TRADE PRACTICES AMENDMENT ACT 1977 No. 81 of 1977 - SECT 6
TRADE PRACTICES AMENDMENT ACT 1977 No. 81 of 1977 - SECT 6
6. After section 4 of the Principal Act the following sections are inserted:-
Subsidiary, holding and related bodies corporate.
''4A. (1) For the purposes of this Act, a body corporate shall, subject to
sub-section (3), be deemed to be a subsidiary of another body corporate if-
(a) that other body corporate-
(i) controls the composition of the board of directors of the
first-mentioned body corporate;
(ii) is in a position to cast, or control the casting of, more than
one-half of the maximum number of votes that might be cast at a
general meeting of the first-mentioned body corporate; or
(iii) holds more than one-half of the allotted share capital of the
first-mentioned body corporate (excluding any part of that
allotted share capital that carries no right to participate
beyond a specified amount in a distribution of either profits
or capital); or
(b) the first-mentioned body corporate is a subsidiary of any body
corporate that is that other body corporate's subsidiary (including
any body corporate that is that other body corporate's subsidiary by
another application or other applications of this paragraph).
''(2) For the purposes of sub-section (1), the composition of a body
corporate's board of directors shall be deemed to be controlled by another
body corporate if that other body corporate, by the exercise of some power
exercisable by it without the consent or concurrence of any other person, can
appoint or remove all or a majority of the directors, and for the purposes of
this provision that other body corporate shall be deemed to have power to make
such an appointment if-
(a) a person cannot be appointed as a director without the exercise in his
favour by that other body corporate of such a power; or
(b) a person's appointment as a director follows necessarily from his
being a director or other officer of that other body corporate.
''(3) In determining whether a body corporate is a subsidiary of another body
corporate-
(a) any shares held or power exercisable by that other body corporate in a
fiduciary capacity shall be treated as not held or exercisable by it;
(b) subject to paragraphs (c) and (d), any shares held or power
exercisable-
(i) by any person as a nominee for that other body corporate
(except where that other body corporate is concerned only in a
fiduciary capacity); or
(ii) by, or by a nominee for, a subsidiary of that other body
corporate, not being a subsidiary that is concerned only in a
fiduciary capacity,
shall be treated as held or exercisable by that other body corporate;
(c) any shares held or power exercisable by any person by virtue of the
provisions of any debentures of the first-mentioned body corporate, or
of a trust deed for securing any allotment of such debentures, shall
be disregarded; and
(d) any shares held or power exercisable by, or by a nominee for, that
other body corporate or its subsidiary (not being held or exercisable
as mentioned in paragraph (c) ) shall be treated as not held or
exercisable by that other body corporate if the ordinary business of
that other body corporate or its subsidiary, as the case may be,
includes the lending of money and the shares are held or the power is
exercisable by way of security only for the purposes of a transaction
entered into in the ordinary course of that business.
''(4) A reference in this Act to the holding company of a body corporate shall
be read as a reference to a body corporate of which that other body corporate
is a subsidiary.
''(5) Where a body corporate-
(a) is the holding company of another body corporate;
(b) is a subsidiary of another body corporate; or
(c) is a subsidiary of the holding company of another body corporate,
that first-mentioned body corporate and that other body corporate shall, for
the purposes of this Act, be deemed to be related to each other.
''(6) In proceedings under this Act, whether in the Court or before the
Tribunal or the Commission, it shall be presumed, unless the contrary is
established, that bodies corporate are not, or were not at a particular time,
related to each other. Consumers.
''4B. (1) For the purposes of this Act, unless the contrary intention appears-
(a) a person shall be taken to have acquired particular goods as a
consumer if, and only if-
(i) the price paid or payable by the person for the goods did not
exceed the prescribed amount; or
(ii) where that price exceeded the prescribed amount-the goods were
of a kind ordinarily acquired for personal, domestic or
household use or consumption,
and the person did not acquire the goods, or hold himself out as acquiring the
goods, for the purpose of re-supply or for the purpose of using them up or
transforming them, in trade or commerce, in the course of a process of
production or manufacture or of repairing or treating other goods or fixtures
on land; and
(b) a person shall be taken to have acquired particular services as a
consumer if, and only if-
(i) the price paid or payable by the person for the services did
not exceed the prescribed amount; or
(ii) where that price exceeded the prescribed amount-the services
were of a kind ordinarily acquired for personal, domestic or
household use or consumption.
''(2) For the purposes of sub-section (1)-
(a) the prescribed amount is $15,000 or, if a greater amount is prescribed
for the purposes of this paragraph, that greater amount;
(b) if a person acquired goods together with other property or with
services, or with both other property and services, and a specified
price was not allocated to the goods in the contract under which they
were acquired, the price paid or payable by the person for the goods
shall be taken to have been the amount that was the market value of
the goods at the time when that contract was entered into; and
(c) if a person acquired services together with property or with other
services, or with both property and other services, and a specified
price was not allocated to the first-mentioned services in the
contract under which they were acquired, the price paid or payable by
the person for the first-mentioned services shall be taken to have
been the amount that was the market value of those services at the
time when that contract was entered into.
''(3) Where it is alleged in any proceeding under this Act or in any other
proceeding in respect of a matter arising under this Act that a person was a
consumer in relation to particular goods or services, it shall be presumed,
unless the contrary is established, that the person was a consumer in relation
to those goods or services. Acquisition, supply and re-supply.
