report is made; or (b) any information is held by a credit reporting agent; credit report means any written, oral, or other communication with respect to the credit worthiness, credit standing, or credit capacity of a person but does not include a report containing information solely as to transactions or communications between the person making the report and the person who is the subject of the report; credit reporting agent means a person who engages in the practice of providing credit reports to any other person, whether for profit or reward or on a regular co-operative basis.
93B Correction of errors (1) A consumer who disputes the accuracy or completeness in relation to the consumer of any information compiled by a credit reporting agent may request the agent to correct the information. (2) A request under subsection (1) must be by written notice which must (a) include details of the matters in dispute; and
164
s. 93C
(b) be served on the agent personally or by post or by electronic communication. (3) If a consumer makes a request under subsection (1), the credit reporting agent must, within 30 days, inform the consumer (a) as to whether or not the agent has made any amendment or supplement to or deletion from the information recorded in relation to that consumer; and (b) if so, of the full details of the amendment, supplement or deletion. (4) If a credit reporting agent amends, supplements or deletes information, the agent must give written notice of that fact to the following persons within 30 days (a) all persons who have been supplied with information with respect to the consumer within 6 months before the amendment, supplement or deletion is made; (b) any persons to whom the credit reporting agent has supplied information and whom the consumer requires the agent to notify of the amendment, supplement or deletion. 93C Consumer may apply to court where agent fails to correct information etc. (1) This section applies if a consumer makes a request under section 93B and (a) does not receive any of the information referred to in section 93B(3) within 30 days after making the request; or (b) is informed that the credit reporting agent has not made any amendment or supplement to or deletion from the information recorded in relation to the consumer; or
S. 93C inserted by No. 6/2008 s. 27.
165
s. 93D
(c) is not satisfied with any amendment supplement or deletion of which the consumer is informed. (2) The consumer may apply to the Magistrates' Court for an order requiring the credit reporting agent to make any or any further amendment or supplement to or deletion from information compiled in relation to that consumer. (3) A consumer must serve written notice of an application under subsection (2) on the credit reporting agent within 7 days after making the application.
93D Powers of Court on application (1) On an application under section 93C, the Court may (a) order that all or any persons or any class or description of persons be excluded from the court during all or any of the proceedings and, in case of disobedience, order the removal from the court of those persons; or (b) by order prohibit the publication of a report of the proceedings; or (c) make orders under both paragraphs (a) and (b). (2) On hearing an application under section 93C, the Court may order a credit reporting agent (a) to amend, supplement, or delete any item of information concerning the consumer that is in the agent's possession or under the agent's control (i) which the Court is satisfied is inaccurate, misleading, or irrelevant to the purpose for which the information is kept; or
166
s. 93D
(ii) which the Court is of the opinion should be amended, supplemented, or deleted by reason of the effluxion of time; and (b) to give full details of that amendment, supplement, or deletion to any person to whom the credit reporting agent has provided information with respect to the consumer and who is specified in the order. (3) A credit reporting agent must comply with an order under this section. Penalty: 60 penalty units or imprisonment for 6 months. _______________
167
s. 94
Fair Trading Act 1999 No. 16 of 1999 Part 6Codes of Practice
PART 6CODES OF PRACTICE
94 Preparation of draft code of practice by the Director The Director may, with the approval of the Minister, and must, if the Minister so directs, prepare for submission to the Minister a draft code of practice for fair trading (a) between a particular class of suppliers and any purchasers; or (b) by a particular class of persons and a particular class of purchasers; or (c) in relation to the supply of a particular kind of goods or services. 95 Consideration of draft code of practice prepared by other persons If the Director is satisfied that suppliers of goods or services or persons associated with the supply of goods or services have, in consultation with other interested persons, agreed to abide by a particular code of practice in the supply of those goods or services, the Director may submit the code to the Minister for consideration together with any recommendations of the Director with respect to the code. 96 Prescribing codes of practice The Minister may (a) recommend to the Governor in Council that the Governor in Council make regulations prescribing a code of practice which (i) has been prepared and submitted to the Minister under section 94; or (ii) has been submitted to the Minister under section 95; or
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Fair Trading Act 1999 No. 16 of 1999 Part 6Codes of Practice
s. 97
(b) recommend that the Governor in Council make regulations prescribing such a code of practice with the amendments made by the Minister. 97 Offence to breach code of practice A person must comply with a code of practice prescribed under this Act. Penalty: 20 penalty units. _______________
169
s. 98
Fair Trading Act 1999 No. 16 of 1999 Part 7Administration
PART 7ADMINISTRATION
S. 98 (Heading) inserted by No. 30/2003 s. 39(1). S. 98 substituted by No. 35/2000 s. 39, amended by Nos 30/2003 s. 39(2), 108/2004 s. 117(1) (Sch. 3 item 74.2). S. 99 amended by No. 108/2004 s. 117(1) (Sch. 3 item 74.2).
98 Director of Consumer Affairs Victoria There is to be a Director of Consumer Affairs Victoria employed under Part 3 of the Public Administration Act 2004.
99 Staff There may be employed under Part 3 of the Public Administration Act 2004 any other employees that are necessary for the administration of this Act. 100 Functions and powers of the Director (1) The functions of the Director include the following
S. 100(1)(a) amended by No. 30/2003 s. 40(1)(a). S. 100(1)(b) amended by No. 30/2003 s. 40(1)(b). S. 100(1)(ba) inserted by No. 103/2004 s. 8(1). S. 100(1)(bb) inserted by No. 103/2004 s. 8(1).
(a) to advise persons of their rights and obligations under this Act or a Consumer Act; (b) to receive complaints from persons and to deal with them in accordance with this Act or a Consumer Act; (ba) to monitor compliance with this Act and the regulations and the Consumer Acts and the regulations under the Consumer Acts; (bb) to prepare and publish guidelines in relation to the operation and enforcement of this Act or the regulations or a Consumer Act or the regulations under a Consumer Act;
170
s. 100
S. 100(1)(c) amended by No. 30/2003 s. 40(1)(c). S. 100(1)(d) amended by No. 30/2003 s. 40(1)(d). S. 100(1)(e) amended by Nos 30/2003 s. 40(1)(e), 2/2008 s. 5. S. 100(1)(f) substituted by No. 103/2004 s. 8(2).
(c) to investigate breaches of this Act or the regulations or of a Consumer Act or the regulations under a Consumer Act; (d) to prosecute breaches of this Act or the regulations or of a Consumer Act or the regulations under a Consumer Act; (e) to institute and defend proceedings to achieve the purposes of this Act or the purposes of a Consumer Act; (f) to encourage the preparation and use of codes of practice for guidance in safeguarding and promoting the interests of purchasers of goods and services; (fa) to prepare codes of practice safeguarding and promoting the interests of purchasers of goods and services and submit those codes of practice to the Minister for inclusion in the regulations under this Act; (g) in respect of matters affecting the interests of purchasers and suppliers (i) to investigate those matters; and (ii) to conduct research; and (iii) to collect and collate information; (h) to report to the Minister on any matter in relation to fair trading which he or she has investigated, either on his or her own motion or at the request of the Minister; (i) to educate and inform people on fair trading issues; (j) any other function conferred on the Director by or under this Act or any other Act. (2) The Director has all the powers necessary to perform his or her functions. 171
S. 100(1)(fa) inserted by No. 103/2004 s. 8(2).
s. 101
S. 101 amended by Nos 30/2003 s. 40(2), 108/2004 s. 117(1) (Sch. 3 item 74.2).
101 Powers of delegation The Director, by instrument, may delegate to any person or class of person employed under Part 3 of the Public Administration Act 2004 in the administration of this Act, any of the Director's functions or powers under this Act, other than this power of delegation or a power of the Director under section 106I. 102 Director's report (1) The Director must submit an annual report on the operation of this Act to the Minister on or before 31 December in each year. (2) The Minister must cause a report received under subsection (1) to be laid before each House of Parliament within 21 sitting days of that House after it is received. _______________
172
Fair Trading Act 1999 No. 16 of 1999 Part 8Powers of Director
s. 103
PART 8POWERS OF DIRECTOR
Pt 8 (Heading) substituted by No. 30/2003 s. 41(1). Pt 8 Div. 1 (Heading) inserted by No. 30/2003 s. 41(2).
Division 1Disputes
103 Making a complaint (1) Any person may complain to the Director about any matter which the Director has power to refer to conciliation under section 104. (2) A person may complain to the Director in writing. (3) The Director may ask a person who has made a complaint to give more information about the complaint within the time fixed by the Director. (4) A person who has made a complaint must give his or her name to the Director and such other information relating to his or her identity as the Director may require. 104 Conciliation and mediation
S. 104 (Heading) inserted by No. 103/2004 s. 9(1). S. 104(1) amended by Nos 30/2003 s. 42(a), 103/2004 s. 9(2).
(1) The Director may refer to a consumer affairs employee for conciliation or mediation any dispute (which is reasonably likely to be settled) (a) between a purchaser (who is a natural person) or a possible purchaser (who is a natural person) and a supplier about a supply or possible supply of goods or services in trade or commerce;
173
s. 105
(b) between a purchaser (who is not a natural person) or a possible purchaser (who is not a natural person) and a supplier about a supply or possible supply of goods or services in trade or commerce, which the Director believes involves a matter of significant public interest. (2) If the whole or any part of a dispute under subsection (1) falls within the jurisdiction of any prescribed person or body, the Director must refer the dispute, or that part of the dispute, to the person within whose jurisdiction it falls. (3) Subsection (1) applies whether or not a person has made a complaint. (4) In this section
S. 104(4) def. of fair trading employee re-named as consumer affairs employee by No. 30/2003 s. 42(b), amended by No. 108/2004 s. 117(1) (Sch. 3 item 74.2).
consumer affairs employee means any person employed under Part 3 of the Public Administration Act 2004 in the administration of this Act.
S. 105 amended by No. 30/2003 s. 43, substituted by No. 103/2004 s. 10.
105 Powers of the Director in relation to proceedings on behalf of consumers (1) The Director may, subject to this section, institute or continue proceedings on behalf of, or defend proceedings brought against, a person or persons in respect of a consumer dispute.
174
s. 105
(2) The Director must not, under subsection (1), institute or continue or defend proceedings unless the Director is satisfied (a) that the person or persons have a good cause of action or a good defence to an action relating to the consumer dispute; and (b) that the person or persons are not bringing proceedings against a natural person who is acquiring goods or services of a kind ordinarily used for personal, household or domestic purposes; and (c) that it is in the public interest to institute, continue or defend proceedings on behalf of the person or persons. (3) The Director must not, under subsection (1), institute, continue or defend proceedings on behalf of a person or persons unless (a) the person has or the persons have given consent in writing; or (b) in the case of group proceedings or representative proceedings, the representative party has given consent. (4) After consent has been given under subsection (3), the Director may institute or continue a proceeding or defence on behalf of a person or persons even if the person or any of the persons revokes the consent. (5) In this section consumer dispute means a dispute between a purchaser or purchasers or a possible purchaser or purchasers and a supplier about a supply or supplies or possible supply or supplies of goods or services in trade or commerce;
175
s. 106
proceeding includes group proceeding and representative proceeding. 106 Proceedings and costs
S. 106(1) amended by No. 103/2004 s. 11(1)(a).
(1) If the Director institutes, continues or defends proceedings on behalf of a person under section 105 (a) the Director may settle the proceedings either with or without obtaining judgment in the proceedings; and (b) if a judgment is obtained in the proceedings in favour of the person, the Director may take such steps as are necessary to enforce the judgment; and
S. 106(1)(c) amended by Nos 30/2003 s. 44(1)(a), 103/2004 s. 11(1)(b).
(c) subject to subsections (1A) and (1B), an amount (other than an amount in respect of costs) recovered by the Director in respect of the person in the proceedings is payable to the person; and (d) an amount in respect of costs recovered in the proceedings is payable to the Director; and
S. 106(1)(e) amended by No. 30/2003 s. 44(1)(b).
(e) subject to subsection (1A), the person is liable to pay an amount (not being an amount of costs) awarded against the person in the proceedings; and (f) the Director is liable to pay the costs of or incidental to the proceedings that are payable by the person.
S. 106(1A) inserted by No. 30/2003 s. 44(2), amended by No. 103/2004 s. 11(2).
(1A) If the Director institutes, defends or continues proceedings on behalf of a person after the person revokes the consent to the institution, defence or continuation of the proceedings
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(a) the Director must compensate the person for (i) any loss suffered as the result of the loss of any settlement offer made to the person; and (ii) out-of-pocket expenses incurred by the person during the proceedings after the revocation of consent; and (b) the Director is liable to pay any amount awarded against the person in the proceedings. (1B) If the Director institutes, defends or continues proceedings on behalf of a person after the person revokes the consent to the institution, defence or continuation of the proceedings, any amount recovered by the Director in respect of the person in the proceedings (including any amount for costs) that exceeds the amount payable to the person under subsection (1A) may be applied to the payment of the costs of, and incidental to, the proceedings for which the Director is liable or that are incurred by the Director in relation to the proceedings. (2) If, in proceedings instituted, continued or defended on behalf of a person under section 105 (a) a party to the proceedings files a counterclaim; or (b) the person is entitled to file a counterclaim and the counterclaim is not or would not be related to the proceedings and to the interests of the person in the dispute, the Director may apply to the court or the Tribunal hearing the proceedings for an order that the counterclaim not be heard in the course of those proceedings.
S. 106(1B) inserted by No. 30/2003 s. 44(2), amended by No. 103/2004 s. 11(3)(a)(b).
S. 106(2) amended by No. 103/2004 s. 11(4).
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s. 106A
(3) If the court or the Tribunal makes an order under subsection (2), the court or the Tribunal may make those ancillary or consequential provisions (if any) that it thinks just.
Pt 8 Div. 2 (Heading and ss 106A, 106B) inserted by No. 30/2003 s. 45.
Division 2Suppliers
106A Substantiation of claims (1) The Director may, by notice in writing, require a person who publishes or causes to be published a statement promoting, or apparently intending to promote, the supply of goods or services, to provide to the Director, within the period specified in the notice, proof of any claim or representation made in the statement. (2) A person on whom a notice under this section is served, who (a) fails to provide proof sufficient to support the claim or representation; or (b) fails, without reasonable excuse, to provide that proof by the time specified in the notice; or (c) provides information which is false or misleading is guilty of an offence and liable to a penalty not exceeding (d) 600 penalty units, in the case of a natural person; or (e) 1200 penalty units, in the case of a body corporate.
178
s. 106B
106B Show cause notice (1) The Director may, by notice in writing, require a supplier to show cause why the supplier should be allowed to continue carrying on the business of supplying goods or services. (2) The Director may issue a notice under subsection (1) if the Director is of the opinion that there are reasonable grounds to believe that (a) the supplier has engaged in conduct that contravenes this Act or the regulations; and (b) it is likely that the supplier will continue to engage in that conduct; and (c) there is a danger that a person may suffer harm, loss or damage as a result of that conduct unless action is taken urgently. (3) A notice under subsection (1) must (a) be served (i) personally on a supplier who is a natural person; or (ii) at the registered office and the last known business address of a supplier that is a corporation; or (iii) at the last known business address of a supplier that is a body corporate, other than a corporation; (b) specify the conduct which the supplier is believed to have engaged in; (c) state the time period within which the supplier must respond to the notice, that time period being not less than 14 days from the date of service of the notice;
179
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(d) state what steps need to be taken by the supplier to respond to the notice; (e) state the consequences for the supplier of not responding to the notice. (4) Despite subsection (3)(a)(i), if, on the application of the Director, it appears to the Tribunal that service cannot be promptly effected on a supplier who is a natural person, the Tribunal may order that the notice be served (a) by sending it by post, facsimile or other electronic transmission to the supplier at his or her usual or last known residential or business address; or (b) by leaving it at the supplier's usual or last known residential or business address with a person on the premises who is apparently at least 16 years old and apparently residing or employed there. (5) If a supplier has not responded to a notice under this section in accordance with subsection (3) within the period specified in the notice, the supplier must, at the end of that period, cease to carry on a business of supplying goods or services to which the notice relates or any business of a like kind. Penalty: 600 penalty units, in the case of a natural person. 1200 penalty units, in the case of a body corporate. (6) A supplier to whom a notice under this section applies may apply to the Tribunal for a review of the decision to issue the notice.
180
s. 106C
(7) A supplier must not, in response to the notice, make a statement to the Director that is false or misleading in a material particular. Penalty: 600 penalty units, in the case of a natural person. 1200 penalty units, in the case of a body corporate. Division 3Licence suspension
Pt 8 Div. 3 (Heading and ss 106C 106H) inserted by No. 30/2003 s. 45.
106C Definitions In this Division licence means (a) a licence issued or granted under (i) the Conveyancers Act 2006; or (ia) the Estate Agents Act 1980; or (ii) the Motor Car Traders Act 1986; or (iii) the Prostitution Control Act 1994; or (iv) the Travel Agents Act 1986; or (b) a right to act as an agent's representative within the meaning of the Estate Agents Act 1980; or (c) a right to participate in a customer service capacity in the business of a motor car trader within the meaning of the Motor Car Traders Act 1986; or
S. 106C def. of licence amended by No. 75/2006 s. 192(Sch. 2 item 3.1).
181
s. 106D
(d) an approval under Division 5 of Part 3 of the Prostitution Control Act 1994; or (e) a registration granted under Part 4 of the Consumer Credit (Victoria) Act 1995; or (f) a right to engage in finance broking within the meaning of Part 4A of the Consumer Credit (Victoria) Act 1995; or (g) a right to act as an introduction agent within the meaning of the Introduction Agents Act 1997; or (h) a registration or endorsement of registration under the Second-Hand Dealers and Pawnbrokers Act 1989; licence suspension period in relation to a licence, means the period (a) commencing on the date of service of the notice in relation to the licence under section 106D; and (b) ending on (i) the lapsing of the suspension of the licence under section 106F; or (ii) the date of an order referred to in section 106F(2) relating to the suspension of the licence; licensee, in relation to a licence, means the person who is the holder of the licence.
106D Director may suspend licence (1) Despite anything to the contrary in a business licensing Act or any other Act or law other than this Division, the Director may suspend a licence by notice in writing issued to the licensee. 182
s. 106D
(2) The Director may only suspend a licence under this section if the Director has reasonable grounds to believe that (a) the licensee has engaged in conduct that under the relevant business licensing Act would constitute grounds for the initiation of disciplinary action against the licensee or the bringing of proceedings for an offence or for an injunction; and (b) it is likely that the licensee will continue to engage in that conduct; and (c) there is a danger that a person may suffer substantial harm, loss or damage as a result of that conduct unless action is taken urgently. (3) A notice under subsection (1) (a) must be served (i) personally on a licensee who is a natural person; or (ii) at the registered office and the last known business address of a licensee that is a corporation; or (iii) at the last known business address of a licensee that is a body corporate, other than a corporation; (b) must specify the conduct which the licensee is believed to have engaged in; (c) must state the rights of review open to the licensee; (d) has effect, whether or not the licensee has been afforded an opportunity to be heard on the matter.
183
s. 106E
(4) Despite subsection (3)(a)(i), if, on the application of the Director, it appears to the Tribunal that service cannot be promptly effected on a licensee who is a natural person, the Tribunal may order that the notice be served (a) by sending it by post, facsimile or other electronic transmission to the person at his or her usual or last known residential or business address; or (b) by leaving it at the person's usual or last known residential or business address with a person on the premises who is apparently at least 16 years old and apparently residing or employed there. (5) The suspension takes effect on the service of the notice.
106E Effect of suspension (1) This section applies despite anything to the contrary in a business licensing Act or any other Act or law other than this Division. (2) If a notice is issued under this Division suspending (a) an estate agent's licence under the Estate Agents Act 1980; or (b) a motor car trader's licence under the Motor Car Traders Act 1986; or (c) a licence within the meaning of the Prostitution Control Act 1994; or (d) a travel agent's licence under the Travel Agents Act 1986 the licence is deemed to be suspended for the purposes of that Act for the licence suspension period.
184
s. 106E
(3) If a notice is issued under this Division suspending a licensee's right to act as an agent's representative within the meaning of the Estate Agents Act 1980, the licensee is deemed to be ineligible to act as an agent's representative for the purposes of that Act for the licence suspension period. (4) If a notice is issued under this Division suspending a licensee's right to participate in a customer service capacity in the business of a motor car trader within the meaning of the Motor Car Traders Act 1986, the licensee is deemed, for the purposes of that Act, not to be permitted to be employed in a customer service capacity by a motor car trader for the licence suspension period. (5) If a notice is issued under this Division suspending an approval under Division 5 of Part 3 of the Prostitution Control Act 1994, the approval is deemed to be suspended for the purposes of that Act for the licence suspension period. (6) If a notice is issued under this Division suspending the registration of a licensee under Part 4 of the Consumer Credit (Victoria) Act 1995, the registration is deemed to be suspended for the purposes of that Part for the licence suspension period. (7) If a notice is issued under this Division suspending a licensee's right to engage in finance broking within the meaning of Part 4A of the Consumer Credit (Victoria) Act 1995, the licensee is deemed to be prohibited from engaging in finance broking for the purposes of that Act for the licence suspension period.
185
s. 106F
(8) If a notice is issued under this Division suspending a licensee's right to act as an introduction agent within the meaning of the Introduction Agents Act 1997, the licensee is deemed to be disqualified from acting as an introduction agent for the purposes of that Act for the licence suspension period. (9) If a notice is issued under this Division suspending the registration or endorsement of registration of a licensee under the Second-Hand Dealers and Pawnbrokers Act 1989, the registration or endorsement is deemed to be suspended for the purposes of that Act for the licence suspension period.
S. 106E(10) inserted by No. 75/2006 s. 192(Sch. 2 item 3.2).
(10) If a notice is issued under this Division suspending a licensee's licence under the Conveyancers Act 2006, the licensee is deemed for the purposes of that Act to be prohibited from doing either or both of the following during the licence suspension period (a) carrying on a conveyancing business; (b) undertaking conveyancing work as an employee of a conveyancing business.
S. 106F inserted by No. 30/2003 s. 45.
106F Lapsing or continuation of suspension (1) A suspension under this Division lapses if within the required period after the service of the notice (a) an application is not made to the Tribunal under a business licensing Act to inquire into the conduct of the licensee that is the subject of the notice; or (b) proceedings have not commenced in a court in relation to the conduct of the licensee that is the subject of the notice.
186
s. 106G
(2) If within the required period after the service of the notice (a) an application is made to the Tribunal under a business licensing Act to inquire into the conduct of the licensee that is the subject of the notice; or (b) proceedings are commenced in a court in relation to the conduct of the licensee that is the subject of the notice the suspension continues until a further order is made by the Tribunal or the court. (3) If a suspension lapses under this section after service of a notice, the Director must not serve another notice on the licensee under this Division for a period of 6 months from the date of service of the first notice. (4) The power conferred by this Division is in addition to and does not limit or displace a power conferred on the Director or any other person or body by or under a business licensing Act to suspend or cancel a licence or to take action against a licensee in respect of the conduct concerned. (5) In this section required period means (a) 14 days; or (b) if the Tribunal or a court makes an order under section 106G extending that period, that extended period. 106G Extension of period (1) The Director may apply to the Tribunal or the court within 14 days after the service of a notice under section 106D or, if an extension of that period has been granted under this section, before the end of the period of the extension, to extend the period within which an application must be 187
S. 106G inserted by No. 30/2003 s. 45.
s. 106H
made or proceedings commenced for the purposes of section 106F(1) and (2). (2) On an application under subsection (1), the Tribunal or court (a) must consider the likelihood that an application or proceedings referred to in section 106F(1) and (2) will be made or commenced; and (b) may make an order extending the period if in all the circumstances it considers it just and convenient to do so. (3) An extension may be for a period not exceeding 14 days. (4) The Tribunal or court may adjourn any application under this section to enable notice of the application to be given to any person.
S. 106H inserted by No. 30/2003 s. 45.
106H Right of review A licensee may apply to the Tribunal for a review of the decision to issue a notice under this Division. Division 4Obtaining information, documents and evidence
Pt 8 Div. 4 (Heading and ss 106I106P) inserted by No. 30/2003 s. 45. S. 106HA inserted by No. 103/2004 s. 12.
106HA Power to obtain information and documents to monitor compliance (1) The Director may, by notice in writing, require a person who the Director believes is capable of providing information or producing documents that may assist the Director in monitoring compliance with this Act or the regulations (a) to provide to the Director, by writing signed by that person or, in the case of a body corporate, by a competent officer of the body 188
s. 106HA
corporate, within the time and in the manner specified in the notice, that information; or (b) to produce to the Director, or to a person specified in the notice acting on the Director's behalf, in accordance with the notice, those documents; or (c) to appear before the Director at a time and place specified in the notice to give that information, either orally or in writing, and produce those documents. (2) A person must not (a) refuse or fail to comply with a notice under this section to the extent that the person is capable of complying with it; or (b) in purported compliance with a notice under this section, knowingly provide information or give evidence that is false or misleading; or (c) obstruct or hinder the Director in exercising a power under this section. Penalty: 20 penalty units. (3) Subject to subsection (4), a person is not excused from answering a question, providing information or producing or permitting the inspection of a document on the ground that the answer, information or document may tend to incriminate the person. (4) Despite subsection (3), the answer by a person to any question asked in a notice under this section or the provision by a person of any information or the production by any person of a document in compliance with a notice under this section, is not admissible in evidence against the person in any proceedings other than proceedings under this section.
189
s. 106I
(5) If any documents are produced to the Director under this section, the Director may make copies of or take extracts from the documents and retain possession of those copies and extracts. (6) Section 106J does not apply to documents produced under this section.
S. 106I inserted by No. 30/2003 s. 45.
106I Power to obtain information, documents and evidence (1) If the Director believes that a person is capable of providing information, producing documents or giving evidence relating to a matter that constitutes, or may constitute, a contravention of this Act, the Director may, by notice in writing, require that person (a) to provide to the Director, by writing signed by that person or, in the case of a body corporate, by a competent officer of the body corporate, within the time and in the manner specified in the notice, that information; or (b) to produce to the Director, or to a person specified in the notice acting on the Director's behalf, in accordance with the notice, those documents; or
S. 106I(1)(c) amended by No. 17/2007 s. 5(1).
(c) to appear before the Director, or a person specified in the notice acting on the Director's behalf, at a time and place specified in the notice to give that evidence, either orally or in writing, and produce those documents. (2) The Director or the person specified in the notice acting on the Director's behalf may require the evidence referred to in subsection (1)(c) to be given on oath or affirmation and for that purpose may administer an oath or affirmation.
S. 106I(2) amended by No. 17/2007 s. 5(2).
190
s. 106J
(3) A person must not (a) refuse or fail to comply with a notice under this section to the extent that the person is capable of complying with it; or (b) in purported compliance with a notice under this section, knowingly provide information or give evidence that is false or misleading; or (c) obstruct or hinder the Director in exercising a power under this section. Penalty: 60 penalty units. (4) Subject to subsection (5), a person is not excused from answering a question, providing information or producing or permitting the inspection of a document on the ground that the answer, information or document may tend to incriminate the person. (5) Despite subsection (4), the answer by a person to any question asked in a notice under this section or the provision by a person of any information in compliance with a notice under this section, is not admissible in evidence against the person (a) in the case of a person not being a body corporatein any criminal proceedings other than proceedings under this section; or (b) in the case of a body corporatein any criminal proceedings other than proceedings under this Act. 106J Powers in relation to documents If any documents are produced to the Director under this Division, the Director may (a) inspect the documents or authorise a person to inspect the documents;
S. 106J inserted by No. 30/2003 s. 45.
191
s. 106K
(b) make copies of or take extracts of the documents; (c) seize the documents if the Director (i) considers the documents necessary for obtaining evidence for the purpose of any proceedings against any person under this Act or the regulations; or (ii) considers the documents necessary for obtaining evidence for the purpose of any proceedings against any person under any other Consumer Act or the regulations under that Act; or (iii) believes on reasonable grounds that it is necessary to seize the documents to prevent their concealment, loss or destruction or their use in the contravention of any Consumer Act; (d) secure any seized documents against interference; (e) retain possession of the documents in accordance with this Division.
S. 106K inserted by No. 30/2003 s. 45.
106K Copies of seized documents (1) If the Director retains possession of a document seized from a person under this Division, the Director must give the person, within 21 days of the seizure, a copy of the document certified as correct by the Director. (2) A copy of a document certified under subsection (1) shall be received in all courts and tribunals to be evidence of equal validity to the original.
192
s. 106L
S. 106L inserted by No. 30/2003 s. 45.
106L Retention and return of seized documents (1) If the Director seizes a document under this Division, the Director must take reasonable steps to return the document to the person from whom it was seized if the reason for its seizure no longer exists. (2) If the document seized has not been returned within 3 months after it was seized, the Director must take reasonable steps to return it unless (a) proceedings for the purpose for which the document was retained have commenced within that 3 month period and those proceedings (including any appeal) have not been completed; or (b) the Magistrates' Court makes an order under section 106M extending the period during which the document may be retained. 106M Magistrates' Court may extend 3 month period (1) The Director may apply to the Magistrates' Court (a) within 3 months after seizing a document under this Division; or (b) if an extension has been granted under this section, before the end of the period of the extension for an extension (not exceeding 3 months) of the period for which the Director may retain the document but so that the total period of retention does not exceed 12 months. (2) The Magistrates' Court may order such an extension if it is satisfied that (a) it is in the interests of justice; and (b) the total period of retention does not exceed 12 months; and 193
S. 106M inserted by No. 30/2003 s. 45.
s. 106N
(c) retention of the document is necessary (i) for the purposes of an investigation into whether a contravention of this Act or the regulations has occurred; or (ii) to enable evidence of a contravention of this Act or the regulations to be obtained for the purposes of a proceeding under this Act. (3) The Magistrates' Court must consider the interests of the owner of the document or thing and may adjourn an application to enable notice of the application to be given to any person.
S. 106N inserted by No. 30/2003 s. 45.
106N Complaints (1) Any person may complain to the Secretary about the exercise of a power by the Director under this Division. (2) The Secretary must (a) investigate any complaint made to the Secretary; and (b) provide a written report to the complainant on the results of the investigation.
S. 106O inserted by No. 30/2003 s. 45.
106O Service of documents (1) A written requirement by the Director under this Division may be given personally or by registered post to a person (a) at the last known place of business, employment or residence of the person; or (b) in the case of a body corporate, at the registered office of the body corporate. (2) A person who provides a document or information in response to a requirement of the Director under this Division may send that document or information to the Director by registered post.
194
s. 106P
S. 106P inserted by No. 30/2003 s. 45.
106P Confidentiality (1) The Director must not, except to the extent necessary to carry out the Director's functions under this Act, give to any other person, whether directly or indirectly, any information acquired by the Director in carrying out those functions. Penalty: 60 penalty units. (2) Subsection (1) does not apply to the giving of information (a) to a court or tribunal in the course of legal proceedings; or (b) pursuant to an order of a court or tribunal; or (c) to the extent reasonably required to enable the investigation or the enforcement of a law of this State or of any other State or Territory or of the Commonwealth; or (ca) to an agency of the Commonwealth, to the extent reasonably required to bring into operation the National Consumer Credit Protection Act 2009 of the Commonwealth and the National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 of the Commonwealth; or (d) to the Business Licensing Authority established under the Business Licensing Authority Act 1998; or (e) with the written authority of the Secretary; or (f) with the written authority of the person to whom the information relates. _______________
S. 106P(2)(ca) inserted by No. 11/2010 s. 48.
195
s. 107
Fair Trading Act 1999 No. 16 of 1999 Part 9Functions of Tribunal
PART 9FUNCTIONS OF TRIBUNAL

