Fair Trading (Amendment) Act 2003 (Vic)
Fair Trading (Amendment) Act 2003
Act No. 30/2003
TABLE OF PROVISIONS
Section Page PART 1—PRELIMINARY 1
1. Purposes 1 2. Commencement 3
PART 2—AMENDMENTS TO THE FAIR TRADING ACT 1999 4
3. Purposes 4 4. Definitions 4 5. New section 6 substituted 6
6. Extra-territorial application of this Act 6
6. Amendment to penalty provisions in Part 2 6 7. Referral selling 6 8. Pyramid selling 7 9. Right to payment for unauthorised entry or advertisement 7 10. Address to be included in documents 8 11. Insertion of new Part 2A 10 PART 2A—IMPLIED CONDITIONS AND WARRANTIES IN CERTAIN CONTRACTS OF SUPPLY 10 Division 1—Interpretation 10
32A. Definitions 10 32B. What are conditions and warranties? 11 32BA. What are antecedent negotiations? 11 32C. When is a person "aware" of a fact, matter or circumstance? 12
Division 2—Application of Part 12
32CA. Application of Part 12 32D. This Part applies to certain kinds of contracts 13 32DA. This Part does not apply to certain kinds of contracts 13 32E. How is "cash price" determined for contracts generally? 14 32EA. How is "cash price" determined for leases of goods? 16 32EB. Presumption that this Part applies to supply 16 32F. Application of Part to mixed contracts 17 32FA. Application of Goods Act 1958 to contracts of supply 17
i
Section Page
Division 3—Supply of Goods or Services 18
32G. Terms implied in contracts as to right to supply 18 32GA. Transfer of limited interest in goods 19 32GB. Terms implied in leases as to right to hire 20 32H. Supply of goods by description 21 32HA. Supply of goods by sample 21 32I. Merchantable quality of goods supplied 22 32IA. Fitness of goods for purpose 23 32J. Implied conditions in supply of services 23 32JA. Fitness of services for purpose 24 32K. Supply of services by demonstration 25 32KA. Terms implied in contracts of supply of both services and goods 26 32L. Contract cannot exclude this Part 27 32LA. Contract cannot exclude liability for damages 27 32M. Penalties for including void provisions 28
32MA. Limitation of liability generally 29 32N. Limitation of liability in relation to supply of
recreational services 31 32NA.
Exemption from waiver form requirement 34 32NB. Supplier to have reasonable opportunity to make good
title 36 32O.
Acceptance of goods 36 32OA.
Rescission for innocent misrepresentation 38 32P.
Discharge or rescission of contract of supply of goods 39 32PA.
When does a discharge or rescission have effect? 40 32Q. Liability of supplier and person conducting antecedent
negotiations 41 32QA.
Indemnity for supplier or dealer 43 32R.
Certain contracts or provisions void 43 32RA. Penalty for including void provision relating to
antecedent negotiations 44 Division 4—General 44 32S. Implied terms do not negative express terms unless
inconsistent 44 32SA.
Limit of liability of guarantors 44 32T.
Limit of liability under security 47 32TA.
Contract of supply not illegal etc. 48
12. Insertion of new Part 2B 48 PART 2B—UNFAIR TERMS IN CONSUMER CONTRACTS 48
32U. Definitions 48 32V. Application of Part 49 32W. What is an unfair term? 49
ii
Section Page
32X. Assessment of unfair terms 49 32Y. Effect of unfair term 51 32Z. Offences relating to prescribed unfair terms 51 32ZA. Injunctions to prevent continued use of unfair terms 52 32ZB. Director may require the supply of information 52 32ZC. Declaration by the Tribunal 54 32ZD. Advisory opinion by the Tribunal 54
13. Interim ban order 55 14. Permanent or fixed term ban order 55 15. General power to make permanent ban order or fixed term ban order 55 16. New section 41 substituted 57 41. When does a permanent ban order or a fixed term ban
order take effect? 57
17. Notice of order 58 18. New section 43 substituted 58 43. Revocation or amendment of permanent ban order or
fixed term ban order 58 19. Offence to contravene permanent ban order or fixed term ban
order 58 20. Loss, injury or damage arising from a contravention of this
Division 58 21.
Compulsory recall 58 22.
Review of ban order or compulsory recall notice 59 23.
Off-Business-Premises Sales 59 24.
Application 59 25.
What is a contact sales agreement? 60 26.
Requirements for contact sales agreements 60 27.
New sections 62A, 62B, 62C, 62D and 62E inserted 61
62A. Duty to obtain prior consent to visit 61 62B. Duty not to remain on premises for long periods 63 62C. Duty to leave premises 64 62D. Duty to produce identification 64 62E. Duty to inform 65 28.
When can the purchaser cancel the agreement? 66 29.
What can the supplier charge on cancellation? 67 30.
Requirements for non-contact sales agreements 67 31.
When can the purchaser cancel the agreement? 68 32.
Sections 76 and 77 repealed 68 33.
