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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Fair Trading (Amendment) Act 2002
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purposes 1
2. Commencement 2
PART 2--AMENDMENTS TO THE FAIR TRADING ACT 1999 3
3. Purposes 3
4. Definitions 3
5. New section 6 substituted 5
6. Extra-territorial application of this Act 5
6. Amendment to penalty provisions in Part 2 5
7. Referral selling 6
8. Pyramid selling 6
9. Right to payment for unauthorised entry or advertisement 7
10. Address to be included in documents 7
11. New section 29A inserted 8
29A. Requirements of publisher and advertiser 8
12. 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? 10
32BA. What are antecedent negotiations? 11
32C. When is a person "aware"? 11
Division 2--Application of Part 12
32CA. Application of Part 12
32D. This Part applies to certain kinds of contracts 12
32DA. This Part does not apply to certain kinds of contracts 13
32E. How is "cash price" determined? 14
32EA. Presumption that this Part applies to supply 16
32F. Application of Part to mixed contracts 16
32FA. Application of Goods Act 1958 to contracts of supply 16
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Clause Page
Division 3--Supply of Goods or Services 17
32G. Terms implied in contract of supply (other than a
lease) of goods as to title, etc. 17
32GA. Terms implied in leases as to right to hire 19
32H. Supply of goods by description 20
32HA. Supply of goods by sample 20
32I. Merchantable quality of goods supplied 21
32IA. Fitness of goods for purpose 22
32J. Implied conditions in supply of services 22
32JA. Fitness of services for purpose 23
32K. Supply of services by demonstration 23
32KA. Terms implied in contracts of supply of both services
and goods 25
32L. Contract cannot exclude this Part 25
32LA. Contract cannot exclude liability for damages 26
32M. Penalties for including void provisions 27
32MA. Limitation of liability generally 27
32N. Limitation of liability in relation to supply of
recreational services 29
32NA. Supplier to have reasonable opportunity 32
32O. Acceptance of goods 33
32OA. Rescission for innocent misrepresentation 35
32P. Discharge or rescission of contract of supply of goods 35
32PA. When does a discharge or rescission have effect? 37
32Q. Liability of supplier and person conducting antecedent
negotiations 38
32QA. Indemnity for supplier or dealer 40
32R. Certain contracts or provisions void 40
32RA. Penalty for including void provision relating to
antecedent negotiations 41
Division 4--General 41
32S. Implied terms do not negative express terms unless
inconsistent 41
32SA. Limit of liability of guarantors 41
32T. Limit of liability under security 44
32TA. Contract of supply not illegal etc. 44
13. Insertion of new Part 2B 45
PART 2B--UNFAIR TERMS IN CONSUMER
CONTRACTS 45
32U. Definitions 45
32V. Application of Part 46
32W. What is an unfair term? 46
32X. Assessment of unfair terms 46
32Y. Effect of unfair term 47
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32Z. Offences relating to prescribed unfair terms 48
32ZA. Injunctions to prevent continued use of unfair terms 48
32ZB. Director may require the supply of information 49
32ZC. Declaration by the Tribunal 51
32ZD. Advisory opinion by the Tribunal 51
14. Interim ban order 52
15. Permanent or fixed term ban order 52
16. General power to make permanent ban order or fixed term ban
order 52
17. New section 41 substituted 54
41. When does a permanent ban order or a fixed term ban
order take effect? 54
18. Notice of order 54
19. New section 43 substituted 55
43. Revocation or amendment of permanent ban order or
fixed term ban order 55
20. Offence to contravene permanent ban order or fixed term ban
order 55
21. Loss, injury or damage arising from a contravention of this
Division 55
22. Compulsory recall 55
23. Review of ban order or compulsory recall notice 56
24. Substitution of Part heading 56
25. What is a contact sales agreement? 56
26. Requirements for contact sales agreements 57
27. New sections 62A, 62B, 62C, 62D and 62E inserted 57
62A. Duty to obtain prior consent to visit 57
62B. Duty not to remain on premises for long periods 58
62C. Duty to leave premises 60
62D. Duty to produce identification 60
62E. Duty to inform 61
28. When can the purchaser cancel the agreement? 62
29. What can the supplier charge on cancellation? 63
30. New Division 2A inserted in Part 4 63
Division 2A--Telephone Marketing Agreements 63
67A. What is a telephone marketing agreement? 63
67B. Requirements for telephone marketing agreements 65
67C. When is a telephone marketing agreement entered into
or made? 67
67D. Supplier must comply with requirements 67
67E. Duty to cease telephone marketing 67
67F. When can the purchaser cancel the agreement? 68
67G. What is the effect of cancellation? 69
67H. What must the supplier do on cancellation? 70
67I. What can the supplier charge on cancellation? 70
67J. What must the purchaser do on cancellation? 71