S. 107 (Heading) inserted by No. 30/2003 s. 47(1). S. 107(1) amended by No. 30/2003 s. 46.
107 What is a consumer and trader dispute?
(1) In this Part a consumer and trader dispute is a dispute or claim arising between a purchaser or possible purchaser of goods or services and a supplier or possible supplier of goods or services in relation to a supply or possible supply of goods or services. (2) For the purposes of subsection (1), a dispute or claim includes any dispute or claim in negligence, nuisance or trespass that relates to the supply or possible supply of goods or services but (except as provided in subsection (3)) does not include a dispute or claim related to a personal injury. (3) For the purposes of subsection (1), a dispute or claim includes a claim related to personal injury if (a) the claim is for an amount not exceeding $10 000; and (b) the claim relates to a supply or possible supply of goods or services; and (c) the supply or possible supply of goods or services is the subject of a related consumer and trader dispute.
S. 107(2) amended by No. 30/2003 s. 47(2).
S. 107(3) inserted by No. 30/2003 s. 47(3).
107A What is a small claim? In this Part small claim means a consumer and trader dispute in relation to (a) a claim for payment of money in an amount not exceeding $10 000 or other prescribed amount; or
196
s. 108
(b) a claim for performance of work of a value not exceeding $10 000 or other prescribed amount that in either case arises out of a contract for the supply of goods or the provision of services other than a contract of life insurance. 108 Settlement of consumer and trader disputes or small claims
S. 108 (Heading) inserted by No. 30/2003 s. 49(1). S. 108(1) amended by No. 30/2003 s. 46. S. 108(2) amended by No. 30/2003 s. 46.
(1) The Tribunal may hear and determine a consumer and trader dispute. (2) The Tribunal may do one or more of the following in relation to a consumer and trader dispute (a) refer a dispute to a mediator appointed by the Tribunal; (b) order the payment of a sum of money (i) found to be owing by one party to another party; (ii) by way of damages (including exemplary damages and damages in the nature of interest); (iii) by way of restitution; (c) vary any term of a contract; (d) declare that a term of a contract is, or is not, void; (e) order the refund of any money paid under a contract or under a void contract; (f) make an order in the nature of an order for specific performance of a contract; (g) order rescission of a contract;
197
s. 109
S. 108(2)(h) amended by No. 30/2003 s. 49(2). S. 108(2)(i) inserted by No. 30/2003 s. 49(3).
(h) order rectification of a contract;
(i) declare that a debt is, or is not, owing;
S. 108(2)(j) inserted by No. 30/2003 s. 49(3). Example to s. 108(2) inserted by No. 30/2003 s. 49(3).
(j) order a party to do or refrain from doing something.