New section 80 substituted 68
80. Prohibition on payment for services during cooling-off
period 68
34. Statement of lay-by terms 69 35. New section 84A inserted 69
84A. Lay-by goods must be available 69
36. Cancellation of lay-by by purchaser 69 37. Cancellation where business closes 70
iii
Section Page
38. Cancellation charge must not exceed a reasonable amount 70 39. Director of Consumer Affairs Victoria 70 40. Functions and powers of the Director 71 41. Part 8 headings amended 71 42. Conciliation 72 43. Power of the Director to institute and defend proceedings 72 44. Proceedings and costs 72 45. New Divisions 2, 3 and 4 inserted in Part 8 73 Division 2—Suppliers 73
106A. Substantiation of claims 73 106B. "Show cause" notice 74
Division 3—Licence Suspension 77
106C. Definitions 77 106D. Director may suspend licence 78 106E. Effect of suspension 80 106F. Lapsing or continuation of suspension 82 106G. Extension of period 83 106H. Right of review 84 Division 4—Obtaining Information, Documents and
Evidence 84
106I. Power to obtain information, documents and evidence 84 106J. Powers in relation to documents 86 106K. Copies of seized documents 87 106L. Retention and return of seized documents 87 106M. Magistrates' Court may extend 3 month period 88 106N. Complaints 89 106O. Service of documents 89 106P. Confidentiality 89
46. Consumer and trader disputes 90 47. Definition of consumer and trader dispute 90 48. New section 107A inserted 91
107A. What is a small claim? 91
49. Settlement of consumer and trader disputes 91 50. Exclusion of other jurisdiction 92 51. New sections 112A and 112B inserted 92
112A. Small claim commenced in a court 92 112B. Small Claims Suspense Account 93
52. New section 113A inserted 94
113A. Tribunal may order the provision of information 94
53. Publisher to produce information 94 54. Emergency entry 95 55. New section 129 substituted 95
129. Magistrates' Court may extend 3 month period 95
iv
Section Page
56. New section 144 substituted 96
144. Conduct by officers, employees or agents 96
57. Repeal of section 145 98 58. New section 145 inserted 99
145. Interpretation 99
59. New sections 151A, 151B and 151C inserted 99
151A. Cease trading injunctions 99 151B. Interim cease trading injunctions 101 151C. Power to rescind or vary cease trading injunctions 101
60. Defences 101 61. Orders against persons found to have contravened this Act 102 62. Actions for damages 102 63. New Division 3 inserted in Part 11 103 Division 3—Infringement Notices 103
160A. Power to serve a notice 103 160B. Form of notice 103 160C. Late payment of penalty 104 160D. Withdrawal of notice 105 160E. Payment expiates offence 105 160F. Application of penalty 106 160G. Prosecution after service of infringement notice 106 160H. Enforcement of infringement penalty 107
64. New section 161A inserted 107
161A. Bills and receipts 107
65. New section 162A inserted 109
162A. Public warning statements 109
66. New section 163 substituted 110
163. Consumer documents to be clear 110
67. Supreme Court—limitation of jurisdiction 111 68. Amendment of regulation-making powers 111 69. New Schedule 2 substituted 112 70. Amendment to Schedule 3 114 71. Further amendment to Schedule 3 116
PART 3—REPEALS AND AMENDMENTS 117
72. Repeal of the Small Claims Act 1973 117 73. Amendment to section 97A of the Goods Act 1958 117 74. New section 97B inserted into the Goods Act 1958 117
97B. Exemption from waiver form requirement 117
75. Repeal of Part IV of the Goods Act 1958 119 76. New Part VI inserted in the Goods Act 1958 119 PART VI—TRANSITIONAL AND SAVING 119 122. Contracts to which Part IV of the Goods Act 1958 will
still apply 119
v
Section Page 77. New Part 3 inserted in the Business Licensing Authority Act
1998 119 PART 3—LICENCE SUSPENSION 119
20. Definitions 119 21. Authority may suspend licence 121 22. Effect of suspension 123 23. Lapsing or continuation of suspension 125 24. Extension of period 126 25. Right of review 127 78.
Amendment to the Interpretation of Legislation Act 1984 127 79. New Part 7AA inserted in Schedule 1 to the Victorian
Civil and Administrative Tribunal Act 1998 127 80. Repeal of Part 18 of Schedule 1 to the Victorian Civil and
Administrative Tribunal Act 1998 129 81.
Amendments to the Administrative Law Act 1978 130 82.
Amendments to the Building Act 1993 130 83.
Amendment to the Co-operative Housing Societies Act 1958 131 84.
Amendments to the Domestic Building Contracts Act 1995 131 85.
Amendments to the Electricity Industry Act 2000 133 86.
Amendment to the Fundraising Appeals Act 1998 133 87.
Amendments to the Gas Industry Act 2001 133 88.
Amendments to the Partnership Act 1958 134 89.
New section 79G inserted in the Partnership Act 1958 134
79G. Actions commenced by Commissioner for Corporate
Affairs 134
90. Amendment to the Petroleum Retail Selling Sites Act 1981 135 91. Amendment to the Residential Tenancies Act 1997 136
═══════════════
ENDNOTES 137
vi
Victoria
No. 30 of 2003
Fair Trading (Amendment) Act 2003†
[Assented to 27 May 2003]
The Parliament of Victoria enacts as follows:
PART 1—PRELIMINARY
1. Purposes
The main purposes of this Act are—
(a) to amend the Fair Trading Act 1999 to increase consumer protection under that Act and in particular— (i) to provide for statutory conditions and warranties to apply in certain contracts of supply of goods or services;
Fair Trading (Amendment) Act 2003
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| s. 1 | Part 1—Preliminary |
(ii) to provide for unfair terms in consumer contracts to be void;
(iii) of enforcement in relation to the
to give the Director additional powers licence holders;
(iv) to improve the operation of the pyramid selling provisions;
(v) to provide for details that must be the supply of goods or services;
(vi) to provide for the making of fixed term ban orders;
(vii) to further regulate contact sales agreements;
(viii) to provide for a procedure for small claims;
(ix) to increase penalties for offences under that Act;
(x) to improve the general operation of that Act;
(b) to repeal the Small Claims Act 1973;
(c) to repeal Part IV of the Goods Act 1958;
(d)
to amend the Business Licensing Authority Act 1998 to give the Authority additional powers of enforcement in relation to the conduct of business licence holders;
(e)
to amend the Interpretation of Legislation Act 1984 to clarify the requirements for the tabling of incorporated documents;
Fair Trading (Amendment) Act 2003
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Part 1—Preliminary s. 2
(f)
to amend the Partnership Act 1958 to transfer the role of the Commissioner for Corporate Affairs in relation to limited partnerships to the Director.
2. Commencement
(1) This Part and sections 3(1), 3(3), 4 to 10, 13 to 25,
39 to 44, 53, 60, 61, 65, 70, 73, 74, 78 and 82 to
91 come into operation on the day after the day on
which this Act receives the Royal Assent.
(2) Subject to sub-section (3), the remaining
provisions of this Act come into operation on a
day or days to be proclaimed.
(3) If a provision referred to in sub-section (2) does
not come into operation before 31 December
2003, it comes into operation on that day.
