COMPETITION AND CONSUMER ACT 2010 - SECT 96 Acts constituting engaging in resale price maintenance

COMPETITION AND CONSUMER ACT 2010 - SECT 96

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

  (2)   Subject to this Part, a person (not being a corporation and also in this section called the supplier ) engages in the practice of resale price maintenance if that person does an act referred to in any of the paragraphs of subsection   (3) where the second person mentioned in that paragraph is a corporation.

  (3)   The acts referred to in subsections   (1) and (2) are the following:

  (a)   the supplier making it known to a second person that the supplier will not supply goods to the second person unless the second person agrees not to sell those goods at a price less than a price specified by the supplier;

  (b)   the supplier inducing, or attempting to induce, a second person not to sell, at a price less than a price specified by the supplier, goods supplied to the second person by the supplier or by a third person who, directly or indirectly, has obtained the goods from the supplier;

  (c)   the supplier entering into an agreement, or offering to enter into an agreement, for the supply of goods to a second person, being an agreement one of the terms of which is, or would be, that the second person will not sell the goods at a price less than a price specified, or that would be specified, by the supplier;

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

  (i)   has not agreed as mentioned in paragraph   (a); or

  (ii)   has sold, or is likely to sell, goods supplied to him or her by the supplier, or goods supplied to him or her by a third person who, directly or indirectly, has obtained the goods from the supplier, at a price less than a price specified by the supplier as the price below which the goods are not to be sold;

  (e)   the supplier withholding the supply of goods to a second person for the reason that a third person who, directly or indirectly, has obtained, or wishes to obtain, goods from the second person:

  (i)   has not agreed not to sell those goods at a price less than a price specified by the supplier; or

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

  (f)   the supplier using, in relation to any goods supplied, or that may be supplied, by the supplier to a second person, a statement of a price that is likely to be understood by that person as the price below which the goods are not to be sold.

  (4)   For the purposes of subsection   (3):

  (a)   where a price is specified by another person on behalf of the supplier, it shall be deemed to have been specified by the supplier;

  (b)   where the supplier makes it known, in respect of goods, that the price below which those goods are not to be sold is a price specified by another person in respect of those goods, or in respect of goods of a like description, that price shall be deemed to have been specified, in respect of the first - mentioned goods, by the supplier;

  (c)   where a formula is specified by or on behalf of the supplier and a price may be ascertained by calculation from, or by reference to, that formula, that price shall be deemed to have been specified by the supplier; and

  (d)   where the supplier makes it known, in respect of goods, that the price below which those goods are not to be sold is a price ascertained by calculation from, or by reference to, a formula specified by another person in respect of those goods or in respect of goods of a like description, that price shall be deemed to have been specified, in respect of the first - mentioned goods, by the supplier.

  (5)   In subsection   (4), formula includes a set form or method.

  (6)   For the purposes of subsection   (3), anything done by a person acting on behalf of, or by arrangement with, the supplier shall be deemed to have been done by the supplier.

  (7)   A reference in any of paragraphs   (3)(a) to (e), inclusive, including a reference in negative form, to the selling of goods at a price less than a price specified by the supplier shall be construed as including references to:

  (a)   the advertising of goods for sale at a price less than a price specified by the supplier as the price below which the goods are not to be advertised for sale;

  (b)   the displaying of goods for sale at a price less than a price specified by the supplier as the price below which the goods are not to be displayed for sale; and

  (c)   the offering of goods for sale at a price less than a price specified by the supplier as the price below which the goods are not to be offered for sale;

and a reference in paragraph   (3)(d), (e) or (f) to a price below which the goods are not to be sold shall be construed as including a reference to the price below which the goods are not to be advertised for sale, to the price below which the goods are not to be displayed for sale and to the price below which the goods are not to be offered for sale.

  (8)   Subsection   (1) does not apply with respect to any act referred to in a paragraph of subsection   (3) if the supplier and the second person referred to in that paragraph are bodies corporate that are related to each other.