Example: If the supplier has default listed the purchaser with a credit reference agency in relation to a perceived debt owing, the Tribunal, in addition to declaring that there is no debt owing, may order the supplier to contact the credit reference agency and have the default listing removed from the purchaser's credit record.
(3) In awarding damages in the nature of interest, the Tribunal may base the amount awarded on the interest rate fixed from time to time under section 2 of the Penalty Interest Rates Act 1983 or on any lesser rate it thinks appropriate. 109 Additional powers of Tribunal (1) In addition to its powers under section 108, the Tribunal, in determining a consumer dispute or a trader-trader dispute, may make any order it considers fair including declaring void any unjust term of a contract or otherwise varying a contract to avoid injustice. (2) In determining whether a term of a contract is unjust under subsection (1), the Tribunal may have regard to (a) the intelligibility of the contract generally, and of the term in particular;
198
s. 109
(b) the extent to which the term, and its legal and practical effect, were accurately explained to the relevant party before the term was agreed to and the extent to which the relevant party understood the term and its effect; (c) the relative bargaining power of the parties to the contract; (d) the consequences to the parties to the contract if the term is complied with or not complied with and the relative hardship of those consequences to each party; (e) whether or not it was reasonably practicable for the relevant party to reject, or negotiate for a change in, the term before it was agreed to; (f) the relationship of the term to the other terms of the contract; (g) whether the relevant party obtained independent legal or other expert advice before agreeing to the term; (h) whether unfair pressure, undue influence or unfair tactics were used to obtain the relevant party's consent to the contract or the term; (i) whether at the time the term was agreed to the relevant party knew, or could probably have found out by asking, that the term would cause any other relevant party hardship; (j) the conduct of the parties to the contract after the term was agreed to; (k) whether the term is usually found in contracts of that kind; (l) the justification for the term;
199
s. 109
(m) whether the term is unconscionable, harsh or oppressive; (n) any other factor the Tribunal thinks is relevant. (3) Despite anything to the contrary in this section, in determining whether a term of a contract is unjust, the Tribunal is not to have regard to any injustice arising from circumstances that were not reasonably foreseeable when the term was agreed to. (4) In this section consumer dispute means a dispute relating to the supply or possible supply of goods or services of a kind ordinarily used for personal household or domestic purposes but does not include a dispute relating to the supply or possible supply of goods if the supply or the possible supply of the goods is for the purpose of re-supply, in trade or commerce, or for the purpose of using the goods up or transforming the goods in trade or commerce; trader-trader dispute means a dispute between a purchaser or possible purchaser and a supplier or possible supplier in relation to the supply or possible supply of goods or services in trade or commerce which involves (a) a claim for payment of money in an amount not exceeding $10 000; or (b) a claim for performance of work of a value not exceeding $10 000.
200
s. 110
S. 110 amended by No. 30/2003 s. 46.
110 Who can ask the Tribunal to resolve a consumer and trader dispute? The Tribunal may only make an order to resolve a consumer and trader dispute on the application of (a) a party to the dispute; or (b) the Director acting on behalf of one or more of the parties to the dispute. 111 Exclusion of other jurisdiction (1) Once an application has been made to the Tribunal in accordance with the Victorian Civil and Administrative Tribunal Act 1998 in respect of a consumer and trader dispute or in respect of any other matter in respect of which the Tribunal has jurisdiction under this Act, the issues in dispute are not justiciable at any time by a court unless (a) the proceeding in that court was commenced before the application to the Tribunal was made and that proceeding is still pending; or (b) the application to the Tribunal is withdrawn or struck out for want of jurisdiction; or (c) the Tribunal refers the proceeding to that court under section 77 of the Victorian Civil and Administrative Tribunal Act 1998. (2) Subsection (1) applies to all the issues in dispute, whether as shown in the application or emerging in the course of the proceeding in the Tribunal.
S. 111(1) amended by No. 30/2003 s. 46.
S. 111(1)(b) amended by No. 30/2003 s. 50(1). S. 111(1)(c) inserted by No. 30/2003 s. 50(2).
201
s. 112
112 More appropriate forum (1) This section applies if a person (a) commences proceedings in a court; and
S. 112(1)(b) amended by No. 30/2003 s. 46.
(b) the proceedings arise wholly or predominantly from a consumer and trader dispute or are other proceedings in respect of which the Tribunal has jurisdiction under this Act. (2) The court must stay the proceedings if (a) the proceedings could be heard by the Tribunal under this Act; and (b) the court is satisfied that the proceedings would be more appropriately dealt with by the Tribunal. (3) In determining whether proceedings would be more appropriately dealt with by the Tribunal, the court must consider (a) whether, having regard to the likely costs and duration of the proceedings and any other matters the court considers relevant, a party is reasonably likely to gain a material advantage if the proceedings are determined by the Tribunal; and (b) whether that advantage is outweighed by a material disadvantage that would be reasonably likely to be suffered by another party if the proceedings were determined by the Tribunal. (4) If proceedings are stayed under this section, any party to the proceedings may apply to the Tribunal for an order with respect to the dispute or matter on which the proceedings were based.
202
s. 112A
(5) If a person applies to the Tribunal under subsection (4) the Tribunal must notify the court and on such notification the court must dismiss the proceedings. (6) Subsection (5) does not apply if the Tribunal refers the matter to the court under section 77(3) of the Victorian Civil and Administrative Tribunal Act 1998. 112A Small claim commenced in a court (1) This section applies if a supplier, or person acting on behalf of the supplier (a) commences proceedings in a court; and (b) the proceedings arise wholly or predominantly from a small claim. (2) The court must dismiss the proceedings if (a) the court has not yet commenced to hear the matter; and (b) the purchaser has applied to the Tribunal to have the matter heard and determined by the Tribunal; and (c) the purchaser has lodged with the Tribunal (i) the whole of the amount sought by the supplier; or (ii) if any payment has been made to the supplier (including any deposit), the outstanding amount sought; and (d) the Tribunal has notified the court of that application to the Tribunal and lodgement.
203
s. 112B
112B Small Claims Suspense Account (1) The principal registrar of the Tribunal must keep an account called the Small Claims Suspense Account and pay into that account all money lodged with the Tribunal under section 112A(2). (2) The principal registrar must deal with money lodged with the Tribunal under section 112A(2) as follows (a) if the Tribunal makes an order with respect to the money, the principal registrar must comply with the order; (b) if the proceeding is struck out for want of jurisdiction or otherwise withdrawn, the principal registrar must (i) return the money to the person who paid the money or that person's personal or legal representative; or (ii) pay it in accordance with the directions of the person who paid the money or that person's personal or legal representative; (c) if the person who paid the money dies before a final order is made with respect to the matter, the principal registrar must pay the money to the personal or legal representative of the deceased person.
S. 113 amended by No. 30/2003 s. 46.
113 Tribunal may hear dispute regardless of related criminal proceedings If a consumer and trader dispute involves the failure, or the alleged failure, of a supplier to comply with this Act or any other Act (or any regulations made under this Act or any other Act), the Tribunal may make an order to resolve the dispute even though the supplier (a) has not been charged with the offence; or 204
s. 113A
(b) has been charged with the offence, but has not had the charge heard; or (c) has had the charge heard, but was not convicted of committing the offence; or (d) has had the charge heard and was convicted of committing the offence; or (e) has been sentenced in relation to the offence; or (f) is the subject of pending disciplinary action; or (g) may be, or has been, subject to disciplinary action. 113A Tribunal may order the provision of information (1) A person may apply to the Tribunal for an order requiring the Director to provide the full name and address of a supplier, who is not registered or licensed or whose details are not contained on any public register established under a business licensing Act or other Act. (2) The Tribunal may make the order referred to in subsection (1) if it is satisfied that, in all the circumstances, it is just and convenient to do so. _______________
205
s. 114
Fair Trading Act 1999 No. 16 of 1999 Part 10Inspection Powers
PART 10INSPECTION POWERS