__________________
Fair Trading (Amendment) Act 2003
Act No. 30/2003
| s. 3 | Part 2—Amendments to the Fair Trading Act 1999 |
PART 2—AMENDMENTS TO THE FAIR TRADING ACT 1999
3. Purposes
| See: | (1) After section 1(a) of the Fair Trading Act 1999 |
| Act No. | |
| 16/1999 | insert— |
| and | |
| amending | "(aa) to protect consumers;". |
Act Nos 35/2000, 44/2001 and | (2) After section 1(b) of the Fair Trading Act 1999 |
| 86/2001. | insert— |
LawToday: "(ba) to provide for statutory conditions and | |
| gov.au | warranties in consumer contracts; |
(bb) to provide for unfair terms in consumer contracts to be void;".
(3) In section 1(f) of the Fair Trading Act 1999, for
"Consumer and Business Affairs" substitute
"Consumer Affairs Victoria".
4. Definitions
(1) In section 3 of the Fair Trading Act 1999 insert
the following definitions—
' "business licensing Act" has the same meaning
as in the Business Licensing Authority Act
1998;
"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;
"fixed term ban order" means a fixed term ban order under section 39 or 40;
Fair Trading (Amendment) Act 2003
Act No. 30/2003
Part 2—Amendments to the Fair Trading Act 1999 s. 4 "post box" means post office box, document exchange, mail collection agency or mail forwarding agency;
"public holiday" has the same meaning as in the
Public Holidays Act 1993;
"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);
"Secretary" means the Secretary to the Department of Justice;'.
(2) In section 3 of the Fair Trading Act 1999, in the
definition of "business day" for paragraph (b)
substitute—
"(b) a public holiday;".
(3) In section 3 of the Fair Trading Act 1999, in the
definition of "Director" for "Consumer and
Business Affairs" substitute "Consumer Affairs
Victoria".
(4) In section 3 of the Fair Trading Act 1999, for the
definition of "unsolicited goods" substitute—
' "unsolicited goods" means goods supplied to a
person—
(a)
without any request made by or on behalf of the person; or
(b) on approval;'.
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| s. 5 | Part 2—Amendments to the Fair Trading Act 1999 |
5. New section 6 substituted
For section 6 of the Fair Trading Act 1999 substitute—
"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.".
6. Amendment to penalty provisions in Part 2
(1) In sections 10, 11, 12, 13, 19(1), 20(1), 20(2), 21(1) and 23(3) of the Fair Trading Act 1999—
(a)
for "240 penalty units" substitute "600 penalty units";
(b)
for "600 penalty units" substitute "1200 penalty units".
(2) In sections 16, 17(1), 17(2), 18(1) and 30(1) of the
Fair Trading Act 1999—
(a) for "120 penalty units" substitute "600 penalty units"; (b) for "240 penalty units" substitute "1200 penalty units".
(3) In sections 14(1), 15, 22(1), 22(2), 23(1), 24(1) and 27(1) of the Fair Trading Act 1999—
(a)
for "120 penalty units" substitute "240 penalty units";
(b)
for "240 penalty units" substitute "600 penalty units".
7. Referral selling
(1) In section 18(1) of the Fair Trading Act 1999,
for "supplier" (where three times occurring)
substitute "person".
Fair Trading (Amendment) Act 2003
Act No. 30/2003
Part 2—Amendments to the Fair Trading Act 1999 s. 8 (2) In section 18(1)(b) of the Fair Trading Act 1999, for "persons" substitute "purchasers".
(3) Section 18(2) of the Fair Trading Act 1999 is repealed.
8. Pyramid selling
(1) After section 22(2) of the Fair Trading Act 1999
insert—
"(2A) Sub-sections (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 130 of the Magistrates' Court Act
1989 provides that if an Act creates an offence and provides any exception to the offence and the defendant wishes to rely on the exception, the defendant must present evidence that
suggests a reasonable possibility of the
existence of facts that, if they existed, would
establish the exception.".
(2) In section 22(3) of the Fair Trading Act 1999, in the definition of "pyramid selling scheme"—
(a)
for "services; and" at the end of paragraph (b) substitute "services—"; and
(b) paragraph (c) is repealed.
9. Right to payment for unauthorised entry or advertisement
(1) For section 27(5)(a)(i) of the Fair Trading Act 1999 substitute—
"(i) a large proprietary company or a subsidiary of such a company or a listed corporation or a subsidiary of such a corporation; or".
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| s. 10 | Part 2—Amendments to the Fair Trading Act 1999 |
| (2) In section 27(6) of the Fair Trading Act 1999— |
(a) insert the following definitions—
' "large proprietary company" has the
same meaning as in the Corporations
Act;
"listed corporation" has the same meaning as in the Corporations Act;
"subsidiary" has the same meaning as in the Corporations Act.'.
(b) the definition of "publisher" is repealed.
10. Address to be included in documents
(1) In section 29(1)(c) of the Fair Trading Act 1999, after "services" insert "in trade or commerce".
(2) For section 29(1)(f) of the Fair Trading Act 1999
substitute—
"(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.
Fair Trading (Amendment) Act 2003
Act No. 30/2003
Part 2—Amendments to the Fair Trading Act 1999 s. 10 (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.".
(3) For section 29(2) of the Fair Trading Act 1999 substitute—
'(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 referred to in sub-section (1)(f)(ii) or (iii), is not required to comply with sub-section (1)(f) if the
person has provided his or her name and full address to the publisher of the publication in which the document, statement or
advertisement is to appear.(4) A publisher must record and keep all
information provided to the publisher under
sub-section (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.(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).'.
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| s. 11 | Part 2—Amendments to the Fair Trading Act 1999 |
11. Insertion of new Part 2A
After Part 2 of the Fair Trading Act 1999 insert—
'PART 2A—IMPLIED CONDITIONS AND WARRANTIES IN CERTAIN CONTRACTS OF
SUPPLY
Division 1—Interpretation
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;
Fair Trading (Amendment) Act 2003
Act No. 30/2003
Part 2—Amendments to the Fair Trading Act 1999 s. 11 "rescission" in relation to a contract of supply of goods or services means avoidance of the contract as from its
beginning.
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.
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.
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| s. 11 | Part 2—Amendments to the Fair Trading Act 1999 |
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. (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 2—Application 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.
