Commonwealth Numbered Acts

TRADE PRACTICES AMENDMENT ACT 1977 No. 81 of 1977 - SECT 52

52. (1) Section 87 of the Principal Act is amended-

   (a)  by omitting sub-sections (1), (2) and (3) and substituting the
        following sub-sections:-

''(1) Where, in a proceeding instituted under, or for an offence against, this
Part, the Court finds that a person who is a party to the proceeding has
suffered, or is likely to suffer, loss or damage by conduct of another person
that was engaged in (whether before or after the commencement of this
sub-section) in contravention of a provision of Part IV or V, the Court may,
whether or not it grants an injunction under section 80 or makes an order
under section 80A or 82, make such order or orders as it thinks appropriate
against the person who engaged in the conduct or a person who was involved in
the contravention (including all or any of the orders mentioned in sub-section
(2) of this section) if the Court considers that the order or orders concerned
will compensate the first-mentioned person in whole or in part for the loss or
damage or will prevent or reduce the loss or damage.

''(1A) The Court may, on the application of a person who has suffered, or is
likely to suffer, loss or damage by conduct of another person that was engaged
in (whether before or after the commencement of this sub-section) in
contravention of a provision of Part V, make such order or orders as it thinks
appropriate against the person who engaged in the conduct or a person who was
involved in the contravention (including all or any of the orders mentioned in
sub-section (2)) if the Court considers that the order or orders concerned
will compensate the first-mentioned person in whole or in part for the loss or
damage or will prevent or reduce the loss or damage.

''(2) The orders referred to in sub-sections (1) and (1A) are-

   (a)  an order declaring the whole or any part of a contract made between
        the person who suffered, or is likely to suffer, the loss or damage
        and the person who engaged in the conduct or a person who was involved
        in the contravention constituted by the conduct, or of a collateral
        arrangement relating to such a contract, to be void and, if the Court
        thinks fit, to have been void ab initio or at all times on and after
        such date before the date on which the order is made as is specified
        in the order;

   (b)  an order varying such a contract or arrangement in such manner as is
        specified in the order and, if the Court thinks fit, declaring the
        contract or arrangement to have had effect as so varied on and after
        such date before the date on which the order is made as is so
        specified;

   (c)  an order directing the person who engaged in the conduct or a person
        who was involved in the contravention constituted by the conduct to
        refund money or return property to the person who suffered the loss or
        damage;

   (d)  an order directing the person who engaged in the conduct or a person
        who was involved in the contravention constituted by the conduct to
        pay to the person who suffered the loss or damage the amount of the
        loss or damage;

   (e)  an order directing the person who engaged in the conduct or a person
        who was involved in the contravention constituted by the conduct, at
        his own expense, to repair, or provide parts for, goods that had been
        supplied by the person who engaged in the conduct to the person who
        suffered, or is likely to suffer, the loss or damage; and

   (f)  an order directing the person who engaged in the conduct or a person
        who was involved in the contravention constituted by the conduct, at
        his own expense, to supply specified services to the person who
        suffered, or is likely to suffer, the loss or damage.

''(3) Where-

   (a)  a provision of a contract made, or a covenant given, whether before or
        after the commencement of the Trade Practices Amendment Act 1977-

        (i)    in the case of a provision of a contract, is unen- forceable by
               reason of section 45 in so far as it confers rights or benefits
               or imposes duties or obligations on a corporation; or

        (ii)   in the case of a covenant, is unenforceable by reason of
               section 45B in so far as it confers rights or benefits or
               imposes duties or obligations on a corporation or on a person
               associated with a corporation; or

   (b)  the engaging in conduct by a corporation in pursuance of or in
        accordance with a contract made before the commencement of the
        Trade Practices Amendment Act 1977 would constitute a contravention of
        section 47,

the Court may, on the application of a party to the contract or of a person
who would, but for sub-section 45B (1), be bound by, or entitled to the
benefit of, the covenant, as the case may be, make an order-

   (c)  varying the contract or covenant, or a collateral arrangement relating
        to the contract or covenant, in such manner as the Court considers
        just and equitable; or

   (d)  directing another party to the contract, or another person who would,
        but for sub-section 45B (1), be bound by, or entitled to the benefit
        of, the covenant, to do any act in relation to the first-mentioned
        party or person that the Court considers just and equitable.''; and

   (b)  by inserting in sub-section (5), after the word ''contract'' (wherever
        occurring), the words ''or covenant''.

(2) Where-

   (a)  a contract made before 1 February 1975 was at any time during the
        period that commenced on that date and ended immediately before the
        commencement of this Act, unenforceable in whole or in part by reason
        of section 45 of the Principal Act; or

   (b)  the engaging in conduct at any time during the period referred to in
        paragraph (a) by a person in pursuance of or in accordance with a
        contract made before 1 February 1975 would have constituted a
        contravention of section 47 of the Principal Act, the Federal Court of
        Australia may, on the application of a party to the contract, make an
        order-

   (c)  varying the contract, or a collateral arrangement relating to the
        contract, in such manner as that Court considers just and equit- able;
        or

   (d)  directing another party to the contract to do any act in relation to
        the first-mentioned party that that Court considers just and
        equitable.