S. 114 substituted by No. 103/2004 s. 13. S. 114(1)(a) amended by No. 108/2004 s. 117(1) (Sch. 3 item 74.2).
114 Appointment of inspectors (1) The Director may, by instrument, appoint as an inspector (a) any employee under Part 3 of the Public Administration Act 2004;
(b) any person who is appointed as an inspector, enforcement officer or authorised officer by or under any other Act; (c) any person who is appointed or authorised as an inspector, investigator, authorised officer or authorised person under an interstate Act. (2) An inspector appointed under subsection (1)(a) or (1)(b) may also be appointed or authorised under an interstate Act as an inspector, investigator, authorised officer or authorised person under that Act. (3) The Director must not appoint a person as an inspector under this section unless the Director is satisfied that the person is appropriately qualified or has successfully completed appropriate training. (4) In this section interstate Act means (a) Fair Trading (Consumer Affairs) Act 1973 of the Australian Capital Territory; (b) the Fair Trading Act 1987 of New South Wales; (c) the Consumer Affairs and Fair Trading Act of the Northern Territory; (d) the Fair Trading Act 1989 of Queensland; 206
s. 115
(e) the Fair Trading Act 1987 of South Australia; (f) the Consumer Affairs Act 1988 of Tasmania; (g) the Fair Trading Act 1987 of Western Australia; (h) a prescribed Act of a State (other than Victoria) or Territory. 115 Inspector's identity card (1) The Director must issue an identity card to each inspector. (2) An identity card must contain a photograph of the inspector to whom it is issued. 116 Production of identity card (1) An inspector must produce his or her identity card for inspection (a) before exercising a power under this Part other than a requirement made by post; and (b) at any time during the exercise of a power under this Part, if asked to do so. Penalty: 10 penalty units. (2) This section does not apply to the exercise of a power under section 120. 117 Inspector may seek Court order (1) If an inspector believes, on reasonable grounds, that a person or persons may have contravened this Act or the regulations, the inspector, with the written approval of the Director, may apply to the Magistrates' Court for an order requiring any person at a time and place specified by an inspector
207
s. 117
(a) to answer orally or in writing any questions put by an inspector in relation to the alleged contravention; (b) to supply orally or in writing information required by an inspector in relation to the alleged contravention; (c) to produce to an inspector specified documents or documents of a specified class relating to the alleged contravention. (2) If the Magistrates' Court is satisfied on the basis of evidence presented by the inspector that there are reasonable grounds to believe that a person or persons may have contravened this Act or the regulations, the Court may grant the order sought. (3) An order under this section must state a day, not later than 28 days after the making of the order, on which the order ceases to have effect. (4) If any documents are produced to an inspector under an order made under this section the inspector may (a) inspect the documents or authorise a person to inspect the documents; (b) make copies of or take extracts of the documents;
S. 117(4)(c) amended by No. 35/2000 s. 40(3).
(c) seize the documents if the inspector considers the documents necessary for the purpose of obtaining evidence for the purpose of any proceedings against any person under this Act or the regulations or any other Consumer Act or the regulations under that Act; (d) secure any seized documents against interference; (e) retain possession of the documents in accordance with this Part. 208
s. 118
(5) An inspector who executes an order under this section must as soon as practicable after that execution notify the Magistrates' Court in writing of (a) the time and place of execution; and (b) the documents or classes of documents seized; and (c) if documents were seized under subsection (4)(c) in respect of a contravention other than a contravention for which the order was granted, the contravention in respect of which the documents were seized. (6) The Magistrates' Court may direct the inspector to bring before the Court a document to which subsection (5)(c) applies so that the matter may be dealt with according to law. (7) The Magistrates' Court may direct that a document brought before it under subsection (6) be returned to its owner, subject to any condition the Court thinks fit, if in the opinion of the Court it can be returned consistently with the interests of justice. 118 Requirement to produce information
S. 118 (Heading) inserted by No. 106/2003 s. 15(1). S. 118(1) amended by No. 30/2003 s. 53.
(1) For the purpose of monitoring compliance with this Act or the regulations, the Director or an inspector may require a person who is the publisher of a publication to produce to the Director or an inspector, in the form in which it is retained by the publisher, specified information which
209
s. 119
S. 118(1)(a) inserted by No. 30/2003 s. 53. S. 118(1)(b) inserted by No. 30/2003 s. 53.
(a) is required by this Act or the regulations to be kept by the publisher; or (b) has been published by the publisher.
(1A) For the purpose of monitoring compliance with section 67D, the Director or an inspector may require a supplier to produce to the Director or an inspector the record of a purchaser's consent kept by the supplier under that section. (2) An inspector can only require production of information under this section with the written consent of the Director. 119 Entry or search with consent (1) If an inspector believes, on reasonable grounds, that a person has contravened this Act or the regulations, the inspector, with the consent of the occupier of the premises, may (a) enter and search any premises; (b) seize anything found on the premises which the inspector believes on reasonable grounds, to be connected with the alleged contravention; (c) examine and take and keep samples of any goods found on the premises which the inspector believes on reasonable grounds to be connected with the alleged contravention;
S. 118(2) amended by No. 106/2003 s. 15(3).
S. 119(1)(d) substituted by No. 79/2006 s. 64.
(d) in the case of any document on the premises, if the inspector believes, on reasonable grounds, that it is connected with the alleged contravention, the inspector may do all or any of the following
210
s. 119
(i) require the document to be produced for examination; (ii) examine, make copies or take extracts from the document, or arrange for the making of copies or the taking of extracts to be done on the premises or elsewhere; (iii) remove the document for so long as is reasonably necessary to make copies or take extracts from the document; (e) make any still or moving image or audiovisual recording that the inspector believes, on reasonable grounds, is necessary for the purpose of establishing the alleged contravention. (2) An inspector must not enter and search any premises with the consent of the occupier unless, before the occupier consents to that entry, the inspector has (a) produced his or her identity card for inspection; and (b) informed the occupier (i) of the purpose of the search; and (ii) that the occupier may refuse to give consent to the entry and search or to the seizure of anything found during the search; and (iii) that the occupier may refuse to consent to the taking of any sample of goods or any copy or extract from a document found on the premises during the search; and
S. 119(1)(e) inserted by No. 79/2006 s. 64.
211
s. 119
(iv) that anything seized or taken during the search with the consent of the occupier may be used in evidence in proceedings.
S. 119(3) amended by No. 106/2003 s. 16(1).
(3) If an occupier consents to an entry and search, the inspector who requested consent must before entering the premises ask the occupier to sign an acknowledgment stating (a) that the occupier has been informed of the purpose of the search and that anything seized or taken in the search with the consent of the occupier may be used in evidence in proceedings; and
S. 119(3)(b) amended by No. 106/2003 s. 16(2).
(b) that the occupier has been informed that he or she may refuse to give consent to the entry and search or to the seizure of anything or to the taking of any sample, copy or extract; and (c) that the occupier has consented to such an entry and search; and (d) the date and time that the occupier consented. (4) If an occupier consents to the seizure or taking of any thing during a search under this section, the inspector must before seizing or taking the thing ask the occupier to sign an acknowledgment stating (a) that the occupier has consented to the seizure or taking of the thing; and (b) the date and time that the occupier consented. (5) An occupier who signs an acknowledgment must be given a copy of the signed acknowledgment before the inspector leaves the premises.
212
s. 120
(6) If, in any proceeding, an acknowledgment is not produced to the court or a tribunal, it must be presumed, until the contrary is proved, that the occupier did not consent to the entry and search or to the seizure or the taking of the thing. 120 Entry of premises open to the public An inspector may do either or both of the following (a) enter and inspect any part of a premises which is, at the time of the entry and inspection, open to the public; (b) purchase goods or services at such a premises at such a time and at such a price at which it is available to the public to purchase. 121 Emergency entry (1) If an inspector believes, on reasonable grounds, that there is evidence on premises of goods being supplied from the premises which are dangerous if used or which are being supplied in contravention of an interim ban order, a fixed term ban order or a permanent ban order, the inspector may (with the assistance, if necessary, of another inspector or a member of the police force) enter and search the premises at any time. (2) If an inspector finds goods referred to in subsection (1) on the premises during a search under that subsection and the inspector is satisfied that the goods present a threat of imminent injury or death, the inspector may do all or any of the following (a) seize the goods;
S. 121(1) amended by No. 30/2003 s. 54.
213
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(b) secure the seized goods against interference; (c) require the occupier to remove the goods; (d) examine and take and keep samples of the goods;
S. 121(2)(e) substituted by No. 79/2006 s. 65.
(e) in the case of any document on the premises, if the inspector believes on reasonable grounds that it is necessary to do so, the inspector may do all or any of the following (i) require the document to be produced for examination; (ii) examine, make copies or take extracts from the document, or arrange for the making of copies or the taking of extracts to be done on the premises or elsewhere; (iii) remove the document for so long as is reasonably necessary to make copies or take extracts from the document;
S. 121(2)(f) inserted by No. 79/2006 s. 65.
(f) make any still or moving image or audiovisual recording if the inspector believes, on reasonable grounds, that it is necessary to do so. (3) If an inspector finds any goods referred to in subsection (1) on the premises during a search under that subsection (not being goods to which subsection (2) applies), the inspector may by notice (a) given to the occupier of the premises or the person who has or may reasonably be presumed to have control over the business conducted on the premises; or
214
s. 121
(b) affixed to the goods prohibit the removal of the goods from the premises. (3A) Section 126B extends and applies to a notice given under subsection (3) (with any necessary modifications) as if (a) a reference to an embargo notice were a reference to a notice under subsection (3); and (b) a reference to section 126(2) were a reference to subsection (6). (4) A notice under subsection (3) ceases to have effect at the end of 72 hours after the notice is given or affixed under that subsection, whichever is the earlier. (5) If an inspector exercises a power of entry under this section without the owner or occupier being present the inspector must, on leaving the premises, leave a notice setting out (a) the time of entry; and (b) the purpose of entry; and (c) a description of all things done while on the premises; and (d) the time of departure; and (e) the procedure for contacting the Director for further details of the entry. (6) A person must not remove goods from premises in contravention of a notice under this section. Penalty: 60 penalty units.
215
s. 121A
121A Entry without consent or warrant (1) For the purpose of monitoring compliance with this Act or the regulations or an order made by a court or tribunal under this Act or the regulations, an inspector may, subject to subsection (2) (a) enter and search any premises at which the inspector believes, on reasonable grounds (i) a person is conducting a business or supplying goods or services; or (ii) a person is keeping a record or document that is required to be kept by this Act or the regulations or that may show whether or not this Act or the regulations are being complied with; (b) examine anything found on the premises; (c) take and keep samples of anything found on the premises if the inspector believes, on reasonable grounds, that it is connected with a contravention of this Act or the regulations; (d) seize anything found on the premises or secure anything found on the premises against interference, if the inspector believes, on reasonable grounds, that it is connected with a contravention of this Act or the regulations; (e) examine and test any equipment found on the premises that is of a kind used in connection with the supply of goods or services; (f) in the case of any document on the premises, do all or any of the following (i) require the document to be produced for examination;
216
s. 121A
(ii) examine, make copies or take extracts from the document, or arrange for the making of copies or the taking of extracts to be done on the premises or elsewhere; (iii) remove the document for so long as is reasonably necessary to make copies or take extracts from the document; (g) make any still or moving image or audiovisual recording; (h) bring any equipment onto the premises that the inspector believes, on reasonable grounds, is necessary for the examination or processing of things (including documents) found at the premises in order to determine whether they are things that may be seized under this section. (2) An inspector (a) must not exercise a power under subsection (1) in any part of the premises that is used for residential purposes; and (b) must not exercise a power under subsection (1), except between the hours of 9 a.m. to 5 p.m., or when the premises are open for business. (3) If an inspector exercises a power of entry under this section without the owner or occupier being present the inspector must, on leaving the premises, leave a notice setting out (a) the time of entry; and (b) the purpose of entry; and
217
s. 122
(c) a description of things done while on the premises; and (d) the time of departure; and (e) the procedure for contacting the Director for further details of the entry. 122 Search warrants (1) An inspector, with the written approval of the Director, may apply to a magistrate for the issue of a search warrant in relation to particular premises, if the inspector believes on reasonable grounds that there is on the premises evidence that a person or persons may have contravened this Act or the regulations. (2) If a magistrate is satisfied, by the evidence, on oath or by affidavit, of the inspector that there are reasonable grounds to believe that there is a thing or things of a particular kind connected with a contravention of this Act or the regulations on any premises, the magistrate may issue a search warrant, in accordance with the Magistrates' Court Act 1989, authorising an inspector named in the warrant, together with any other person or persons named or otherwise identified in the warrant and with any necessary equipment (a) to enter the premises specified in the warrant, if necessary by force; and
S. 122(2)(b) amended by No. 79/2006 s. 67(a)(iii).
(b) to do all or any of the following (i) search for; (ii) seize; (iii) secure against interference;
218
s. 122
S. 122(2)(b)(iv) amended by No. 79/2006 s. 67(a)(i).
(iv) examine, inspect and take and keep samples of * * * * *
S. 122(2)(b)(v) repealed by No. 79/2006 s. 67(a)(ii).
a thing or things of a particular kind named or described in the warrant and which the inspector believes, on reasonable grounds, to be connected with the alleged contravention; and (c) in the case of any document of a particular kind, named or described in the warrant, if the inspector believes, on reasonable grounds, that it is connected with the alleged contravention, the inspector may do all or any of the following (i) require the document to be produced for inspection; (ii) examine, make copies or take extracts from the document, or arrange for the making of copies or the taking of extracts to be done on the premises or elsewhere; (iii) remove the document for so long as is reasonably necessary to make copies or take extracts from the document; and (d) make any still or moving image or audiovisual recording of anything of a particular kind, named or described in the warrant, that the inspector believes, on reasonable grounds, to be connected with the alleged contravention.
S. 122(2)(d) inserted by No. 79/2006 s. 67(b). S. 122(2)(c) inserted by No. 79/2006 s. 67(b).
219
s. 123
(3) A search warrant issued under this section must state (a) the purpose for which the search is required and the nature of the alleged contravention; and (b) any conditions to which the warrant is subject; and (c) whether entry is authorised to be made at any time of the day or night or during stated hours of the day or night; and (d) a day, not later than 28 days after the issue of the warrant, on which the warrant ceases to have effect. (4) Except as provided by this Act, the rules to be observed with respect to search warrants under the Magistrates' Court Act 1989 extend and apply to warrants under this section. 123 Announcement before entry (1) On executing a search warrant, the inspector executing the warrant (a) must announce that he or she is authorised by the warrant to enter the premises; and (b) if the inspector has been unable to obtain unforced entry, must give any person at the premises an opportunity to allow entry to the premises. (2) An inspector need not comply with subsection (1) if he or she believes, on reasonable grounds that immediate entry to the premises is required to ensure (a) the safety of any person; or (b) that the effective execution of the search warrant is not frustrated.
220
s. 124
124 Details of warrant to be given to occupier (1) If the occupier is present at premises where a search warrant is being executed, the inspector must (a) identify himself or herself to the occupier; and (b) give to the occupier a copy of the warrant. (2) If the occupier is not present at premises where a search warrant is being executed, the inspector must (a) identify himself or herself to a person at the premises; and (b) give to the person a copy of the warrant. 125 Seizure of things not mentioned in the warrant A search warrant under section 122 authorises an inspector executing the search warrant, in addition to the seizure of any thing of the kind described in the warrant, to seize or take a sample of any thing which is not of the kind described in the warrant if (a) the inspector believes, on reasonable grounds, that the thing (i) is of a kind which could have been included in a search warrant issued under this Part; or (ii) will afford evidence about the contravention of any Consumer Act; and (b) in the case of seizure, the inspector believes, on reasonable grounds, that it is necessary to seize that thing in order to prevent its concealment, loss or destruction or its use in the contravention of this Act or any other Consumer Act. 221
S. 125(a)(ii) amended by No. 35/2000 s. 40(3). S. 125(b) amended by No. 35/2000 s. 40(3).
s. 126
126 Embargo notice (1) An inspector executing a search warrant who is authorised by that warrant to seize any thing may, if the thing cannot, or cannot readily, be physically seized and removed, issue an embargo notice in the prescribed form (a) by causing a copy of the notice to be served on the occupier; or (b) if that person cannot be located after all reasonable steps have been taken to do so, by affixing a copy of the notice to the thing in a prominent position.
S. 126(2) amended by No. 17/2007 s. 7.
(2) A person who knows that an embargo notice relates to a thing and who (a) sells; or (b) leases; or (c) without the written consent of the inspector who issued the embargo notice, moves; or (d) transfers; or (e) otherwise deals with the thing or any part of the thing is guilty of an offence and liable to a penalty not exceeding 60 penalty units.
S. 126(3) amended by No. 68/2009 s. 97(Sch. item 56.4).
(3) It is a defence to a prosecution for an offence against subsection (2) to prove that the accused moved the thing or the part of the thing for the purpose of protecting and preserving it. (4) Despite anything in any other Act, a sale, lease, transfer or other dealing with a thing in contravention of this section is void.
222
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126A Use or seizure of electronic equipment at premises (1) If (a) while acting under section 121A, an inspector finds a thing at the premises that is or includes a disk, tape or other device for the storage of information; and (b) there is at the premises equipment that may be used with the disk, tape or other storage device; and (c) the inspector believes, on reasonable grounds, that information stored in the disk, tape or other storage device may be relevant to determine whether this Act or the regulations have been complied with the inspector may operate, or may require the occupier of the premises or an employee of the occupier to operate, the equipment to access the information. (2) If the inspector finds that a disk, tape or other storage device at the premises contains information that the inspector believes, on reasonable grounds, stores information that is relevant to determine whether this Act or the regulations have been complied with, the inspector may (a) put the information in a documentary form and seize the documents so produced; or (b) copy the information to another disk, tape or other storage device and remove that disk, tape or storage device from the premises; or (c) if it is not practicable to put the information in a documentary form nor to copy the information, seize the disk, tape or other storage device and the equipment that enables the information to be accessed.
223
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(3) An inspector must not operate or seize equipment for a purpose set out in this section unless the inspector believes, on reasonable grounds, that the operation can be carried out without damage to the equipment.
126B Monitoring compliance with embargo notices (1) For the purpose of monitoring compliance with section 126(2), an inspector, with the written approval of the Director, may apply to the Magistrates' Court for (a) an order requiring the owner of the thing to which an embargo notice under section 126 relates, or the occupier of the premises where the thing is kept or required under the notice to be kept, to answer questions or produce documents at a time and place specified by the inspector; and (b) any other order incidental to or necessary for monitoring compliance with section 126(2). (2) The Magistrates' Court may make the order sought under subsection (1). (3) If a thing is subject to an embargo notice under section 126, for the purpose of monitoring compliance with any one or more of the following (a) section 126(2); (b) a prescribed safety standard; (c) an interim ban order; (d) a permanent ban order; (e) a fixed term ban order in relation to the thing, an inspector, with the written approval of the Director, may apply to a magistrate for the issue of a search warrant
224
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permitting entry to the premises where the thing is kept or required to be kept. (4) If the magistrate is satisfied by evidence, on oath or by affidavit, of the inspector that it is necessary to do so for the effective monitoring of compliance with any one or more of the following (a) section 126(2); (b) a prescribed safety standard; (c) an interim ban order; (d) a permanent ban order; (e) a fixed term ban order the magistrate may issue a search warrant, in accordance with the Magistrates' Court Act 1989. (5) The warrant may authorise the inspector, together with any other person or persons named or otherwise identified in the warrant and with any necessary equipment, to enter the premises specified in the warrant, if necessary by force, and (a) to search for, seize and secure against interference the thing named in the warrant; or (b) to test the thing named in the warrant to determine whether it complies with a prescribed safety standard; or (c) to test the thing named in the warrant to determine whether any of the following is being complied with (i) an interim ban order; (ii) a permanent ban order; (iii) a fixed term ban order; or 225
s. 127
(d) to do any combination of the activities referred to in paragraphs (a), (b) and (c). (6) Sections 123 and 124 extend and apply to a search warrant issued under subsection (4). 127 Copies of seized documents (1) If an inspector retains possession of a document seized from a person under this Part, the inspector must give the person, within 21 days of the seizure, a copy of the document certified as correct by the inspector. (2) A copy of a document certified under subsection (1) shall be received in all courts and tribunals to be evidence of equal validity to the original. 128 Retention and return of seized documents or things (1) If an inspector seizes a document or other thing under this Part, the inspector must take reasonable steps to return the document or thing to the person from whom it was seized if the reason for its seizure no longer exists. (2) If the document or thing seized has not been returned within 3 months after it was seized, the inspector must take reasonable steps to return it unless (a) proceedings for the purpose for which the document or thing was retained have commenced within that 3 month period and those proceedings (including any appeal) have not been completed; or
S. 128(2)(b) amended by No. 103/2004 s. 14.
(b) the Magistrates' Court makes an order under section 129 extending the period during which the document or thing may be retained; or (c) a court makes an order under section 129A permitting the destruction of the thing.
S. 128(2)(c) inserted by No. 103/2004 s. 14.
226
s. 129
(3) This section does not apply to a sample taken by an inspector in the exercise of a power under this Part. 129 Magistrates' Court may extend 3 month period (1) An inspector may apply to the Magistrates' Court (a) within 3 months after seizing a document or other thing under this Part; or (b) if an extension has been granted under this section, before the end of the period of the extension for an extension (not exceeding 3 months) of the period for which the inspector may retain the document or thing but so that the total period of retention does not exceed 12 months. (2) The Magistrates' Court may order such an extension if it is satisfied that (a) it is in the interests of justice; and (b) the total period of retention does not exceed 12 months; and (c) retention of the document or other thing is necessary (i) for the purposes of an investigation into whether a contravention of this Act or the regulations has occurred; or (ii) to enable evidence of a contravention of this Act or the regulations to be obtained for the purposes of a proceeding under this Act. (3) At least 7 days prior to the hearing of an application under this section, notice of the application must be sent to the owner of the document or thing described in the application.
227
s. 129A
S. 129A inserted by No. 103/2004 s. 15. S. 129A(1) amended by No. 17/2007 s. 9(1).
129A Court may order destruction of dangerous goods
(1) If an inspector seizes goods under this Part that are of a kind to which a prescribed safety standard applies or in relation to which there is in force an interim ban order, a fixed term ban order or a permanent ban order, the Director may apply to a court for an order permitting destruction of the goods. (2) On an application under subsection (1), the court may (a) make an order permitting the destruction of the goods, if it is satisfied that it is appropriate to do so; and (b) make any other order that it considers to be appropriate, including (i) an order relating to the payment by the owner of the goods of the costs of, and any costs incidental to, the destruction of the goods; or (ii) an order under subsection (2A).
S. 129A(2) substituted by No. 17/2007 s. 9(2).
S. 129A(2A) inserted by No. 17/2007 s. 9(2).
(2A) If the court is satisfied that the owner of the goods cannot be found after all reasonable attempts have been made, it may make an order relating to the payment by the supplier of the goods of the costs of, and any costs incidental to, the destruction of the goods. (3) At least 7 days prior to the hearing of an application under this section, notice of the application must be sent to the owner of the goods described in the application or to the person from whom the goods described in the application were seized.
S. 129A(3) inserted by No. 17/2007 s. 9(3).
228
s. 130
130 Taking samples (1) If an inspector proposes to take a sample in exercise of a power under this Part, the inspector must advise the person in possession of the sample of the reason why the sample is being taken. (2) The inspector, at the request of the person from whom the sample was taken, must give part of the sample taken to that person. (3) If an inspector takes a sample in the exercise of a power under this Part, the inspector must return the sample to the person from whom it was taken within 28 days, if the sample is not required for the purposes of proceedings under this Act or the regulations or any other Consumer Act or the regulations under that Act. 131 Requirement to assist inspector during entry To the extent that it is reasonably necessary to determine compliance with this Act or the regulations, an inspector exercising a power of entry under this Part who produces his or her identity card for inspection by the occupier of the premises or an agent or employee of the occupier may require that person (a) to give information to the inspector, orally or in writing; and (b) to produce documents to the inspector; and (c) to give reasonable assistance to the inspector. 132 Refusal or failure to comply with requirement A person must not, without reasonable excuse, refuse or fail to comply with a requirement of the Director or an inspector under this Part. Penalty: 60 penalty units.
S. 130(3) amended by No. 35/2000 s. 40(3).
229
s. 133
133 Protection against self-incrimination (1) It is a reasonable excuse for a natural person to refuse or fail to give information or do any other thing that the person is required to do by or under this Part, if the giving of the information or the doing of that other thing would tend to incriminate the person. (2) Despite subsection (1), it is not a reasonable excuse for a natural person to refuse or fail to produce a document that the person is required to produce by or under this Part, if the production of the document would tend to incriminate the person. 134 Offence to give false or misleading information A person must not (a) give information to an inspector under this Part that the person believes to be false or misleading in any material particular; or (b) produce a document to an inspector under this Part that the person knows to be false or misleading in a material particular without indicating the respect in which it is false or misleading and, if practicable, providing correct information. Penalty: 60 penalty units. 135 Offence to hinder or obstruct inspector A person must not, without reasonable excuse, hinder or obstruct an inspector who is exercising a power under this Part. Penalty: 60 penalty units.
230
s. 136
136 Offence to impersonate inspector A person who is not an inspector must not, in any way, hold himself or herself out to be an inspector. Penalty: 60 penalty units. 137 Entry to be reported to the Director (1) If an inspector exercises a power of entry under this Part, the inspector must report the exercise of the power to the Director within 7 days after the entry. (2) The report must include all relevant details of the entry including particulars of (a) the time and place of the entry; and (b) the purpose of the entry; and (c) the things done while on the premises, including details of things seized, samples taken, copies made and extracts taken; and (d) the time of departure from the premises. 138 Register of exercise of powers of entry The Director must keep a register containing the particulars of all matters reported to the Director under section 137. 139 Complaints (1) Any person may complain to the Director about the exercise of a power by an inspector under this Part. (2) The Director must (a) investigate any complaint made to the Director; and (b) provide a written report to the complainant on the results of the investigation.
231
s. 140
140 Service of documents (1) A written requirement by an inspector under this Part may be given personally or by registered post to a person (a) at the last known place of business, employment or residence of the person; or (b) in the case of a body corporate, at the registered office of the body corporate.
S. 140(2) amended by No. 35/2000 s. 40(4).
(2) A person who provides a document or information in response to a requirement of an inspector under this Part may send that document or information to the Director by registered post. 141 Confidentiality (1) An inspector must not, except to the extent necessary to carry out the inspector's functions under this Part, give to any other person, whether directly or indirectly, any information acquired by the inspector in carrying out those functions. Penalty: 60 penalty units. (2) Subsection (1) does not apply to the giving of information (a) to a court or tribunal in the course of legal proceedings; or (b) pursuant to an order of a court or tribunal; or (c) to the extent reasonably required to enable the investigation or the enforcement of a law of this State or of any other State or Territory or of the Commonwealth; or (d) to the Business Licensing Authority established under the Business Licensing Authority Act 1998; or
232
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(e) with the written authority of the Director; or (f) with the written authority of the person to whom the information relates. _______________
233
s. 142
Fair Trading Act 1999 No. 16 of 1999 Part 11Enforcement and Remedies
PART 11ENFORCEMENT AND REMEDIES
Division 1General enforcement provisions