Fair Trading (Amendment) Act 2003
Act No. 30/2003
Part 2—Amendments to the Fair Trading Act 1999 s. 11 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.
(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.
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
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| s. 11 | Part 2—Amendments to the Fair Trading Act 1999 |
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.
(2) Sections 32NA, 32O, 32P and 32PA do not
apply to a contract of supply by way of lease
of goods.
(3) In sub-section (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 sub-section (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.
Fair Trading (Amendment) Act 2003
Act No. 30/2003
Part 2—Amendments to the Fair Trading Act 1999 s. 11 (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 inrelation 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 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 services—the 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.
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| s. 11 | Part 2—Amendments to the Fair Trading Act 1999 |
| 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 supplier—the 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 services—the 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 services—the value of the goods at that time.
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.
Fair Trading (Amendment) Act 2003
Act No. 30/2003
Part 2—Amendments to the Fair Trading Act 1999 s. 11 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.
(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.
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| s. 11 | Part 2—Amendments to the Fair Trading Act 1999 |
Division 3—Supply of Goods or Services
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.
Fair Trading (Amendment) Act 2003
Act No. 30/2003
Part 2—Amendments to the Fair Trading Act 1999 s. 11 (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 sub-section (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
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(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(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 have—that third person; or
(iii) the supplier or that third person
otherwise than under a charge or
encumbrance subject to which theanyone claiming through or under goods.
(3) This section does not apply to a contract of supply of goods by way of lease.
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.
Fair Trading (Amendment) Act 2003
Act No. 30/2003
Part 2—Amendments to the Fair Trading Act 1999 s. 11
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.
32HA. Supply of goods by sample
(1) The conditions set out in sub-section (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 sub-section (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 sub-section (1) or (2)
are—
(a)
an implied condition that the goods will correspond with the sample in quality; and
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(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.
(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.
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 sub-section (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.
Fair Trading (Amendment) Act 2003
Act No. 30/2003
Part 2—Amendments to the Fair Trading Act 1999 s. 11 (3) The condition in a contract of supply of
goods referred to in sub-section (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 made—defects that the examination ought to have revealed.
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
(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) Sub-section (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
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(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, the purchaser expressly
or by implication—
(a) makes known to the supplier; or
(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) Sub-section (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.
Fair Trading (Amendment) Act 2003
Act No. 30/2003
Part 2—Amendments to the Fair Trading Act 1999 s. 11 32K. Supply of services by demonstration
(1) The conditions set out in sub-section (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 sub-section (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. (3) The conditions implied in a contract of
supply of services under sub-section (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—
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(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) Sub-section (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.
(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
sub-section (1), a reference in that sub- section to a supply of goods includes a reference to the supply of materials in connection with a supply of services.
Fair Trading (Amendment) Act 2003
Act No. 30/2003
Part 2—Amendments to the Fair Trading Act 1999 s. 11
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—
(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 thatprovision.
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 thecontract 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
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(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
(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.
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
Fair Trading (Amendment) Act 2003
Act No. 30/2003
Part 2—Amendments to the Fair Trading Act 1999 s. 11 natural person or 120 penalty units, in the
case of a body corporate.
32MA. Limitation of liability generally
(1) Subject to sub-sections (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;
(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) Sub-section (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 sub-
section (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
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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 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 (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) circumstances under which, the
the amount for which, and the 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.
Fair Trading (Amendment) Act 2003
Act No. 30/2003
Part 2—Amendments to the Fair Trading Act 1999 s. 11 (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.
32N. Limitation of liability in relation to supply of recreational services
(1) Subject to sub-section (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
(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) Sub-section (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
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(b) the exclusion, restriction or limited to liability for death or personal injury; and
(c) the term—
(i) contains the prescribed particulars 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 signed by the purchaser prior to the supply of the recreational services. (3) Despite sub-section (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 sub-section (2) if—
(a) the person has done or omitted to do something in relation to the supply of those recreational services that but for sub-section (1) would— (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
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Act No. 30/2003
Part 2—Amendments to the Fair Trading Act 1999 s. 11
(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) (including the aggravation,
an injury of a natural person injury of the individual); or
(b) the contraction, aggravation,
acceleration or recurrence of a
disease of a natural person; or(c) 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 orthe coming into existence, the harm or disadvantage to—
(i) the person; or
(ii) the community;
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"recreational services" means services that consist of participation in—
(a)
a sporting activity or a similar leisure-time 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 sub-section (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) or (e).(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.
Fair Trading (Amendment) Act 2003
Act No. 30/2003
Part 2—Amendments to the Fair Trading Act 1999 s. 11 (4) The Governor in Council, on the
(5) An Order made under this section ceases to recommendation of the Minister, may, by vary or revoke an Order made under this section.
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 ensure that a copy of the Order is laid before each House of the Parliament.
(7) A failure to comply with sub-section (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 sub-section (6) of this section.
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| 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 thebreach unless—
(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 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.
Fair Trading (Amendment) Act 2003
Act No. 30/2003
Part 2—Amendments to the Fair Trading Act 1999 s. 11 (2) Sub-section (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) thing by reason of which the goods
cannot be returned to the supplier in
substantially the same state as theythe purchaser has not done any act or purchaser.
(3) Despite section 42 of the Goods Act 1958, the purchaser under a contract of supply of goods to which this sub-section 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
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1958 until the purchaser has so accepted
them after the delivery of the goods to the
purchaser after the repair or replacement.(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 32NA, 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.
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 supplierbefore, 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) Sub-section (1) applies whether or not the
misrepresentation has become a term of the
contract.
Fair Trading (Amendment) Act 2003
Act No. 30/2003
Part 2—Amendments to the Fair Trading Act 1999 s. 11 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) 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 21 days after discharging or rescinding the contract; and (b) goods are in the purchaser's possession
after the expiration of a period ofby the purchaser wilfully while the 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.
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(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 ofthe purchaser's use of the goods.
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 effectonly 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(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 treats the contract as at an end.
