New South Wales Repealed Regulations

This legislation has been repealed.

FAIR TRADING (GENERAL) REGULATION 2002 - REG 88B

88B Exclusion of certain contracts from direct commerce provisions

(1) The following kinds of contracts are, in accordance with section 40B (2) of the Act, excluded from the operation of Division 3 of Part 4 of the Act:

(a) a customer supply contract (within the meaning of the Electricity Supply Act 1995 ) entered into with a person who is a small retail customer for the purposes of that Act,

(b) a customer supply contract (within the meaning of the Gas Supply (Natural Gas Retail Competition) Regulation 2001 ) entered into with a person who is a small retail customer for the purposes of the Gas Supply Act 1996 ,

(c) a contract arising out of the conduct of a fundraising appeal within the meaning of the Charitable Fundraising Act 1991 ,

(c1) a business contract,

(d) a contract for the supply of a financial product, or a managed investment scheme, within the meaning of the Corporations Act 2001 of the Commonwealth,

Note: The hawking of certain financial products and managed investment products is prohibited under the Corporations Act 2001 -see sections 992A and 992AA of that Act.

(e) if a contract for the supply of goods or services exists between a consumer and a supplier-a contract between the consumer and the supplier for the supply of goods or services that are of the same kind as those supplied under the existing contract.

Note: An example of such an excluded contract is where the consumer has joined a scheme (such as a wine society or club) and agrees to allow the supplier to subsequently offer to the consumer products or services in connection with the scheme. In such a case, the subsequent offering by a dealer or supplier to the consumer of those products or services would not trigger the direct commerce provisions.
However, the exemption under this paragraph does not apply if the supplier subsequently offers different kinds of goods or services to those supplied under the existing contract. For example, if the supplier of telecommunications services, who has an existing contract with a consumer for the supply of a landline phone service, contacts the consumer for the purpose of negotiating a contract for the supply of a mobile phone or an Internet service, the contract for the supply of those other services would not be an excluded contract.

(2) To avoid any doubt, if:

(a) a contract for the supply of goods or services exists between a consumer and a supplier, and

(b) the supplier subsequently makes contact with the consumer for the purposes of maintaining the goods or services provided under the existing contract (such as the rectification of a fault) or for the purposes of making a minor change to the terms of the existing contract,

any contract for those purposes between the consumer and the supplier that results from that subsequent contact is not a direct commerce contract.

Note: One of the elements of the definition of a "direct commerce contract" in section 40B of the Act is that it is made in the course of direct commerce (ie the practice in which a person goes from place to place, or makes telephone calls, seeking out persons who may be prepared to enter, as consumers, into contracts for the supply of goods or services). Another element of the definition is that the contact with the consumer, or the telephone call, is unsolicited.
A direct commerce contract essentially involves the practice of “cold calling” of potential customers. In the case of an existing contract, this practice would not generally be applicable (unless the customer is subsequently contacted for the purpose of negotiating a contract for the supply of different kinds of goods or services to those supplied under the existing contract-see the note following subclause (1) (e)).

(3) For the purposes of subclause (1) (c1), "business contract" means a contract for the supply of goods or services other than of a kind ordinarily acquired for personal, domestic or household use or consumption.