S. 142 amended by No. 68/2009 s. 97(Sch. item 56.5).
142 Prosecutions of offences Despite section 7 of the Criminal Procedure Act 2009 a prosecution for an offence under this Act may be commenced not more than 3 years after the commission of the offence. 142A Who can bring proceedings for offences? (1) Proceedings for an offence against this Act or the regulations under this Act or a Consumer Act or the regulations under that Act may only be brought by (a) the Director; or (b) a person authorised by the Director for the purposes of this section. (2) In proceedings for an offence against this Act or the regulations under this Act or a Consumer Act or the regulations under that Act it must be presumed, in the absence of evidence to the contrary, that the person bringing the proceedings was authorised to bring the proceedings. (3) This section does not apply to proceedings for an indictable offence. (4) Subsection (1) does not apply to a Consumer Act or the regulations under a Consumer Act if express provision is made in that Act specifying who may bring proceedings for offences against that Act or the regulations under that Act.
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s. 143
143 Offences by bodies corporate (1) If a body corporate contravenes any provision of this Act, each officer of the body corporate is deemed to have contravened the same provision if the officer knowingly authorised or permitted the contravention. (2) A person may be proceeded against and convicted under a provision in accordance with subsection (1) whether or not the body corporate has been proceeded against under that provision. (3) Nothing in this section affects any liability imposed on a body corporate for an offence committed by the body corporate against this Act. 144 Conduct by officers, employees or agents (1) If, in any proceedings under this Act, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to show (a) that the conduct was engaged in by an officer of that body corporate within the scope of the officer's actual or apparent authority and the officer had that state of mind; or (b) that the conduct was engaged in by an agent of the body corporate and (i) the agent acted at the specific direction or with the specific consent or agreement of the body corporate; and (ii) the agent had that state of mind; and (iii) the body corporate was aware of the agent's state of mind when the conduct was engaged in.
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s. 144
(2) For the purposes of any proceedings under this Act, any conduct engaged in on behalf of a body corporate is deemed to have been engaged in also by the body corporate if the conduct was engaged in by (a) an officer of the body corporate within the scope of the officer's actual or apparent authority; or (b) any other person at the specific direction or with the specific consent or agreement of an officer of the body corporate, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the officer. (3) If, in any proceedings under this Act, it is necessary to establish the state of mind of a person other than a body corporate in relation to particular conduct, it is sufficient to show (a) that the conduct was engaged in by an employee of that person within the scope of the employee's actual or apparent authority and the employee had that state of mind; or (b) that the conduct was engaged in by an agent of the person and (i) the agent acted at the specific direction or with the specific consent or agreement of the person; and (ii) the agent had that state of mind; and (iii) the person was aware of the agent's state of mind when the conduct was engaged in.
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s. 145
(4) For the purposes of any proceedings under this Act, any conduct engaged in on behalf of a person other than body corporate (the principal) is deemed to have been engaged in also by the principal if the conduct was engaged in by (a) an employee of the principal within the scope of the employee's actual or apparent authority; or (b) any other person at the specific direction or with the specific consent or agreement of an employee of the principal, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the employee. (5) A reference in this section to the state of mind of a person includes a reference to the knowledge, intention, opinion, belief or purpose of the person and the person's reasons for the intention, opinion, belief or purpose. * * * * *
S. 145 repealed by No. 30/2003 s. 57.
Division 2Remedies and legal proceedings 145 Interpretation A reference in this Division to a person involved in a contravention of this Act means a reference to a person who (a) has aided, abetted, counselled or procured the contravention; (b) has induced, whether by threats or promises or otherwise, the contravention;
New s. 145 inserted by No. 30/2003 s. 58.
237
s. 146
(c) has been in any way, directly or indirectly, knowingly concerned in or party to, the contravention; (d) has conspired with others to effect the contravention. 146 Undertakings (1) The Director may accept a written undertaking given by a person in connection with (a) a matter in relation to which the Director has a power or function under this Act; or
S. 146(1)(b) amended by No. 35/2000 s. 40(3).
(b) a matter relating to a contravention of any other Consumer Act. (2) The person may withdraw or vary an undertaking at any time, if the person has first obtained the consent of the Director.
(2A) The Director, with the consent of the person who gave an undertaking, may apply, at any time, to the Magistrates' Court for an order directing the person to comply with the undertaking. (2B) On an application under subsection (2A), the Magistrates' Court may by order direct the person who gave the undertaking to comply with the undertaking. (3) If the Director considers that the person who gave the undertaking has breached any of its terms, the Director may apply to the Magistrates' Court for an order under subsection (4). (4) If the Magistrates' Court is satisfied that the person has breached a term of the undertaking, the Magistrates' Court may make all or any of the following orders
S. 146(2B) inserted by No. 103/2004 s. 17.
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s. 147
(a) an order directing the person to comply with that term of the undertaking; (b) an order directing the person to pay to the State an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach; (c) any order that the Magistrates' Court considers appropriate directing the person to compensate any other person who has suffered loss, injury or damage as a result of the breach; (d) any other order that the Magistrates' Court considers appropriate. (5) If a body corporate is found to have breached an undertaking, each officer of the body corporate is deemed to have so breached the undertaking if the officer knowingly authorised or permitted the breach and the Magistrates' Court may, against the officer, make all or any of the orders set out in subsection (4) that the Magistrates' Court thinks appropriate. 147 Copy of undertaking The Director must give a copy of an undertaking under section 146 to the person who made the undertaking. 148 Register of undertakings (1) The Director must (a) maintain a register of undertakings; and (b) register each undertaking in the register of undertakings.
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(2) The register of undertakings must include the following (a) the name and address of the person who gave the undertaking; (b) the date of the undertaking; (c) a copy of the undertaking. (3) The register of undertakings may be inspected by any person at any reasonable time, without charge.
149 Injunctions to restrain conduct
(1) The Minister, Director or any other person may apply to the Supreme Court, County Court or Magistrates' Court for the grant of an injunction restraining a person from engaging in conduct that constitutes (a) a contravention of any provision of this Act; or (b) attempting or conspiring to contravene such a provision; or (c) aiding, abetting, counselling or procuring a person to contravene such a provision; or (d) inducing or attempting to induce a person, whether by threats, promises or otherwise, to contravene such a provision; or (e) being in any way directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision.
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s. 149A
S. 149(2) amended by No. 103/2004 s. 18(3).
(2) The Court may grant an injunction restraining a person from engaging in conduct of the kind referred to in paragraphs (a) to (e) of subsection (1) (a) if the Court is satisfied that the person is engaging in or has been engaging in conduct of that kind, whether or not it appears to the Court that the person intends to engage again or continue to engage in the conduct; or (b) if it appears to the Court that, in the event that the injunction is not granted, it is likely that the person will engage in conduct of that kind, whether or not that person has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person engages in conduct of that kind; or (c) if the Court determines it to be appropriate, by consent of all the parties to the proceedings, whether or not the person has engaged in, or is likely to engage in conduct of that kind. (3) An application for an injunction under this section may be made ex parte. 149A Injunctions to do an act or thing (1) The Supreme Court or the County Court, on the application of the Minister, the Director or any other person, may grant an injunction requiring a person to do any act or thing if the Court is satisfied that the person is engaging in or has been engaging in conduct that constitutes (a) a contravention of any provision of this Act; or (b) attempting or conspiring to contravene such a provision; or 241
s. 149A
(c) aiding, abetting, counselling or procuring a person to contravene such a provision; or (d) inducing or attempting to induce a person, whether by threats, promises or otherwise, to contravene such a provision; or (e) being in any way directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision. (2) The power of the Court under this section to grant an injunction requiring a person to do an act or thing may be exercised (a) whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; and (b) whether or not the person has previously refused or failed to do that act or thing; and (c) whether or not there is an imminent danger of substantial damage to any person if the first person refuses or fails to do that act or thing. (3) Without limiting subsection (1), an injunction under this section may require a person (a) to institute a training program for the person's employees in relation to compliance with this Act; (b) to refund money to purchasers; (c) to transfer property to purchasers; (d) to disclose information about the person's business activities or business associates;
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s. 150
(e) to honour any promise made in the course of misleading or deceptive conduct or in a false representation; (f) to destroy or dispose of goods used for the purpose of a contravention of this Act. (4) Despite subsections (1) and (3), only the Supreme Court may grant an injunction under this section requiring a person to transfer an interest in land. (5) An application for an injunction under this section may be made ex parte. 150 Interim injunctions (1) The Supreme Court, County Court or Magistrates' Court may grant an interim injunction pending determination of an application under section 149, if, in the opinion of the Court it is desirable to do so (a) whether or not it appears to the Court that the person intends to engage in or continue to engage in conduct of the kind referred to in paragraphs (a) to (e) of section 149(1); or (b) whether or not the person has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any person if the firstmentioned person engages in conduct of that kind. (1A) The Supreme Court or County Court may grant an interim injunction pending determination of an application under section 149A in relation to an act or thing, if, in the opinion of the Court it is desirable to do so (a) whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; and
S. 150(1A) inserted by No. 103/2004 s. 20(2). S. 150(1) amended by No. 103/2004 s. 20(1).
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s. 151
(b) whether or not the person has previously refused or failed to do that act or thing; and (c) whether or not there is an imminent danger of substantial damage to any person if the first person refuses or fails to do that act or thing. (2) An application for an injunction under this section may be made ex parte.
S. 151 amended by No. 103/2004 s. 21(a)(b).
151 Power to rescind or vary injunctions A court may rescind or vary an injunction granted by it under section 149 or 149A or an interim injunction granted by it under section 150. 151A Cease trading injunctions (1) The Minister or the Director may apply to the Supreme Court for the grant of an injunction restraining a person from carrying on a business of supplying goods or services (whether or not as part of, or incidental to, the carrying on of another business) if the person is or has been engaging in conduct that constitutes (a) a contravention of any provision of this Act; or (b) attempting or conspiring to contravene such a provision; or (c) aiding, abetting, counselling or procuring a person to contravene such a provision; or (d) inducing or attempting to induce a person, whether by threats, promises or otherwise, to contravene such a provision; or (e) being in any way directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision.
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s. 151B
(2) The Supreme Court may grant the injunction sought (a) if (i) the Court is satisfied that the person is engaging in or has been engaging in conduct of that kind; and (ii) it appears to the Court that, in the event that the injunction is not granted, it is likely that the person will engage in conduct of that kind and there is an imminent danger of substantial damage to any person if the first-mentioned person engages in conduct of that kind; or (b) if the Court determines it to be appropriate, by consent of all the parties to the proceedings, whether or not the person has engaged in, or is likely to engage in conduct of that kind. (3) An injunction under this section may be granted (a) for a specified period; and (b) on specified terms and conditions. 151B Interim cease trading injunctions The Supreme Court may grant an interim injunction pending determination of an application under section 151A, if, in the opinion of the Court it is desirable to do so and it appears to the Court that (a) the person intends to engage in or continue to engage in conduct of a kind referred to in paragraphs (a) to (e) of section 151A(1); and
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s. 151C
(b) there is an imminent danger of substantial damage to any person if the person referred to in paragraph (a) engages in conduct of that kind.
151C Power to rescind or vary cease trading injunctions The Supreme Court may rescind or vary an injunction granted by it under section 151A or an interim injunction granted by it under section 151B. 152 Undertakings as to damages and costs (1) In any application under section 149, 149A or 150, subject to subsection (2), if (a) the court would, but for this subsection, require a person to give an undertaking as to damages or costs; and (b) the Minister or the Director gives the undertaking the court must accept the undertaking by the Minister or the Director and must not require a further undertaking from any other person.
S. 152(1) amended by No. 103/2004 s. 22(1)(a)(b). S. 152(1)(a) amended by No. 103/2004 s. 22(1)(b).
(2) In an application for an injunction under section 149 or 149A, if the application has been made by the Minister or the Director and if the court has determined to grant an interim injunction, the Court must not, as a condition of granting the interim injunction, require the applicant or any other person to give any undertaking as to damages or costs.
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s. 152A
152A Powers of court if requirement of Director or inspector not complied with (1) Subject to subsection (3), if the Director is satisfied that a person has, without reasonable excuse, failed to comply with a requirement under section 106HA, 106I or 118, the Director may certify that failure to a court. (2) Subject to subsection (3), if an inspector is satisfied that a person has, without reasonable excuse, failed to comply with a requirement of the inspector under section 118 or 131, the inspector may certify that failure to a court. (3) The Director or an inspector cannot certify a failure to a court under subsection (1) or (2) if the person to whom the failure relates has been charged with an offence against section 106HA(2), 106I(3) or 132 (as applicable). (4) If the Director or an inspector so certifies under subsection (1) or (2), the court may inquire into the case and may order the person to comply with the requirement within the period specified by the court. (5) If a proceeding is brought under this section in relation to a failure to comply with a requirement, a person to whom the failure relates cannot be charged with an offence under section 106HA(2), 106I(3) or 132 (as applicable) in respect of that failure.
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s. 153
S. 153 (Heading) substituted by No. 19/2009 s. 11(1). S. 153 substituted by No. 103/2004 s. 23. S. 153(1) amended by No. 19/2009 s. 11(2).
153 Non-punitive ordersCorrective advertising orders
(1) A court may, on the application of the Director, make a corrective advertising order in relation to a person if the court is satisfied that the person has contravened or has been involved in a contravention of Part 2, 2A, 2B, 3, 4, 5 or 6. * * * * *
S. 153(2) repealed by No. 19/2009 s. 11(3). S. 153(3) amended by No. 19/2009 s. 11(4).
(3) In this section, a corrective advertising order, in relation to a person, means an order that (a) requires the person to disclose, in the way and to the persons specified in the order, such information as is so specified, being information that the person has possession of or access to; or (b) requires the person to publish, at the person's expense and in the way specified in the order, an advertisement in the terms specified in, or determined in accordance with, the order. (4) This section does not limit a court's powers under any other provision of this Act.
153A Punitive ordersAdverse publicity orders (1) If in any proceedings for an offence against this Act, a person is found guilty of an offence against this Act, the court, in addition to any other penalty it may fix or order it may make, may, on the application of the Director, make an adverse publicity order in relation to the person. 248
s. 154
(2) In this section, an adverse publicity order, in relation to a person, means an order that (a) requires the person to disclose, in the way and to the persons specified in the order, such information as is so specified, being information that the person has possession of or access to; or (b) requires the person to publish, at the person's expense and in the way specified in the order, an advertisement in the terms specified in, or determined in accordance with, the order. (3) This section does not limit a court's powers under any other provision of this Act. 154 Orders to prohibit payment of money or transfer of other property (1) Subject to this section, a court may in the course of prescribed proceedings against a person (the relevant person) under this Act, make one or more of the following orders (a) an order prohibiting, either absolutely or subject to conditions, the making of a payment by a person in total or partial discharge of a debt owed to the relevant person or an associate of the relevant person; (ab) an order prohibiting, either absolutely or subject to conditions, the relevant person from parting with possession of, or transferring or encumbering, any of that person's money or property; (b) an order prohibiting, either absolutely or subject to conditions, a person who is holding money or other property on behalf of the relevant person or an associate of the relevant person from paying all or any of the money or parting with possession of, or 249
S. 154(1)(ab) inserted by No. 19/2009 s. 13(1).
S. 154(1)(b) amended by No. 19/2009 s. 13(2).
s. 154
transferring or encumbering, all or any of the property to the person on whose behalf the money is held or another person at the request of that person;
S. 154(1)(ba) inserted by No. 17/2007 s. 10.
(ba) an order prohibiting, either absolutely or subject to conditions, an ADI at which the relevant person holds an account from transferring, or allowing any person to withdraw, money standing to the credit of the account; (c) an order prohibiting, either absolutely or subject to conditions, the taking or sending by a person of money of the relevant person or of an associate of the relevant person to a place outside Victoria; (d) an order prohibiting, either absolutely or subject to conditions, the taking, sending or transfer by a person of other property of the relevant person or of an associate of the relevant person to a place outside Victoria; (e) if the relevant person is a natural person, an order appointing a receiver or trustee of the property or part of the property of the relevant person with such powers as are specified in the order. (2) The Minister, the Director or another person who is a party to prescribed proceedings may make an application for an order under this section. (3) Subject to subsection (4), an order under this section may be expressed to operate (a) for a period specified in the order; or (b) until proceedings under any other provision of this Part in relation to which the order was made have been concluded.
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s. 154
(4) An order under this section made on an ex parte application must not operate for a period of more than 30 days. (5) A person must comply with an order by a court under this section that is applicable to that person. Penalty: 240 penalty units, in the case of a natural person. 600 penalty units, in the case of a body corporate. (6) Nothing in this section affects the powers the court has apart from this section. (7) A reference in this section to a person who is an associate of another person is a reference to (a) a person holding money or other property on behalf of the other person; or (b) if the other person is a body corporate, a related body corporate. (8) In this section prescribed proceedings means (a) proceedings for an offence against Part 2, 2A, 2B, 3, 4, 5 or 6; or (b) proceedings on an application for an injunction under section 149, 149A, 150, 151A or 151B against a person alleged to have contravened Part 2, 2A, 2B, 3, 4, 5 or 6; or (c) proceedings on an application for an order under section 158; or (d) proceedings for damages under section 159.
S. 154(8)(a) amended by No. 103/2004 s. 24(a). S. 154(8)(b) substituted by No. 103/2004 s. 24(b).
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s. 155
155 Defences
S. 155(1) amended by Nos 103/2004 s. 25(1), 68/2009 s. 97(Sch. item 56.6(a)). S. 155(1)(a) substituted by No. 30/2003 s. 60(a).
(1) Subject to subsection (2), in a prosecution under this Act in relation to a contravention of a prescribed provision, it is a defence if the accused establishes (a) that the contravention in respect of which the proceeding was instituted was due to reasonable mistake of fact, including a mistake of fact caused by a reasonable reliance on information supplied by another person; or * * * * *
S. 155(1)(b) repealed by No. 30/2003 s. 60(b).
(c) that
S. 155(1)(c)(i) amended by No. 68/2009 s. 97(Sch. item 56.6(b)).
(i) the contravention in respect of which the proceeding was instituted was due to the act or default of another person, to an accident or to some other cause beyond the control of the accused; and (ii) the accused took reasonable precautions and exercised due diligence to avoid the contravention. (2) In subsection (1)(b) and (c), another person does not include a person who was
S. 155(1)(c)(ii) amended by No. 68/2009 s. 97(Sch. item 56.6(a)).
S. 155(2)(a) amended by No. 68/2009 s. 97(Sch. item 56.7(a)).
(a) an employee or an agent of the accused; or
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s. 155
S. 155(2)(b) amended by No. 68/2009 s. 97(Sch. item 56.7).
(b) in the case of an accused being a body corporate, an officer or an agent of the accused at the time when the contravention occurred. (3) If a defence provided by subsection (1) involves an allegation that a contravention was due to reliance on information supplied by another person or to the act or default of another person, the accused is not, without leave of the court, entitled to rely on that defence unless the accused has, not later than 14 days before the day on which the hearing of the proceeding commences, served on the person by whom the proceeding was instituted, a notice in writing giving such information that would identify or assist in the identification of the other person as was then in the possession of the accused. (4) In a proceeding under this Act in relation to a contravention of a prescribed provision (other than section 27) committed by the publication of an advertisement, it is a defence if the accused establishes that (a) the accused is a person whose business is to publish or arrange for the publication of advertisements; and (b) that the accused received the advertisement for publication in the ordinary course of business and did not know and had no reason to suspect that its publication would amount to a contravention of a prescribed provision.
S. 155(3) amended by No. 68/2009 s. 97(Sch. item 56.8).
S. 155(4) amended by Nos 103/2004 s. 25(2)(a), 68/2009 s. 97(Sch. item 56.9). S. 155(4)(a) amended by No. 68/2009 s. 97(Sch. item 56.9).
S. 155(4)(b) amended by Nos 103/2004 s. 25(2)(b), 68/2009 s. 97(Sch. item 56.9).
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s. 156
S. 155(5) inserted by No. 103/2004 s. 25(3), amended by No. 2/2008 s. 7.
(5) In this section prescribed provision means a provision of this Act other than section 32ZB(5), Part 3, section 97, Part 8 or Part 10.
156 Evidence (1) In any proceedings for an offence against this Act evidence that any person carries on business in a place where goods are kept in stock is evidence that the goods are in the possession of the person for supply. (2) In any proceedings for an offence against this Act, evidence that goods were imported from a particular port of shipment is evidence, and in the absence of evidence to the contrary, is proof, that the goods were manufactured or produced in the country in which that port of shipment is situated. (3) In any proceedings for an offence against this Act, the production by the prosecutor of the certificate of an analyst is proof of the facts stated in the certificate unless the defendant, at least 14 days before the hearing commences, has given notice in writing to the prosecutor that he or she requires the analyst to be called as a witness. (4) In any proceedings under this Act, goods which have been manufactured are presumed, in the absence of evidence to the contrary, to have been manufactured for supply.
S. 157 amended by Nos 17/2007 s. 11, 19/2009 s. 14.
157 Findings in proceedings to be evidence In a proceeding against a person under section 158 or 159, a finding of fact by a court made in proceedings under section 149, 149A, 150, 151A, 151B, 151C, 153 or 153A in which that person has been found to have contravened, or to have been involved in a contravention of, a provision of
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s. 158
this Act is evidence of that fact and the finding may be proved by production of a document under the seal of the court from which the finding appears. 158 Orders against persons found to have contravened this Act (1) In any proceedings for an offence against, or a contravention of, this Act, the court may make any order it considers fair if the court finds that
S. 158(1) substituted by No. 30/2003 s. 61(1), amended by No. 91/2005 s. 7(a).
(a) the person against whom the proceedings were brought (the accused) has contravened a provision of this Act (including a provision under Part 2); and (b) another person (the injured person) has suffered or may suffer loss or damage as a result of the contravention of this Act.'. (2) Without limiting subsection (1), the orders that may be made under this section include (a) an order that the whole or any part of a contract between the accused and the injured person which is affected by the contravention or any agreement collateral to such a contract is void on and from the time specified in the order; or (b) an order that the contract or agreement is varied in the manner specified in the order and may specify in the order that the variation takes effect from the time specified in the order; or (c) an order that all or any of the provisions in the contract are not to be enforced; or
S. 158(1)(a) amended by No. 68/2009 s. 97(Sch. item 56.10).
S. 158(2) amended by No. 91/2005 s. 7(b). S. 158(2)(a) amended by No. 68/2009 s. 97(Sch. item 56.11).
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s. 158
S. 158(2)(d) amended by No. 68/2009 s. 97(Sch. item 56.11).
(d) an order that the accused (i) refund to the injured person money paid by that person under the contract or agreement; or (ii) return to the injured person property transferred by the injured person under the contract or agreement; or
S. 158(2)(e) amended by No. 68/2009 s. 97(Sch. item 56.11). S. 158(2)(f) amended by No. 68/2009 s. 97(Sch. item 56.11).
(e) an order that the accused pay the amount of any loss or damage suffered by the injured person as a result of the breach to the injured person; or (f) an order that the accused repair or provide parts for goods provided under the contract or agreement to the injured person; or (g) an order that the accused supply services required to be supplied under the contract or agreement to the injured person; or
S. 158(2)(g) amended by Nos 30/2003 s. 61(2)(a), 17/2007 s. 12(a), 68/2009 s. 97(Sch. item 56.11). S. 158(2)(h) repealed by No. 30/2003 s. 61(2)(b), new s. 158(2)(h) inserted by No. 17/2007 s. 12(b), amended by No. 68/2009 s. 97(Sch. item 56.11). S. 158(3) amended by No. 68/2009 s. 97(Sch. item 56.12).
(h) an order declaring that the accused has contravened a provision of this Act or the regulations.
(3) In any proceedings under section 149, 150 or 159, if the court or the Tribunal finds that (a) a party to the proceedings has contravened the provisions of this Act; and
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s. 159
(b) that another person has suffered or is likely to suffer loss or damage as a result of that contravention the court or the Tribunal may make any order against the party to the proceedings that might be made against an accused under subsection (1). (4) The court may also make an order under this section against a person involved in a contravention of a provision of this Act. 159 Actions for damages (1) A person who suffers loss, injury or damage because of a contravention of a provision of this Act may recover the amount of the loss or damage or damages in respect of the injury by proceeding against any person who contravened the provision or was involved in the contravention. (1A) Except in accordance with section 107(3), a person may not recover in the Tribunal an amount for any personal injury suffered. (2) A proceeding under this section may be brought before the Tribunal or in any court of competent jurisdiction. (3) A proceeding under subsection (1) must not be commenced more than 6 years after the date on which the cause of action accrued.
Note This subsection is subject to Part IIA of the Limitation of Actions Act 1958.
Note to s. 159(3) inserted by No. 60/2003 s. 20. S. 159(1) amended by No. 103/2004 s. 26. S. 158(4) inserted by No. 30/2003 s. 61(3).
160 Awards of compensation (1) If in any proceedings for an offence against this Act, a person is found guilty of an offence against this Act, the court, in addition to any other penalty it may fix, may order that the person pay to a
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s. 160A
person who, in the opinion of the court, was humiliated or distressed by the conduct constituting the offence an amount of up to
S. 160(1)(a) amended by No. 19/2009 s. 15.
(a) $10 000; or
(b) if a greater amount is prescribed, that prescribed amount. (2) An order under this section may be enforced as if it were an order made by the court in its civil jurisdiction.
Pt 11 Div. 3 (Heading and ss 160A 160H) inserted by No. 30/2003 s. 63.
Division 3Infringement notices
160A Power to serve a notice (1) An authorised officer may serve an infringement notice on any person that he or she has reason to believe has committed an offence specified by the regulations as an offence in respect of which an infringement notice may be issued. (1A) An offence referred to in subsection (1) for which an infringement notice may be served is an infringement offence within the meaning of the Infringements Act 2006 and the penalty for that offence is the prescribed infringement penalty in respect of that offence. (2) In this Division authorised officer means (a) an inspector; (b) a member of the police force;
S. 160A(1A) inserted by No. 32/2006 s. 94(Sch. item 19(1)).
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s. 160B
(c) a person authorised in writing by the Director. * * * * *