Fair Trading (Amendment) Act 2003
Act No. 30/2003
Part 2—Amendments to the Fair Trading Act 1999 s. 11 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 thesupplier) confers on the purchaser—
(a) as against the supplier, the same right to 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. (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—
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(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 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 sub-sections (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 antecedentnegotiations were conducted.
(4) Nothing in this section prevents a statement
being both a representation and a warranty.(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.
Fair Trading (Amendment) Act 2003
Act No. 30/2003
Part 2—Amendments to the Fair Trading Act 1999 s. 11 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) antecedent negotiations were conducted
by a dealer on whose behalf any 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.
Fair Trading (Amendment) Act 2003
Act No. 30/2003
| s. 11 | Part 2—Amendments to the Fair Trading Act 1999 |
| 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 section32R is void.
Penalty: 60 penalty units, in the case of a
natural person.
120 penalty units, in the case of a
body corporate.Division 4—General
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.
Fair Trading (Amendment) Act 2003
Act No. 30/2003
Part 2—Amendments to the Fair Trading Act 1999 s. 11 (2) Subject to sub-section (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) Sub-section (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 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 tothe person—
(a) for fee or reward; or
Fair Trading (Amendment) Act 2003
Act No. 30/2003
| s. 11 | Part 2—Amendments to the Fair Trading Act 1999 |
(b) organisation (including a
government or government
agency, a body corporate or aon behalf of another person or an 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 goodsor 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;
Fair Trading (Amendment) Act 2003
Act No. 30/2003
Part 2—Amendments to the Fair Trading Act 1999 s. 11 "spouse" of a person means a person to whom the person is married.
(5) For the purposes of the definition of "domestic partner" in sub-section (4)—
(a) 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 inin determining whether persons are Act 1958 as may be relevant in a particular case;
(b)
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 sumof—
(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 pledge, lien or other security.
Fair Trading (Amendment) Act 2003
Act No. 30/2003
| s. 12 | Part 2—Amendments to the Fair Trading Act 1999 |
| 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.
(2) If a supplier commits an offence referred to
in sub-section (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.'.
12. Insertion of new Part 2B
Before Part 3 of the Fair Trading Act 1999 insert—
'PART 2B—UNFAIR TERMS IN CONSUMER
CONTRACTS
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 besupplied under the contract;
"consumer contract" includes a standard
form contract;
"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
Fair Trading (Amendment) Act 2003
Act No. 30/2003
Part 2—Amendments to the Fair Trading Act 1999 s. 12 differs from other contracts used in that
industry;
"unfair term" has the meaning given by
section 32W and includes a prescribed
unfair term.
32V. Application of Part
This Part does not apply to contractual
terms—
(a)
contained in a contract to which the Consumer Credit (Victoria) Act 1995 applies;
(b)
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, contrary to the
requirements of good faith and in all the
circumstances, it causes a significant
imbalance in the parties' rights and
obligations arising under the contract to thedetriment 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 theobject or effect of—
(a)
permitting the supplier but not the consumer to avoid or limit performance of the contract;
Fair Trading (Amendment) Act 2003
Act No. 30/2003
| s. 12 | Part 2—Amendments to the Fair Trading Act 1999 |
(b) permitting the supplier but not the consumer to terminate the contract; (c) penalising the supplier but not the consumer 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; (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) determine whether the contract had
permitting the supplier unilaterally to 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 contract.
Fair Trading (Amendment) Act 2003
Act No. 30/2003
Part 2—Amendments to the Fair Trading Act 1999 s. 12 32Y. Effect of unfair term
(1) An unfair term in a consumer contract is
void.
(2) A prescribed unfair term in a 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.
(4) Sub-section (1) applies to any consumer
contract entered into on or after the
commencement of section 12 of the Fair
Trading (Amendment) Act 2003.
(5) Sub-section (2) applies to any standard form contract whether entered into before or after the term is prescribed.
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.
Fair Trading (Amendment) Act 2003
Act No. 30/2003
| s. 12 | Part 2—Amendments to the Fair Trading Act 1999 |
| 32ZA. Injunctions to prevent continued use of |
unfair terms
(1) The Director may apply to 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. (2) 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) 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
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 and has the same rights and obligations in the proceedings as had the Director of Consumer and Business Affairs.
tribunal, then, on and after that commencement,
the Director of Consumer Affairs Victoria is
substituted for the Director of Consumer and
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.
Fair Trading (Amendment) Act 2003
Act No. 30/2003
| s. 71 | Part 2—Amendments to the Fair Trading Act 1999 |
(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.".
71. Further amendment to Schedule 3
At the end of Schedule 3 to the Fair Trading Act
1999 insert—
"11. Continuation of existing small claims
(1) Despite the repeal of the Small Claims Act
(Amendment) Act 2003, the Small Claims
1973 by section 72 of the Fair Trading 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.".__________________
Fair Trading (Amendment) Act 2003
Act No. 30/2003
Part 3—Repeals and Amendments s. 72
PART 3—REPEALS AND AMENDMENTS
72. Repeal of the Small Claims Act 1973
See:
The Small Claims Act 1973 is repealed. Act No.
8486/1973.Reprint No. 5
as at1 July 1998
andamending
Act Nos101/1998 and
17/1999.LawToday: dpc.vic. gov.au See:
73. Amendment to section 97A of the Goods Act 1958 Act No.
6265/1958.
For section 97A(2)(c) of the Goods Act 1958 Reprint No. 9 substitute— as at
8 October"(c) the term—
1998 and amending
(i) contains the prescribed particulars (if any) and is in the prescribed form (if
Act Nos
27/2001,
44/2001 and
any); or 49/2002.
LawToday:
(ii) is specified in, or is of a class of term specified in, an Order made under
dpc.vic.
section 97B; and". gov.au
74. New section 97B inserted into the Goods Act 1958
After section 97A of the Goods Act 1958 insert—
'97B. 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 sale of
recreational services, or a class of such term,
Fair Trading (Amendment) Act 2003
Act No. 30/2003
| s. 74 | Part 3—Repeals and Amendments |
does not need to comply with the
requirements of section 97A(2)(c)(i) or (e).(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
(5) An Order made under this section ceases to recommendation of the Minister, may, by vary or revoke an Order made under this section.