''4C. In this Act, unless the contrary intention appears-
(a) a reference to the acquisition of goods includes a reference to the
acquisition of property in, or rights in relation to, goods in
pursuance of a supply of the goods;
(b) a reference to the supply or acquisition of goods or services includes
a reference to agreeing to supply or acquire goods or services;
(c) a reference to the supply or acquisition of goods includes a reference
to the supply or acquisition of goods together with other property or
services, or both;
(d) a reference to the supply or acquisition of services includes a
reference to the supply or acquisition of services together with
property or other services, or both; and
(e) a reference to the re-supply of goods acquired from a person includes
a reference to-
(i) a supply of the goods to another person in an altered form or
condition; and
(ii) a supply to another person of goods in which the
first-mentioned goods have been incorporated. Exclusionary
provisions.
''4D. (1) A provision of a contract, arrangement or understanding, or of a
proposed contract, arrangement or understanding, shall be taken to be an
exclusionary provision for the purposes of this Act if-
(a) the contract or arrangement was made, or the understanding was arrived
at, or the proposed contract or arrangement is to be made, or the
proposed understanding is to be arrived at, between persons any 2 or
more of whom are competitive with each other; and
(b) the provision has the purpose of preventing, restricting or limiting-
(i) the supply of goods or services to, or the acquisition of
goods or services from, particular persons; or
(ii) the supply of goods or services to, or the acquisition of
goods or services from, particular persons in particular
circumstances or on particular conditions,
by all or any of the parties to the contract, arrangement or understanding or
of the proposed parties to the proposed contract, arrangement or understanding
or, if a party or proposed party is a body corporate, by a body corporate that
is related to the body corporate.
''(2) A person shall be deemed to be competitive with another person for the
purposes of this section if the first-mentioned person or a body corporate
that is related to that person is, or is likely to be, in competition, in
relation to the supply or acquisition of goods or services, with the other
person or with a body corporate that is related to the other person. Market.
''4E. For the purposes of this Act, 'market' means a market in Australia and,
when used in relation to any goods or services, includes a market for those
goods or services and other goods or services that are substitutable for, or
otherwise competitive with, the first-mentioned goods or services. References
to purpose or reason.
''4F. For the purposes of this Act-
(a) a provision of a contract, arrangement or understanding or of a
proposed contract, arrangement or understanding, or a covenant or a
proposed covenant, shall be deemed to have had, or to have, a
particular purpose if-
(i) the provision was included in the contract, arrangement or
understanding or is to be included in the proposed contract,
arrangement or understanding, or the covenant was required to
be given or the proposed covenant is to be required to be
given, as the case may be, for that purpose or for purposes
that included or include that purpose; and
(ii) that purpose was or is a substantial purpose; and
(b) a person shall be deemed to have engaged or to engage in conduct for a
particular purpose or a particular reason if-
(i) the person engaged or engages in the conduct for purposes that
included or include that purpose or for reasons that included
or include that reason, as the case may be; and
(ii) that purpose or reason was or is a substantial purpose or
reason. Lessening of competition to include preventing or
hindering competition.
''4G. For the purposes of this Act, references to the lessening of competition
shall be read as including references to preventing or hindering competition.
Application of Act in relation to leases and licences of land and buildings.
''4H. In this Act-
(a) a reference to a contract shall be construed as including a reference
to a lease of, or a licence in respect of, land or a building or part
of a building and shall be so construed notwithstanding the express
references in this Act to such leases or licences;
(b) a reference to making or entering into a contract, in relation to such
a lease or licence, shall be read as a reference to granting or taking
the lease or licence; and
(c) a reference to a party to a contract, in relation to such a lease or
licence, shall be read as including a reference to any person bound
by, or entitled to the benefit of, any provision contained in the
lease or licence. Joint ventures.
''4J. In this Act-
(a) a reference to a joint venture is a reference to an activity in trade
or commerce-
(i) carried on jointly by two or more persons, whether or not in
partnership; or
(ii) carried on by a body corporate formed by two or more persons
for the purpose of enabling those persons to carry on that
activity jointly by means of their joint control, or by means
of their ownership of shares in the capital, of that body
corporate; and
(b) a reference to a contract or arrangement made or understanding arrived
at, or to a proposed contract or arrangement to be made or proposed
understanding to be arrived at, for the purposes of a joint venture
shall, in relation to a joint venture by way of an activity carried on
by a body corporate as mentioned in sub-paragraph (a) (ii), be read as
including a reference to the memorandum and articles of association,
rules or other document that constitute or constitutes, or are or is
to constitute, that body corporate. Loss or damage to include injury.
''4K. In this Act-
(a) a reference to loss or damage, other than a reference to the amount of
any loss or damage, includes a reference to injury; and
(b) a reference to the amount of any loss or damage includes a reference
to damages in respect of an injury. Severability.
''4L. If the making of a contract after the commencement of this section
contravenes this Act by reason of the inclusion of a particular provision in
the contract, then, subject to any order made under section 87, nothing in
this Act affects the validity or enforceability of the contract otherwise than
in relation to that provision in so far as that provision is severable. Saving
of law relating to restraint of trade and breaches of confidence.
''4M. This Act does not affect the operation of-
(a) the law relating to restraint of trade in so far as that law is
capable of operating concurrently with this Act; or
(b) the law relating to breaches of confidence, but nothing in the law
referred to in paragraph (a) or (b) affects the interpretation of this
Act.''.