S. 160A(3) repealed by No. 32/2006 s. 94(Sch. item 19(3)). S. 160B inserted by No. 30/2003 s. 63, substituted by No. 32/2006 s. 94(Sch. item 19(2)).
160B Form of notice For the purposes of section 160A(1), an infringement notice must be in the form required by the Infringements Act 2006 and may contain any additional information approved by the Director. * * * * *
Ss 160C 160H inserted by No. 30/2003 s. 63, repealed by No. 32/2006 s. 94(Sch. item 19(3)).
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s. 161
Fair Trading Act 1999 No. 16 of 1999 Part 12Miscellaneous
PART 12MISCELLANEOUS
161 Supplier to give documents If a purchaser or a prospective purchaser of goods or services asks the supplier for a document containing particulars of the goods or services, the supplier must give the purchaser or prospective purchaser a document which complies with section 163 and which contains (a) any particulars of the goods or services which are sufficient to identify them; and (b) any particulars of the standards of the goods or services or of parts of the goods or services which ought reasonably to be made known to the purchaser or prospective purchaser; and (c) any particulars or information in relation to the goods or services which have been asked for by the purchaser or prospective purchaser; and (d) if particulars have been prescribed for the purposes of this section in relation to the goods or services, the prescribed particulars. Penalty: 60 penalty units, in the case of a natural person. 120 penalty units, in the case of a body corporate.
161A Bills and receipts (1) Within 30 days after receipt of a bill or account from a supplier for services supplied, a purchaser to whom the services were supplied may request an itemised bill.
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s. 161A
(2) A supplier must provide an itemised bill within 7 days of receiving a request under subsection (1). Penalty: 60 penalty units, in the case of a natural person. 120 penalty units, in the case of a body corporate. (3) A supplier must not charge a person for the preparation of an itemised bill for services. Penalty: 60 penalty units, in the case of a natural person. 120 penalty units, in the case of a body corporate. (4) A supplier must, at the completion of a contract for goods or services the value of which exceeds $50 (exclusive of GST), provide the purchaser with a proof of transaction. Penalty: 60 penalty units, in the case of a natural person. 120 penalty units, in the case of a body corporate. (5) After completion of a contract for goods or services the value of which does not exceed $50, a purchaser to whom the goods or services were supplied may request a proof of transaction. (6) A supplier must provide a proof of transaction within 7 days of receiving a request under subsection (5). Penalty: 60 penalty units, in the case of a natural person. 120 penalty units, in the case of a body corporate.
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s. 162
S. 161A(7) amended by No. 18/2005 s. 18(Sch. 1 item 42).
(7) This section does not apply to a contract for the provision of legal services to which the Legal Profession Act 2004 applies. (8) In this section GST has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth; itemised bill means a bill or account of costs that specifies how the costs are calculated and includes, where applicable, the hourly rate and number of hours comprising the labour component and a list of the various materials used and the amount charged for each item; proof of transaction means evidence that identifies the supplier, the date of the supply and the goods or services supplied to a purchaser.
Note Proof of transaction includes the followinga tax invoice under the A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth, a cash-register receipt, a credit or debit card statement, a hand-written receipt, a lay-by agreement and a confirmation or receipt number provided in a telephone or internet transaction.
162 Return of replaced parts to purchaser (1) A person who permanently removes a part from goods which he or she is repairing or maintaining in trade or commerce (whether or not he or she also replaces the part) (a) must offer to return the removed part at or before the return of the goods; and
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s. 162A
(b) must return the removed part, if the owner asks for the part to be returned, within a reasonable time of the return of the goods to the owner. Penalty: 60 penalty units, in the case of a natural person. 120 penalty units, in the case of a body corporate. (2) Subsection (1) does not apply if no charge is made for the removal of the part and, if the part is replaced, no charge is made for the replacement and fitting of the part. 162A Public warning statements If satisfied it is in the public interest to do so, the Minister or the Director may publish a public statement or issue a public warning, identifying and giving information about the following (a) goods that are unsatisfactory and the persons who supply those goods; (b) services supplied in an unsatisfactory manner and persons who supply those services; (c) unfair business practices and persons who engage in those practices; (d) any other matter that adversely affects or may adversely affect the interests of persons in connection with the acquisition by them of goods or services from suppliers.
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s. 163
163 Consumer documents to be clear (1) In this section consumer document means (a) a consumer contract; or (b) a statement, notice or other document required by this Act to comply with this section.
S. 163(2) amended by No. 17/2007 s. 13(a).
(2) A consumer document does not include a contract to which the Consumer Credit (Victoria) Act 1995 applies. (3) A consumer document (a) must be easily legible; and
S. 163(3)(b) amended by No. 2/2008 s. 8(1).
(b) to the extent that it is printed or typed, must use a minimum 10 point Times New Roman font, or a minimum font of an equivalent size; and (c) must be clearly expressed. (4) If a court or the Tribunal is satisfied, on application by the Director, that any provision of a consumer document does not comply with the requirements of this section, the court or the Tribunal may by order prohibit a supplier from using the provision in the same or similar terms in consumer documents. (5) A supplier must comply with an order under this section. Penalty: 60 penalty units, in the case of a natural person. 120 penalty units, in the case of a body corporate.
S. 163(4) amended by Nos 17/2007 s. 13(b), 2/2008 s. 8(2).
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s. 163A
163A Complaints etc. are privileged If a person in good faith (a) makes a complaint to the Director under section 103; or (b) produces or gives a document or any information or evidence to the Director, an inspector or the Tribunal in relation to a matter that constitutes or may constitute a contravention of this Act or another Consumer Act the person is not liable in any way for any loss, damage or injury suffered by another person by reason only of the making of that complaint or the production or giving of that document, information or evidence. 164 Supreme Courtlimitation of jurisdiction (1) It is the intention of sections 111 and 112 to alter or vary section 85 of the Constitution Act 1975. (2) It is the intention of section 112A to alter or vary section 85 of the Constitution Act 1975. 165 Regulations (1) The Governor in Council may make regulations for or with respect to (aa) prescribing for the purposes of section 32N the form of and the particulars to be included in a contractual term or a class of contractual term referred to in that section; (ab) prescribing terms which are unfair terms for the purposes of Part 2B;
S. 164 amended by No. 30/2003 s. 67 (ILA s. 39B(1)). S. 164(2) inserted by No. 30/2003 s. 67.
S. 165(1)(aa) inserted by No. 30/2003 s. 68, amended by No. 106/2003 s. 17(1). S. 165(1)(ab) inserted by No. 30/2003 s. 68.
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s. 165
(a) prescribing safety and information standards under Part 3; (b) prescribing terms to which lay-bys are subject under Part 5; (c) prescribing codes of practice in accordance with Part 6;
S. 165(1)(ca) inserted by No. 106/2003 s. 17(2).
(ca) providing for the exemption of a class of telephone marketing agreement from any or all of the provisions of Part 4; (d) prescribing any other matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act. (2) The regulations (a) may be of a general or limited application; (b) may differ according to differences in time, place or circumstances; (c) may confer a discretionary authority or impose a duty on a specified person or body or a specified class of persons or bodies; (d) may apply, adopt or incorporate any matter contained in any document, code, standard, rule, specification or method formulated, issued, prescribed or published by any person, whether (i) wholly or partially or as amended by the regulations; or (ii) as formulated, issued, prescribed or published at the time the regulations are made or at any time before then; or (iii) as formulated, issued, prescribed or published from time to time;
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s. 165
(e) may provide in a specified case or class of case for the exemption of people or things or a class of people or things from any of the provisions of the regulations, whether unconditionally or on specified conditions and either wholly or to such an extent as is specified; (f) may impose a penalty, not exceeding 20 penalty units, for a contravention of the regulations. _______________
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s. 166
Fair Trading Act 1999 No. 16 of 1999 Part 13Repeals, Savings and Transitional
PART 13REPEALS, SAVINGS AND TRANSITIONAL
166 Repeal of Fair Trading Act 1985 The Fair Trading Act 1985 is repealed. 167 Repeal of Consumer Affairs Act 1972 The Consumer Affairs Act 1972 is repealed. 168 Repeal of Ministry of Consumer Affairs Act 1973 The Ministry of Consumer Affairs Act 1973 is repealed. 169 Repeal of Market Court Act 1978 The Market Court Act 1978 is repealed. 170 Savings and transitional provisions Schedule 3 has effect. __________________
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Fair Trading Act 1999 No. 16 of 1999 Sch. 1
SCHEDULES
SCHEDULE 1 CONSUMER ACTS
Sch. 1 amended by No. 35/2000 s. 40(5)(a)(b), substituted by No. 103/2004 s. 27, amended by Nos 77/2006 s. 90, 69/2006 s. 224(Sch. 3 item 6.2), 75/2006 s. 192(Sch. 2 item 3.3), 2/2009 s. 22, 19/2009 s. 17(2).
Associations Incorporation Act 1981 Business Names Act 1962 Consumer Credit (Victoria) Act 1995 Conveyancers Act 2006 Co-operatives Act 1996 Credit Act 1984 Credit (Administration) Act 1984 Domestic Building Contracts Act 1995 Estate Agents Act 1980 Fair Trading Act 1999 Fundraising Act 1998 Funerals Act 2006 Goods Act 1958 Introduction Agents Act 1997 Motor Car Traders Act 1986 Owners Corporations Act 2006 Partnership Act 1958 Petroleum Products (Terminal Gate Pricing) Act 2000 Prostitution Control Act 1994 Residential Tenancies Act 1997 Retirement Villages Act 1986 Sale of Land Act 1962
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Second-Hand Dealers and Pawnbrokers Act 1989 Trade Measurement Act 1995 Trade Measurement (Administration) Act 1995 Travel Agents Act 1986 Utility Meters (Metrological Controls) Act 2002 __________________
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SCHEDULE 2 CONTACT SALES AGREEMENTS/ TELEPHONE MARKETING AGREEMENTS
Sch. 2 substituted by Nos 30/2003 s. 69, 106/2003 s. 19, amended by No. 103/2004 s. 28.
PART 1NOTICE TO PURCHASER The following notice is to appear on the front page of a contact sales agreement or telephone marketing agreement document and, in the case of a contact sales agreement, must be signed by the purchaser: "IMPORTANT NOTICE TO THE PURCHASER YOU HAVE A RIGHT TO CANCEL THIS AGREEMENT WITHIN 10 DAYS FROM AND INCLUDING * IN THE CASE OF A CONTACT SALES AGREEMENT (for example, a door-to-door sale), THE DAY YOU SIGNED THE AGREEMENT; OR IN THE CASE OF A TELEPHONE MARKETING AGREEMENT (that is, an agreement made over the telephone), THE DAY YOU RECEIVED THE AGREEMENT DOCUMENT. (*Cross out whichever does not apply) IMPORTANT DETAILS ABOUT YOUR RIGHTS ARE SET OUT IN THE CANCELLATION NOTICE PROVIDED WITH THIS DOCUMENT.
Signed by the Purchaser: _____________________ Date: _________________________" 271
PART 2CANCELLATION NOTICE A Cancellation Notice in the following form must accompany a contact sales agreement or a telephone marketing agreement document: 'CANCELLATION NOTICE (supplier or supplier's agent details and date and details of agreement must be completed by supplier or supplier's agent) TO THE SUPPLIER or SUPPLIER'S AGENT: Supplier or supplier's agent's name: Supplier or supplier's agent's address: Supplier or supplier's agent's facsimile number (if any): Date of Agreement: Details of goods or services to be supplied under Agreement:
I WISH TO CANCEL THIS AGREEMENT. If this is an agreement for the supply of goods: *I RETURN THE GOODS WITH THIS NOTICE or *THE GOODS CAN BE COLLECTED FROM THE FOLLOWING ADDRESS:_____________________ (*Cross out whichever does not apply) Signed by the Purchaser: ____________ Date: _________________
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(The wording below must appear in bold capital print or type, of a size at least as large as the largest print or type appearing on any other part of the notice)
"NOTICE TO THE PURCHASER WANTING TO CANCEL THIS AGREEMENT IF YOU WISH TO CANCEL THIS AGREEMENT PLEASE SIGN AND DATE THIS NOTICE OF CANCELLATION AND o o o LEAVE THE NOTICE AT THE SUPPLIER'S OR SUPPLIER'S AGENT'S ADDRESS; OR POST IT TO THE SUPPLIER OR THE SUPPLIER'S AGENT'S ADDRESS; OR FAX IT TO THE FAX NUMBER SET OUT IN THIS NOTICE; OR COMPLY WITH ONE OF THE FOLLOWING OTHER PERMITTED MEANS OF NOTIFYING A CANCELLATION o IN THE CASE OF A CONTACT SALES AGREEMENT, IN ANY MANNER REPRESENTED TO YOU BY THE SUPPLIER OR THE SUPPLIER'S AGENT AT THE TIME OF ENTERING THE AGREEMENT IN THE CASE OF A TELEPHONE MARKETING AGREEMENT, BY TELEPHONING THE SUPPLIER OR THE SUPPLIER'S AGENT.
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THIS MUST BE DONE WITHIN 10 DAYS FROM AND INCLUDING THE DAY YOU o o SIGNED THE AGREEMENT (IN THE CASE OF A CONTACT SALES AGREEMENT); OR RECEIVED THE AGREEMENT DOCUMENT (IN THE CASE OF A TELEPHONE MARKETING AGREEMENT) ("THE COOLING-OFF PERIOD"). YOU MAY STILL BE REQUIRED TO PAY A FAIR PRICE FOR GOODS WHICH CANNOT BE RETURNED TO THE SUPPLIER UNLESS YOU ENTERED INTO THE AGREEMENT BECAUSE THE SUPPLIER OR THE SUPPLIER'S AGENT MADE A FALSE OR MISLEADING REPRESENTATION ABOUT YOUR NEED FOR THE GOODS. THE SUPPLIER OR THE SUPPLIER'S AGENT MUST NOT REQUIRE YOU TO PAY FOR SERVICES PROVIDED TO YOU DURING THE COOLING-OFF PERIOD (UNLESS, IN THE CASE OF A TELEPHONE MARKETING AGREEMENT, THE SERVICES ARE BEING PROVIDED TO YOU ON A CONTINUING BASIS). IF YOU CANCEL THIS AGREEMENT DURING THE COOLING-OFF PERIOD, THE SUPPLIER IS ENTITLED TO APPLY TO THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL ("VCAT") FOR AN ORDER THAT YOU HAVE TO PAY A REASONABLE AMOUNT FOR THE SERVICES YOU RECEIVED BEFORE YOU CANCELLED THE AGREEMENT. YOU WILL NOT BE REQUIRED TO PAY ANYTHING IF VCAT DECIDES THAT THE SUPPLIER OR THE SUPPLIER'S AGENT HAS BREACHED THE FAIR TRADING ACT 1999 IN RELATION TO THIS AGREEMENT, FOR 274
EXAMPLE, BY MAKING A FALSE OR MISLEADING STATEMENT TO YOU ABOUT YOUR NEED FOR THE SERVICES.". __________________
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SCHEDULE 3 SAVINGS AND TRANSITIONAL
1 Superseded references On the commencement of this clause, in any Act (other than this Act), or in any instrument made under any Act or in any other document of any kind (a) a reference to the Fair Trading Act 1985 is deemed to be a reference to this Act; (b) a reference to the Consumer Affairs Act 1972 is deemed to be a reference to this Act; (c) a reference to the Director of Consumer Affairs is deemed to be a reference to the Director of Fair Trading; (d) a reference to the Director appointed under the Ministry of Consumer Affairs Act 1973 is deemed to be a reference to the Director of Fair Trading. 2 Actions commenced by Director or Secretary (1) Any act, matter or thing of a continuing nature commenced under any Act or regulation by or against or in relation to the Director of Consumer Affairs and existing immediately before the commencement of this clause may be continued and completed on and after that commencement by or against or in relation to the Director of Fair Trading. (2) If, immediately before the commencement of this clause, proceedings to which the Director of Consumer Affairs was a party were pending or existing in any court or tribunal, then, on and after that commencement, the Director of Fair Trading is substituted for the Director of Consumer Affairs 276
as a party to the proceedings and has the same rights and obligations in the proceedings as the Director of Consumer Affairs had. (3) In this clause Director of Consumer Affairs means (a) the Director of Consumer Affairs appointed for the purposes of the Ministry of Consumer Affairs Act 1973; or (b) the Secretary of the Department of Justice exercising the powers of the Director of Consumer Affairs pursuant to an Order made under the Administrative Arrangements Act 1983. (4) This section does not apply to any act, matter or thing done under the Weights and Measures Act 1958 (as in force immediately before its repeal) or the Liquor Control Act 1987 (as in force immediately before its repeal). 3 Inspectors (1) On and after the commencement of this clause (a) each former inspector holding office immediately before that commencement is deemed to be an inspector appointed by the Director under section 114 of this Act; and (b) a certificate of appointment furnished under section 63 of the Consumer Affairs Act 1972 in respect of the appointment of a former inspector is deemed to be an identity card issued by the Director under section 115 of this Act. (2) On and after the commencement of this clause, an inspector appointed by the Director under section 114 of this Act may continue and complete any proceedings under any Act or regulation commenced or made by or against or in
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relation to a former inspector and existing immediately before that commencement. (3) In this clause former inspector means an inspector appointed or authorised under section 62 of the Consumer Affairs Act 1972. 4 Regulations Despite the repeal of the Consumer Affairs Act 1972 the following regulations continue in operation and may be amended or revoked as if they were made under this Act (a) Consumer Affairs (Product Safety) (Airpots) Regulations 1992; (b) Consumer Affairs (Product Safety) (Spirit Stoves) Regulations 1992; (c) Consumer Affairs (Product Safety) (Children's Toys) Regulations 1998; (d) Consumer Affairs (Product Safety) (Lighters) Regulations 1998. 5 Orders On the commencement of this clause all orders made under section 57D of the Consumer Affairs Act 1972 and existing immediately before that commencement are deemed to be permanent ban orders under this Act.
Sch. 3 cl. 6 inserted by No. 35/2000 s. 41.
6 Superseded references to Director of Fair Trading and Office of Fair Trading and Business Affairs On the commencement of section 39 of the Business Registration Acts (Amendment) Act 2000, in any Act (other than this Act), or in any instrument made under any Act or in any other document of any kind (a) a reference to the Director of Fair Trading is deemed to be a reference to the Director of Consumer and Business Affairs; and 278
(b) a reference to the Office of Fair Trading or the Office of Fair Trading and Business Affairs is deemed to be a reference to Consumer and Business Affairs Victoria in the Department of Justice. 7 Actions commenced by Director (1) Any act matter or thing of a continuing nature commenced under any Act or regulation by or against or in relation to the Director of Fair Trading and existing immediately before the commencement of section 39 of the Business Registration Acts (Amendment) Act 2000 may be continued and completed on and after that commencement by or against or in relation to the Director of Consumer and Business Affairs. (2) If, immediately before the commencement of section 39 of the Business Registration Acts (Amendment) Act 2000, proceedings to which the Director of Fair Trading was a party were pending or existing in any court or tribunal, then, on and after that commencement, the Director of Consumer and Business Affairs is substituted for the Director of Fair Trading as a party to the proceedings and has the same rights and obligations in the proceedings as the Director of Fair Trading had. 8 Superseded references On the commencement of section 70 of the Fair Trading (Amendment) Act 2003, in any Act (other than this Act), or in any instrument made under any Act or in any other document of any kind (a) a reference to the Director of Fair Trading or the Director of Consumer and Business Affairs is deemed to be a reference to the Director of Consumer Affairs Victoria; and
Sch. 3 cl. 8 inserted by No. 30/2003 s. 70. Sch. 3 cl. 7 inserted by No. 35/2000 s. 41.
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(b) a reference to the Office of Fair Trading, the Office of Fair Trading and Business Affairs or Consumer and Business Affairs Victoria is deemed to be a reference to Consumer Affairs Victoria in the Department of Justice.
9 Actions commenced by Director (1) Any act, matter or thing of a continuing nature commenced under any Act or regulation by or against or in relation to the Director of Consumer and Business Affairs or the Director of Fair Trading and existing immediately before the commencement of section 70 of the Fair Trading (Amendment) Act 2003, may be continued and completed on and after that commencement by or against or in relation to the Director of Consumer Affairs Victoria. (2) If, immediately before the commencement of section 70 of the Fair Trading (Amendment) Act 2003, proceedings to which the Director of Consumer and Business Affairs was a party were pending or existing in any court or tribunal, then, on and after that commencement, the Director of Consumer Affairs Victoria is substituted for the Director of Consumer and Business Affairs as a party to the proceedings and has the same rights and obligations in the proceedings as had the Director of Consumer and Business Affairs.
10 Validation of ban orders (1) An interim ban order or a permanent ban order that was made before the commencement of section 70 of the Fair Trading (Amendment) Act 2003 is valid and effective, and is deemed always to have been valid and effective, despite any failure to comply with the requirements of section 32 of the Interpretation of Legislation Act 1984 or section 40(2)(b) of the Fair Trading Act 1999. 280
(2) An interim order under section 57C of the Consumer Affairs Act 1972 (as in force before its repeal) is deemed to have been and always to have been valid and effective, despite any failure to comply with the requirements of section 32 of the Interpretation of Legislation Act 1984 or section 57C(1)(b) of the Consumer Affairs Act 1972. (3) An order under section 57D of the Consumer Affairs Act 1972 (as in force before its repeal) is deemed to have been and always to have been valid and effective, despite any failure to comply with the requirements of section 32 of the Interpretation of Legislation Act 1984 or section 57D(1)(b) of the Consumer Affairs Act 1972. 11 Continuation of existing small claims (1) Despite the repeal of the Small Claims Act 1973 by section 72 of the Fair Trading (Amendment) Act 2003, the Small Claims Act 1973 as in force immediately before its repeal continues to apply to any proceeding under that Act existing immediately before the commencement of that section in respect of a small claim. (2) Until 31 July 2004, any application made to the Tribunal using an application form that refers to the Small Claims Act 1973 is deemed to be made on an application form that meets the requirements for an application to the Tribunal in respect of a small claim under Part 9 of the Fair Trading Act 1999.
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12 Continuation of existing hire-purchase agreements (1) Despite the repeal of the Hire-Purchase Act 1959, that Act continues to apply to any hirepurchase agreement and any agreement made in connection with a hire-purchase agreement entered into and in operation immediately before 1 April 1998 and existing before the commencement day. (2) Despite the repeal of the Hire-Purchase Act 1959, sections 1(4B), 1(4C) and 1(6) of that Act continue to apply in respect of agreements to which they applied immediately before the commencement day as if that Act had not been repealed. (3) In this clause commencement day means the date of commencement of section 54 of the Fair Trading and Consumer Acts Further Amendment Act 2008.
13 Transitionalreferences to the Frustrated Contracts Act 1959 On and from the commencement of section 53 of the Fair Trading and Consumer Acts Further Amendment Act 2008, in any Act (other than this Act) or in any instrument made under any Act or in any other document of any kind a reference to the Frustrated Contracts Act 1959 is deemed to be a reference to Part 2C so far as it relates to any period after that commencement, unless the context otherwise requires. 14 Transitional provisionsFair Trading and Other Acts Amendment Act 2009 (1) Despite the amendment of this Act by section 4 of the Fair Trading and Other Acts Amendment Act 2009, Part 2B does not apply to contractual terms contained in a contract to which the Consumer Credit (Victoria) Act 1995 applies 282
(other than a contract in a prescribed class of contract) if the contract was entered into before the commencement of that section 4 unless a term of that contract is varied on or after that commencement, in which case Part 2B applies to that term on and from the time the variation takes effect. (2) Section 32ZDA applies only to a proceeding that commences on or after the commencement of section 10 of the Fair Trading and Other Acts Amendment Act 2009. (3) The Act as in force immediately before the commencement of sections 11 and 12 of the Fair Trading and Other Acts Amendment Act 2009 continues to apply to any order made under section 153 before that commencement. (4) The amendments made to section 154 by section 13 of the Fair Trading and Other Acts Amendment Act 2009 apply only to prescribed proceedings against a person that commence on or after the commencement of that section 13. (5) The amendment to section 160(1)(a) made by section 15 of the Fair Trading and Other Acts Amendment Act 2009 applies only in relation to an offence committed on or after the commencement of that section 15. (6) For the purposes of subsection (5), if an offence is alleged to have been committed between 2 dates and section 15 of the Fair Trading and Other Acts Amendment Act 2009 commences on a date between those 2 dates, the offence is taken to have been committed before the commencement of that section.
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15 TransitionalStatute Law Amendment (Charter of Human Rights and Responsibilities) Act 2009 (1) Despite the commencement of section 7 of the Statute Law Amendment (Charter of Human Rights and Responsibilities) Act 2009, section 4(2) as in force immediately before that commencement continues to apply to proceedings for an offence that were commenced under section 4 but not completed before that commencement. (2) Despite the commencement of section 8 of the Statute Law Amendment (Charter of Human Rights and Responsibilities) Act 2009, section 14(2) as in force immediately before that commencement continues to apply to proceedings commenced under section 14 but not completed before that commencement.
16 TransitionalConsumer Affairs Legislation Amendment Act 2010 (1) As soon as practicable after 1 January 2011, the Director must take possession, and have custody, control and use of the register within the meaning of section 7 of the Private Agents Act 1966. (2) As soon as practicable after 1 January 2011, the Director must send a notice to every person who, immediately before that date, held a licence in respect of any category of private agent under the Private Agents Act 1966, requiring that person to give or send their licence to the Director. (3) A person must within 14 days of receipt of the notice under subsection (2) give or send their licence to the Director. Penalty: 30 penalty units.
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17 TransitionalRepeal of Trade Measurement Act 1995 (1) On and from the commencement of section 83 of the Consumer Affairs Legislation Amendment Act 2010, the Director may bring proceedings for an offence under the Trade Measurement Act 1995 if the alleged offence was committed before the commencement of that section. (2) On and from the commencement of section 83 of the Consumer Affairs Legislation Amendment Act 2010, any proceeding commenced by the Director, Trade Measurement Victoria in relation to a contravention of the Trade Measurement Act 1995 before that date, may be continued by the Director of Consumer Affairs Victoria. (3) Despite section 83 of the Consumer Affairs Legislation Amendment Act 2010, Division 3 of Part 6 of the Trade Measurement Act 1995, as in force immediately before its repeal, continues to apply in relation to any matter for which a notice has been served under section 57 of that Act before 1 July 2010. (4) Despite section 83 of the Consumer Affairs Legislation Amendment Act 2010, Division 4 of Part 6 of the Trade Measurement Act 1995, as in force immediately before its repeal, continues to apply in relation to any person who is the subject of disciplinary action taken by the licensing authority under section 58 of that Act. (5) Any reference to the licensing authority in Divisions 3 and 4 of Part 6 of the Trade Measurement Act 1995, as in force immediately before the repeal of that Act and that continues to apply by virtue of this clause, is taken to be a reference to the Director of Consumer Affairs Victoria and any disciplinary action commenced by the Director, Trade Measurement Victoria may 285
be continued by the Director of Consumer Affairs Victoria. (6) On and from the commencement of section 83 of the Consumer Affairs Legislation Amendment Act 2010, any fees that were due and payable under the Trade Measurement Act 1995 or the regulations on that date, continue to be due and payable and, despite anything to the contrary in that Act or the regulations immediately before its repeal, may be collected by the Director of Consumer Affairs Victoria. (7) Despite the repeal of the Trade Measurement Act 1995, the powers of an inspector to investigate an offence against that Act under Part 7 of that Act (a) continue to apply where the alleged offence occurred before 1 July 2010; and (b) despite anything to the contrary in that Act as in force immediately before its repeal, may be exercised by an inspector appointed by the Director of Consumer Affairs Victoria for that purpose in accordance with section 114 of this Act. (8) On and from the commencement of section 83 of the Consumer Affairs Legislation Amendment Act 2010, any item seized by an inspector under section 61 or 62 of the Trade Measurement Act 1995 as in force immediately before its repeal and held by the administering authority under that Act (a) must be transferred to the custody of the Director of Consumer Affairs Victoria; and (b) may be returnable to the person from whom it was seized on application, within the time limits specified in section 64 of that Act, to the Director of Consumer Affairs Victoria. 286
(9) In this clause, regulations includes regulations made under either the Trade Measurement Act 1995 or the Trade Measurement (Administration) Act 1995, or both. 18 TransitionalRepeal of Trade Measurement (Administration) Act 1995 (1) On and from the commencement of section 84 of the Consumer Affairs Legislation Amendment Act 2010, the Director may bring proceedings for an offence under the Trade Measurement (Administration) Act 1995 or the regulations if the alleged offence was committed before the commencement of that section. (2) On and from the commencement of section 84 of the Consumer Affairs Legislation Amendment Act 2010, any proceeding commenced by the Director in relation to a contravention of the Trade Measurement (Administration) Act 1995 or the regulations before that date, may be continued by the Director. (3) On and from the commencement of section 84 of the Consumer Affairs Legislation Amendment Act 2010, any fees that were due and payable under the Trade Measurement (Administration) Act 1995 or any regulations made under that Act on that date, continue to be due and payable and, despite anything to the contrary in that Act or the regulations immediately before its repeal, are to be paid to the Director of Consumer Affairs Victoria. (4) Despite the repeal of the Trade Measurement (Administration) Act 1995, for the purposes of exercising the transitional powers conferred by clause 17 and this clause of this Schedule, the Director of Consumer Affairs Victoria may exercise the power of the Director, Trade
287
Measurement Victoria to appoint a person as an inspector under section 9(1)(a) of that Act. (5) On and from the commencement of section 84 of the Consumer Affairs Legislation Amendment Act 2010, a certification fee that would be payable on or after 1 July 2010 under section 10 of the Trade Measurement (Administration) Act 1995 or the regulations as in force immediately before its repeal, that relates to a certification carried out before that date (a) continues to be due and payable despite the repeal of the Trade Measurement (Administration) Act 1995; and (b) despite anything to the contrary in that Act, is to be paid to the Director of Consumer Affairs Victoria. (6) Despite the repeal of the Trade Measurement (Administration) Act 1995, the power of an inspector to apply for a search warrant under section 16 of that Act as in force immediately before its repeal (a) continues to apply if the application relates to premises which may contain evidence of an alleged offence that occurred before 1 July 2010; and (b) despite anything to the contrary in the Trade Measurement (Administration) Act 1995 as in force immediately before its repeal, may be exercised within the time limits specified in section 24 of that Act by an inspector appointed by the Director of Consumer Affairs Victoria for that purpose in accordance with section 114 of this Act. (7) Despite the repeal of the Trade Measurement (Administration) Act 1995, section 18 of that Act as in force immediately before its repeal 288
(a) continues to apply in relation to an offence committed prior to 1 July 2010; and (b) any reference in that section to an authorised officer is taken to be a reference to a person authorised by the Director of Consumer Affairs Victoria for the purpose of this clause. (8) In this clause, regulations includes regulations made under either the Trade Measurement Act 1995 or the Trade Measurement (Administration) Act 1995, or both. 19 TransitionalTransfer of information for the purpose of the National Measurement Act 1960 of the Commonwealth (1) On and from the commencement of section 83 of the Consumer Affairs Legislation Amendment Act 2010, the following information must be transferred to the custody of the Director of Consumer Affairs Victoria (a) the register of the prescribed particulars relating to licences kept under section 47 of the Trade Measurement Act 1995; (b) information obtained by the Director, Trade Measurement Victoria as the administering authority or licensing authority. (2) On and from the commencement of section 83 of the Consumer Affairs Legislation Amendment Act 2010, the Director of Consumer Affairs Victoria may provide any information transferred to it under this clause to the National Measurement Institute for the purpose of the administration and enforcement of the National Measurement Act 1960 of the Commonwealth.
289
Fair Trading Act 1999 No. 16 of 1999 Endnotes
ENDNOTES
1. General Information Minister's second reading speech Legislative Assembly: 25 March 1999 Legislative Council: 5 May 1999 The long title for the Bill for this Act was "A Bill to re-enact with amendments laws relating to trading practices, to make further provision about trading practices, to repeal the Consumer Affairs Act 1972, the Ministry of Consumer Affairs Act 1973, the Fair Trading Act 1985 and the Market Court Act 1978 and for other purposes." Constitution Act 1975: Section 85(5) statement: Legislative Assembly: 25 March 1999 Legislative Council: 5 May 1999 Absolute majorities: Legislative Assembly: 22 April 1999 Legislative Council: 12 May 1999 The Fair Trading Act 1999 was assented to on 18 May 1999 and came into operation as follows: Part 1 (sections 16) on 18 May 1999: section 2(1); rest of Act on 1 September 1999: Government Gazette 19 August 1999 page 1901.
290
Fair Trading Act 1999 No. 16 of 1999 Endnotes 2. Table of Amendments This Version incorporates amendments made to the Fair Trading Act 1999 by Acts and subordinate instruments.
Business Registration Acts (Amendment) Act 2000, No. 35/2000 Assent Date: 6.6.00 Commencement Date: Ss 3941 on 19.6.00: Government Gazette 15.6.00 p. 1248 Current State: This information relates only to the provision/s amending the Fair Trading Act 1999 Corporations (Consequential Amendments) Act 2001, No. 44/2001 Assent Date: 27.6.01 Commencement Date: S. 3(Sch. item 42) on 15.7.01: s. 2 Current State: This information relates only to the provision/s amending the Fair Trading Act 1999 Fair Trading (Unconscionable Conduct) Act 2001, No. 86/2001 Assent Date: 11.12.01 Commencement Date: 12.12.01: s. 2 Current State: All of Act in operation Fair Trading (Amendment) Act 2003, No. 30/2003 (as amended by No. 106/2003) Assent Date: 27.5.03 Commencement Date: Ss 3(1)(3), 410, 1325, 3944, 53, 60, 61, 65, 70 on 28.5.03: s. 2(1); ss 3(2), 12, 2638, 4552, 5459, 6264, 6669, 71 on 9.10.03: Government Gazette 9.10.03 p. 2589; s. 11 on 1.6.04: Government Gazette 6.5.04 p. 1068 Current State: This information relates only to the provision/s amending the Fair Trading Act 1999 Wrongs and Limitation of Actions Acts (Insurance Reform) Act 2003, No. 60/2003 Assent Date: 16.6.03 Commencement Date: S. 20 on 21.5.03: s. 2(1) Current State: This information relates only to the provision/s amending the Fair Trading Act 1999 Fair Trading (Further Amendment) Act 2003, No. 106/2003 Assent Date: 9.12.03 Commencement Date: Ss 46, 1618 on 10.12.03: s. 2(1); ss 3, 715, 19 on 30.8.04: Government Gazette 13.5.04 p. 1218 Current State: This information relates only to the provision/s amending the Fair Trading Act 1999
291