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 ensure that a copy of the Order is laid before each House of the Parliament.
(7) A failure to comply with sub-section (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.
Fair Trading (Amendment) Act 2003
Act No. 30/2003
Part 3—Repeals and Amendments s. 75 (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 sub-section (6) of this section.'.
75. Repeal of Part IV of the Goods Act 1958
Part IV of the Goods Act 1958 is repealed.
76. New Part VI inserted in the Goods Act 1958
After Part V of the Goods Act 1958 insert—
'PART VI—TRANSITIONAL AND SAVING
122. Contracts to which Part IV of the Goods Act 1958 will still apply
(1) Despite the repeal of Part IV by section 75 of
the Fair Trading (Amendment) Act 2003, that Part, as in force immediately before its repeal, continues to apply to a sale of goods or services or lease of goods entered into
before the commencement of that section. (2) In this section "sale" and "lease" have the
same meanings as they had in Part IV
immediately before its repeal.'.
77. New Part 3 inserted in the Business Licensing Authority Act 1998
See:
After Part 2 of the Business Licensing Authority Act No. Act 1998 insert— 49/1998
and
amending
'PART 3—LICENCE SUSPENSION Act Nos
46/1998 and
17/1999.20. Definitions
LawToday:
In this Part—
dpc.vic. gov.au
Fair Trading (Amendment) Act 2003
Act No. 30/2003
| s. 77 | Part 3—Repeals and Amendments |
"licence" means—
(a) a licence issued or granted under— (i) 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 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(d) an approval under Division 5 of Part 3 of the Prostitution Control Act 1994; or (e) a registration granted under Part 4 (Victoria) Act 1995; or
(f) broking within the meaning of
a right to engage in finance (Victoria) Act 1995; or
(g)
a right to act as an introduction agent within the meaning of the Introduction Agents Act 1997; or
Fair Trading (Amendment) Act 2003
Act No. 30/2003
Part 3—Repeals and Amendments s. 77
(h) registration under the Second-
a registration or endorsement of 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 21; and
(b) ending on—
(i) the lapsing of the suspension 23; or
(ii) the date of an order referred to in section 23(2) relating to the suspension of the licence;
"licensee", in relation to a licence, means
the person who is the holder of the
licence.
21. Authority may suspend licence
(1) Despite anything to the contrary in a
business licensing Act or any other Act or law other than this Part, the Authority may suspend a licence by notice in writing issued
to the licensee.(2) The Authority may only suspend a licence
under this section if the Authority 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
Fair Trading (Amendment) Act 2003
Act No. 30/2003
| s. 77 | Part 3—Repeals and Amendments |
(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 sub-section (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) of a licensee that is a body
at the last known business address 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.
(4) Despite sub-section (3)(a)(i), if, on the
application of the Authority, it appears to the 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
Fair Trading (Amendment) Act 2003
Act No. 30/2003
Part 3—Repeals and Amendments s. 77 (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.
22. 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 Part.
(2) If a notice is issued under this Part 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.(3) If a notice is issued under this Part
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.
Fair Trading (Amendment) Act 2003
Act No. 30/2003
| s. 77 | Part 3—Repeals and Amendments |
(4) If a notice is issued under this Part
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 thatsuspending a licensee's right to participate in customer service capacity by a motor car trader for the licence suspension period.
(5) If a notice is issued under this Part
suspending an approval under Division 5 of 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 Part
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 Part
finance broking within the meaning of
suspending a licensee's right to engage in 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.
(8) If a notice is issued under this Part
introduction agent within the meaning of the
suspending a licensee's right to act as an is deemed to be disqualified from acting as an introduction agent for the purposes of that Act for the licence suspension period.
Fair Trading (Amendment) Act 2003
Act No. 30/2003
Part 3—Repeals and Amendments s. 77 (9) If a notice is issued under this Part
of registration of a licensee under the
suspending the registration or endorsement Act 1989, the registration or endorsement is deemed to be suspended for the purposes of that Act for the licence suspension period.
23. Lapsing or continuation of suspension
(1) A suspension under this Part 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. (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 Authority must not serve another notice on the licensee under this Part for a period of 6 months from the date of service of the first notice.
Fair Trading (Amendment) Act 2003
Act No. 30/2003
| s. 77 | Part 3—Repeals and Amendments |
(4) The power conferred by this Part is in
addition to and does not limit or displace a
power conferred on the Authority 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 24 extending that period, that extended period.
24. Extension of period
(1) The Director, at the request of the Authority, may apply to the Tribunal or the court within 14 days after the service of a notice under
section 21 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 made or proceedings
commenced for the purposes of section 23(1)
and (2).(2) On an application under sub-section (1), the Tribunal or court—
(a) application or proceedings referred to
must consider the likelihood that an 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.
Fair Trading (Amendment) Act 2003
Act No. 30/2003
Part 3—Repeals and Amendments s. 78 (4) The Tribunal or court may adjourn any application under this section to enable notice of the application to be given to any
person.
25. Right of review
A licensee may apply to the Tribunal for a
review of the decision to issue a notice under
this Part.'.78. Amendment to the Interpretation of Legislation Act 1984
See:
In section 32(4)(a) of the Interpretation of Act No. Legislation Act 1984, for "must cause—" insert 10096/1984. Reprint No. 7 "must, if the subordinate instrument is itself as at required to be laid before each House of the 19 June 2002.
LawToday:Parliament, cause—".
dpc.vic.gov.au 79. New Part 7AA inserted in Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998
See:
After Part 7 of Schedule 1 to the Victorian Civil Act No. and Administrative Tribunal Act 1998 insert— 53/1998.
Reprint No. 2
as at
'PART 7AA—FAIR TRADING ACT 1999 15 July 2001
and
28AA. What is a "small claim"? amending
Act Nos
In this Part "small claim" has the meaning that
98/2000, 2/2001,
it has in Part 9 of the Fair Trading Act 1999. 68/2001,
28BB. Representation
96/2001, 36/2002,
(1) A party to a proceeding relating to a small 41/2002 and
45/2002.claim may be represented by a professional LawToday: advocate only if—
dpc.vic.
(a) the Tribunal is satisfied that no other
party to the proceeding will be unfairly
disadvantaged if the representation is
allowed; andgov.au
Fair Trading (Amendment) Act 2003
Act No. 30/2003
| s. 79 | Part 3—Repeals and Amendments |
(b) either—
(i) all parties to the proceeding agree; or
(ii) the Tribunal directs that the representation be allowed.
(2) Section 62(1)(b) does not apply to a proceeding relating to a small claim.
28CC. Withdrawal of application
Despite section 74(1), a person who lodges an application relating to a small claim may withdraw that application without the leave of the Tribunal.
28DD. Tribunal cannot extend time for commencing
proceedings
Section 126(1) does not apply to a proceeding relating to a small claim.
28EE. Member of Tribunal can mediate
(1) Section 88(6) does not apply to a proceeding relating to a small claim.
(2) If the mediator is a member of the Tribunal a party may object to the mediator constituting the Tribunal (whether with or without others) for the purpose of hearing the proceeding. (3) An objection under sub-clause (2) must be
made to the Tribunal before or at the
commencement of the hearing.
28FF. Resolution of objection to certain members constituting the Tribunal
(1) If a party to a proceeding relating to a small
claim objects to the member who presided over
a compulsory conference in the proceeding, or
to a mediator in the proceeding, constituting the
Tribunal for the purpose of hearing the
proceeding (whether with or without others),
the Tribunal must determine whether or not the
member may continue to constitute the Tribunal
for that purpose.
Fair Trading (Amendment) Act 2003
Act No. 30/2003
Part 3—Repeals and Amendments s. 80 (2) For the purpose of making a determination under sub-clause (1), the Tribunal may be constituted (whether with or without others) by
the member against whom the objection was
made.
(3) Section 86(3) does not apply to a proceeding relating to a small claim.
28GG. Costs and security for costs
(1) The Tribunal cannot order costs in a proceeding relating to a small claim, except in a review of a determination under section 120 in respect of
such a proceeding.
(2) Section 79 does not apply to a review of a
determination under section 120 in respect of a
proceeding relating to a small claim.28HH. Reasons must be requested at time of decision
Despite anything to the contrary in section 117(2), the Tribunal is not obliged to give a person written reasons for an order made in a
proceeding relating to a small claim unless the person has made a request to the Tribunal for written reasons for orders that may be made in
the proceeding before or at the time of the
giving or notification of the Tribunal's decision
in the proceeding.'.
80. Repeal of Part 18 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998
Part 18 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 is repealed.
Fair Trading (Amendment) Act 2003
Act No. 30/2003
| s. 81 | Part 3—Repeals and Amendments |
81. Amendments to the Administrative Law Act 1978
| See: | (1) In section 4(3) of the Administrative Law Act | |
| Act No. | ||
| 9234/1978. | 1978, for "under the Small Claims Act 1973" | |
| Reprint No. 4 | ||
| as at | substitute "under Part 9 of the Fair Trading Act | |
| 1 October | 1999 in relation to a small claim". | |
| 1998 | ||
| and | (2) At the end of section 15 of the Administrative | |
| amending | ||
| Act Nos | Law Act 1978 insert— | |
| 52/1998 (as | ||
| "(2) It is the intention of section 4(3), as amended | ||
| amended by | ||
| 101/1998) and | ||
| 74/2000. | by the Fair Trading (Amendment) Act | |
| LawToday: | 2003, to alter or vary section 85 of the | |
| dpc.vic. | Constitution Act 1975.". | |
| gov.au |
82. Amendments to the Building Act 1993
| See: | (1) In sections 137B(4) and 137B(5) of the Building |
| Act No. | |
| 126/1993. | Act 1993, for "Consumer and Business Affairs" |
| Reprint No. 4 | |
| as at | substitute "Consumer Affairs Victoria". |
| 8 June 2001 | (2) In the heading to section 196A of the Building |
| and | |
| amending | Act 1993, for "Consumer and Business Affairs" |
| Act Nos | |
| 26/2001, | substitute "Consumer Affairs Victoria". |
| 30/2001, |
(3) In section 196A of the Building Act 1993, for
32/2001,
68/2001,
| 11/2002, | "Consumer and Business Affairs" substitute |
| 15/2002 and | "Consumer Affairs Victoria". |
| 36/2002. LawToday: dpc.vic. gov.au | |
| Fair Trading (Amendment) Act 2003 |
Act No. 30/2003
Part 3—Repeals and Amendments s. 83 83. Amendment to the Co-operative Housing Societies Act 1958
See:
In section 72B(2)(c)(iv) of the Co-operative Act No. Housing Societies Act 1958, for "Consumer and 6226/1958.
Reprint No. 8Business Affairs" substitute "Consumer Affairs as at Victoria". 11 October
2001.LawToday: dpc.vic. gov.au 84. Amendments to the Domestic Building Contracts Act 1995
See:
(1) For section 43D(2) of the Domestic Building Contracts Act 1995 substitute—
Act No.
91/1995.
Reprint No. 5"(2) The Director must not, under sub-section (1), institute or defend proceedings on behalf of a
as at
1 July 2002.LawToday:
building owner unless that building owner
dpc.vic.has given consent in writing. gov.au (3) After consent has been given under sub- section (2), the Director may institute or continue with a proceeding or defence on
behalf of a building owner even if the building owner revokes the consent.".
(2) In section 43E(1) of the Domestic Building Contracts Act 1995—
(a)
in paragraph (c) for "an amount" (where first occurring) substitute "subject to sub- sections (1A) and (1B), an amount";
(b)
in paragraph (e) for "the building owner" substitute "subject to sub-section (1A), the building owner".
Fair Trading (Amendment) Act 2003
Act No. 30/2003
| s. 84 | Part 3—Repeals and Amendments |
(3) After section 43E(1) of the Domestic Building Contracts Act 1995 insert—
"(1A) If the Director institutes, defends or continues proceedings on behalf of a building owner after the building owner
revokes the consent to the proceedings—
(a) the Director must compensate the building owner for— (i) any loss suffered as the result of the loss of any settlement offer made to the building owner; and
(ii) out-of-pocket expenses incurred by the building owner during the proceedings after the revocation of
consent; and
(b) the Director is liable to pay any amount awarded against the building owner in the proceedings.