Fair Trading (Consumer Contracts) Act 2004, No. 42/2004 Assent Date: 16.6.04 Commencement Date: S. 3 on 17.6.04: s. 2(1); ss 4, 5 on 30.8.04: s. 2(2) Current State: This information relates only to the provision/s amending the Fair Trading Act 1999 Fair Trading (Enhanced Compliance) Act 2004, No. 103/2004 Assent Date: 21.12.04 Commencement Date: Ss 328 on 22.12.04: s. 2(1) Current State: This information relates only to the provision/s amending the Fair Trading Act 1999 Public Administration Act 2004, No. 108/2004 Assent Date: 21.12.04 Commencement Date: S. 117(1)(Sch. 3 item 74) on 5.4.05: Government Gazette 31.3.05 p. 602 Current State: This information relates only to the provision/s amending the Fair Trading Act 1999 Legal Profession (Consequential Amendments) Act 2005, No. 18/2005 Assent Date: 24.5.05 Commencement Date: S. 18(Sch. 1 item 42) on 12.12.05: Government Gazette 1.12.05 p. 2781 Current State: This information relates only to the provision/s amending the Fair Trading Act 1999 Motor Car Traders and Fair Trading Acts (Amendment) Act 2005, No. 91/2005 Assent Date: 29.11.05 Commencement Date: S. 7 on 30.11.05: s. 2(1) Current State: This information relates only to the provision/s amending the Fair Trading Act 1999 Veterans Act 2005, No. 98/2005 Assent Date: 7.12.05 Commencement Date: S. 88 on 21.8.06: Government Gazette 17.8.06 p. 1716 Current State: This information relates only to the provision/s amending the Fair Trading Act 1999 Infringements (Consequential and Other Amendments) Act 2006, No. 32/2006 Assent Date: 13.6.06 Commencement Date: S. 94(Sch. item 19) on 1.7.06: Government Gazette 29.6.06 p. 1315 Current State: This information relates only to the provision/s amending the Fair Trading Act 1999 Owners Corporations Act 2006, No. 69/2006 Assent Date: 19.9.06 Commencement Date: S. 224(Sch. 3 item 6) on 31.12.07: s. 2(2) Current State: This information relates only to the provision/s amending the Fair Trading Act 1999
292