(1B) If the Director institutes, defends or continues proceedings on behalf of a building owner after the building owner
revokes the consent to the proceedings or
defence, any amount recovered in the
proceedings (including any amount for costs)
that exceeds the amount payable to the
building owner under sub-section (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.".
Fair Trading (Amendment) Act 2003
Act No. 30/2003
Part 3—Repeals and Amendments s. 85
85. Amendments to the Electricity Industry Act 2000
See:
After section 35(7) of the Electricity Industry Act No. Act 2000 insert— 68/2000.
Reprint No. 1"(7A) If an agreement for the sale and supply of electricity is amended as a result of a
as at
13 June 2002.and
variation under sub-section (3) or (4) and the amending
Act No.agreement is a contact sales agreement 10/2002. within the meaning of the Fair Trading Act
LawToday:
1999, section 61(1)(g) of that Act does not dpc.vic. apply to that amendment.". gov.au
86. Amendment to the Fundraising Appeals Act 1998
See:
In section 3 of the Fundraising Appeals Act Act No. 1998, in the definition of "Director", for "of 78/1998.
Reprint No. 1Consumer and Business Affairs" substitute as at "within the meaning of the Fair Trading Act 1 January
20021999". and
amendingAct No. 23/2002.
LawToday:
dpc.vic. gov.au
87. Amendments to the Gas Industry Act 2001
See:
After section 42(7) of the Gas Industry Act 2001 Act No. insert— 31/2001.
Reprint No. 1"(7A) If an agreement for the sale and supply of gas is amended as a result of a variation
as at
2 July 2002.LawToday:
under sub-section (3) or (4) and the
dpc.vic.agreement is a contact sales agreement gov.au within the meaning of the Fair Trading Act
1999, section 61(1)(g) of that Act does not
apply to that amendment.".
Fair Trading (Amendment) Act 2003
Act No. 30/2003
| s. 88 | Part 3—Repeals and Amendments |
88. Amendments to the Partnership Act 1958
See: | (1) In section 49(1) of the Partnership Act 1958— (a) the definition of "Commissioner" is |
| Act No. 6330/1958. | |
| Reprint No. 5 | |
| as at | repealed; |
| 4 February |
1999 (b) insert the following definition—
| and | |
| amending | |
| Act Nos | ' "Director" means Director within the |
| 35/2000, | meaning of the Fair Trading Act |
| 27/2001, | |
| 44/2001 and | 1999;'. |
| 9/2002. | (2) In sections 49(2), 54(1), 54(2), 55(1), 55(2), 55(3), |
| LawToday: | |
| 56(1), 56(3), 56(4), 57(1), 57(2), 57(3), 57(4), | |
| dpc.vic. | |
| gov.au | 57(5), 58(1), 58(2), 58(3), 72(1), 72(2), 72(3), 78, 79(1), 79(2), 79A(1), 79A(2), 79C(1), 79C(2), 79C(3), 79D(1), 79D(3), 79D(4), 79D(5), 79D(6), 79E, 79F(1), 79F(2), 80(2), of the Partnership Act 1958, for "Commissioner" (wherever occurring) substitute "Director". |
(3) Insert the following heading to section 79F of the
Partnership Act 1958—
"Power of Director to refuse to register or
reject documents".
89. New section 79G inserted in the Partnership Act 1958
After section 79F of the Partnership Act 1958 insert—
"79G. Actions commenced by Commissioner for
Corporate Affairs
(1) Any act, matter or thing of a continuing
nature commenced under this Act or
regulations made under this Act, by or
against or in relation to the Commissioner
for Corporate Affairs and existing
immediately before the commencement of
section 89 of the Fair Trading
(Amendment) Act 2003, may be continued
and completed on and after that
Fair Trading (Amendment) Act 2003
Act No. 30/2003
Part 3—Repeals and Amendments s. 90 commencement by or against or in relation to
the Director of Consumer Affairs Victoria.
(2) If, immediately before the commencement of
(Amendment) Act 2003, proceedings under
this Act to which the Commissioner forsection 89 of the Fair Trading or existing in any court or tribunal, then, on and after that commencement, the Director of Consumer Affairs Victoria is substituted for the Commissioner for Corporate Affairs as a party to the proceedings and has the same rights and obligations in the proceedings as had the Commissioner for Corporate Affairs.". 90. Amendment to the Petroleum Retail Selling Sites Act 1981
See:
In section 4(9) of the Petroleum Retail Selling Act No. Sites Act 1981, for "Consumer and Business 9704/1981
andAffairs" substitute "Consumer Affairs Victoria". amending
Act Nos17/1999 and
35/2000.LawToday:
dpc.vic. gov.au
Fair Trading (Amendment) Act 2003
Act No. 30/2003
| s. 91 | Part 3—Repeals and Amendments |
91. Amendment to the Residential Tenancies Act 1997
| See: | In Part 12 of the Residential Tenancies Act 1997, |
| Act No. | |
| 109/1997. | in the heading to Division 1, for "Consumer and |
| Reprint No. 2 | |
| as at | Business Affairs" substitute "Consumer |
| 13 January | Affairs Victoria". |
| 2000 | |
| and | |
| amending | |
| Act Nos | |
| 28/2000, | |
| 35/2000, 74/2000, 11/2001, 27/2001, 11/2002 and 45/2002. | |
LawToday: | gov.au |
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Fair Trading (Amendment) Act 2003
Act No. 30/2003
Endnotes
ENDNOTES
†
Minister's second reading speech—
Legislative Assembly: 7 May 2003
Legislative Council: 21 May 2003
The long title for the Bill for this Act was "to amend the Fair Trading
Act 1999, to repeal the Small Claims Act 1973, to repeal Part IV of the
Goods Act 1958, to amend the Business Licensing Authority Act 1998and other Acts and for other purposes."
Constitution Act 1975:
Section 85(5) statement:
Legislative Assembly: 7 May 2003
Legislative Council: 21 May 2003
Absolute majorities:
Legislative Assembly: 21 May 2003, 22 May 2003
Legislative Council: 22 May 2003
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