Conveyancers Act 2006, No. 75/2006 Assent Date: 10.10.06 Commencement Date: S. 192(Sch. 2 item 3) on 1.7.08: s. 2(2) Current State: This information relates only to the provision/s amending the Fair Trading Act 1999 Funerals Act 2006, No. 77/2006 Assent Date: 10.10.06 Commencement Date: S. 90 on 1.11.07: s. 2(2) Current State: This information relates only to the provision/s amending the Fair Trading Act 1999 Justice Legislation (Further Amendment) Act 2006, No. 79/2006 Assent Date: 10.10.06 Commencement Date: Ss 6468 on 11.10.06: s. 2(1) Current State: This information relates only to the provision/s amending the Fair Trading Act 1999 Fair Trading and Consumer Acts Amendment Act 2007, No. 17/2007 Assent Date: 29.5.07 Commencement Date: Ss 313 on 30.5.07: s. 2(1) Current State: This information relates only to the provision/s amending the Fair Trading Act 1999 Fair Trading and Consumer Acts Further Amendment Act 2008, No. 2/2008 Assent Date: 11.2.08 Commencement Date: Ss 59 on 12.2.08: s. 2(1); ss 4, 11 on 1.7.08: Government Gazette 22.5.08 p. 1077; ss 3, 10 on 1.12.08: s. 2(4) Current State: This information relates only to the provision/s amending the Fair Trading Act 1999 Consumer Credit (Victoria) and Other Acts Amendment 2008, No. 6/2008 Assent Date: 18.3.08 Commencement Date: S. 27 on 19.3.08: s. 2(1) Current State: This information relates only to the provision/s amending the Fair Trading Act 1999 Relationships Act 2008, No. 12/2008 Assent Date: 15.4.08 Commencement Date: S. 73(1)(Sch. 1 item 22) on 1.12.08: s. 2(2) Current State: This information relates only to the provision/s amending the Fair Trading Act 1999 Fundraising Appeals and Consumer Acts Amendment Act 2009, No. 2/2009 Assent Date: 10.2.09 Commencement Date: Ss 22, 26 on 11.2.09: s. 2(1) Current State: This information relates only to the provision/s amending the Fair Trading Act 1999
293

Fair Trading and Other Acts Amendment Act 2009, No. 19/2009 Assent Date: 10.6.09 Commencement Date: Ss 317 on 11.6.09: s. 2(1) Current State: This information relates only to the provision/s amending the Fair Trading Act 1999 Statute Law Amendment (Charter of Human Rights and Responsibilities) Act 2009, No. 45/2009 Assent Date: 5.8.09 Commencement Date: Ss 79 on 6.8.09: s. 2 Current State: This information relates only to the provision/s amending the Fair Trading Act 1999 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009, No. 68/2009 Assent Date: 24.11.09 Commencement Date: S. 97(Sch. item 56) on 1.1.10: Government Gazette 10.12.09 p. 3215 Current State: This information relates only to the provision/s amending the Fair Trading Act 1999 Consumer Affairs Legislation Amendment Act 2010, No. 1/2010 Assent Date: 9.2.10 Commencement Date: S. 19 on 1.3.10: Government Gazette 25.2.10 p. 351 Current State: This information relates only to the provision/s amending the Fair Trading Act 1999 Credit (Commonwealth Powers) Act 2010, No. 11/2010 Assent Date: 30.3.10 Commencement Date: S. 48 on 1.4.10: Special Gazette (No. 114) 31.3.10 p. 1 Current State: This information relates only to the provision/s amending the Fair Trading Act 1999
294
Fair Trading Act 1999 No. 16 of 1999 Endnotes 3. Explanatory Details

1
S. 89(1): The obligation of the supplier under section 89(1) is subject to the provisions of the Bankruptcy Act 1966 of the Commonwealth and the Corporations Law.
295

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Version No.

Fair Trading Act 1999

Division 2Application of Part

Division 4General 32S 32SA 32T 32TA

Division 2Consequences of frustration of contract

Division 3General 32ZL 32ZM 32ZN 32ZO

Division 2Information standards 46 47 48

Division 3Recall of goods 49 50 51

Division 4Applications for review Division 5Warning notices

Division 2ATelephone marketing agreements

Division 3Licence suspension

Division 4Obtaining information, documents and evidence

284 284 285 287 289 290 290 291 295

ENDNOTES 1. General Information 2. Table of Amendments 3. Explanatory Details

Version No. 044

Fair Trading Act 1999

Fair Trading Act 1999 No. 16 of 1999 Part 1Preliminary

(e) to provide for codes of practice;

S. 3 def. of business day amended by No. 30/2003 s. 4(2).

Fair Trading Act 1999 No. 16 of 1999 Part 1Preliminary

S. 3 def. of cooling-off period amended by No. 106/2003 s. 3(2)(a).

Fair Trading Act 1999 No. 16 of 1999 Part 1Preliminary

Fair Trading Act 1999 No. 16 of 1999 Part 1Preliminary

S. 3 def. of hire-purchase agreement substituted by No. 2/2008 s. 3.

Fair Trading Act 1999 No. 16 of 1999 Part 1Preliminary

Fair Trading Act 1999 No. 16 of 1999 Part 1Preliminary

S. 3 def. of OFTBA Act repealed by No. 35/2000 s. 40(2)(c).

Fair Trading Act 1999 No. 16 of 1999 Part 1Preliminary

S. 3 def. of publisher inserted by No. 30/2003 s. 4(1).

Fair Trading Act 1999 No. 16 of 1999 Part 1Preliminary

Secretary means the Secretary to the Department of Justice;

Fair Trading Act 1999 No. 16 of 1999 Part 1Preliminary

telephone marketing agreement has the meaning given by section 67A;

Fair Trading Act 1999 No. 16 of 1999 Part 1Preliminary

S. 4(2) amended by No. 45/2009 s. 7(1).

S. 4(2A) inserted by No. 45/2009 s. 7(2).

Fair Trading Act 1999 No. 16 of 1999 Part 1Preliminary

Fair Trading Act 1999 No. 16 of 1999 Part 2Unfair Practices

PART 2UNFAIR PRACTICES

Fair Trading Act 1999 No. 16 of 1999 Part 2Unfair Practices

Fair Trading Act 1999 No. 16 of 1999 Part 2Unfair Practices

Fair Trading Act 1999 No. 16 of 1999 Part 2Unfair Practices

Fair Trading Act 1999 No. 16 of 1999 Part 2Unfair Practices

Fair Trading Act 1999 No. 16 of 1999 Part 2Unfair Practices

Fair Trading Act 1999 No. 16 of 1999 Part 2Unfair Practices

Fair Trading Act 1999 No. 16 of 1999 Part 2Unfair Practices

Fair Trading Act 1999 No. 16 of 1999 Part 2Unfair Practices

Fair Trading Act 1999 No. 16 of 1999 Part 2Unfair Practices

Fair Trading Act 1999 No. 16 of 1999 Part 2Unfair Practices

S. 12 amended by No. 30/2003 s. 6(1)(a)(b).

Fair Trading Act 1999 No. 16 of 1999 Part 2Unfair Practices

Fair Trading Act 1999 No. 16 of 1999 Part 2Unfair Practices

Fair Trading Act 1999 No. 16 of 1999 Part 2Unfair Practices

S. 16(c) amended by No. 30/2003 s. 6(2)(a).

(c) 600 penalty units, in the case of a natural person; or

Fair Trading Act 1999 No. 16 of 1999 Part 2Unfair Practices

S. 17(1) amended by No. 30/2003 s. 6(2)(a)(b).

S. 17(2) amended by No. 30/2003 s. 6(2)(a)(b).

Fair Trading Act 1999 No. 16 of 1999 Part 2Unfair Practices

Fair Trading Act 1999 No. 16 of 1999 Part 2Unfair Practices

S. 18(2) repealed by No. 30/2003 s. 7(3).

Fair Trading Act 1999 No. 16 of 1999 Part 2Unfair Practices

20 Misleading representations about certain business activities

S. 20(2) amended by No. 30/2003 s. 6(1)(a)(b).