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31. What is a non-contact sales agreement? 72
32. Requirements for non-contact sales agreements 72
33. New section 70A inserted 72
70A. Duty to cease telephone marketing for non-contact sale 72
34. When can the purchaser cancel the agreement? 73
35. Sections 76, 77 and 78 revoked 73
36. Trade-in not to be sold during cooling-off period 73
37. New section 80 substituted 73
80. Prohibition on payment for services during cooling-off
period 73
38. Certain provisions in agreements void 74
39. Statement of lay-by terms 74
40. New section 84A inserted 74
84A. Lay-by goods must be available 74
41. Cancellation of lay-by by purchaser 75
42. Cancellation where business closes 75
43. Cancellation charge must not exceed a reasonable amount 76
44. Director of Consumer Affairs Victoria 76
45. Functions and powers of the Director 76
46. Part 8 headings amended 77
47. Conciliation 77
48. Power of the Director to institute and defend proceedings 77
49. Proceedings and costs 78
50. New Divisions 2, 3 and 4 inserted in Part 8 79
Division 2--Suppliers 79
106A. Substantiation of claims 79
106B. "Show cause" notice 80
Division 3--Licence Suspension 82
106C. Definitions 82
106D. Director may suspend licence 84
106E. Effect of suspension 85
106F. Lapsing or continuation of suspension 87
106G. Extension of period 88
106H. Right of review 89
Division 4--Obtaining Information, Documents and
Evidence 89
106I. Power to obtain information, documents and evidence 89
106J. Powers in relation to documents 91
106K. Copies of seized documents 92
106L. Retention and return of seized documents 92
106M. Magistrates' Court may extend 3 month period 93
106N. Complaints 94
106O. Service of documents 94
106P. Confidentiality 94
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51. Consumer and trader disputes 95
52. Definition of consumer and trader dispute 95
53. New section 107A inserted 96
107A. What is a small claim? 96
54. Settlement of consumer and trader disputes 96
55. Exclusion of other jurisdiction 97
56. New sections 112A and 112B inserted 97
112A. Small claim commenced in a court 97
112B. Small Claims Suspense Account 98
57. New section 113A inserted 99
113A. Tribunal may order the provision of information 99
58. Publisher to produce information 100
59. Emergency entry 100
60. New section 129 substituted 100
129. Magistrates' Court may extend 3 month period 100
61. New section 144 substituted 101
144. Conduct by officers, employees or agents 101
62. Repeal of section 145 104
63. New section 145 inserted 104
145. Interpretation 104
64. New sections 151A, 151B and 151C inserted 104
151A. Cease trading injunctions 104
151B. Interim cease trading injunctions 106
151C. Power to rescind or vary cease trading injunctions 106
65. Defences 107
66. Orders against persons found to have contravened this Act 107
67. Actions for damages 108
68. New Division 3 inserted in Part 11 108
Division 3--Infringement Notices 108
160A. Power to serve a notice 108
160B. Form of notice 109
160C. Late payment of penalty 110
160D. Withdrawal of notice 110
160E. Payment expiates offence 111
160F. Application of penalty 111
160G. Prosecution after service of infringement notice 112
160H. Enforcement of infringement penalty 112
69. New section 161A inserted 113
161A. Bills and receipts 113
70. New section 162A inserted 115
162A. Public warning statements 115
71. New section 163 substituted 115
163. Consumer documents to be clear 115
72. Supreme Court--limitation of jurisdiction 116
73. Amendment of regulation-making powers 117
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Clause Page
74. New Schedule 2 substituted 117
75. Amendment to Schedule 3 120
76. Further amendment to Schedule 3 121
PART 3--REPEALS AND AMENDMENTS 122
77. Repeal of the Small Claims Act 1973 122
78. Repeal of Part IV of the Goods Act 1958 122
79. New Part VI inserted in Goods Act 1958 122
PART VI--TRANSITIONAL AND SAVING 122
122. Contracts to which Part IV of the Goods Act 1958
will still apply 122
80. Amendment to the Business Licensing Authority Act 1998 122
PART 3--LICENCE SUSPENSION 122
20. Definitions 122
21. Authority may suspend licence 124
22. Effect of suspension 126
23. Lapsing or continuation of suspension 128
24. Extension of period 129
25. Right of review 130
81. Amendment to the Interpretation of Legislation Act 1984 130
82. New Part 7A inserted in Schedule 1 to the Victorian Civil
and Administrative Tribunal Act 1998 130
83. Repeal of Part 18 of Schedule 1 to the Victorian Civil and
Administrative Tribunal Act 1998 132
84. Amendments to the Administrative Law Act 1978 132
85. Amendments to the Building Act 1993 132
86. Amendments to the Co-operative Housing Societies Act 1958 133
87. Amendments to the Domestic Building Contracts Act 1995 133
88. Amendments to the Fundraising Appeals Act 1998 134
89. Amendments to the Petroleum Retail Selling Sites Act 1981 135
90. Amendments to the Residential Tenancies Act 1997 135
ENDNOTES 136
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PARLIAMENT OF VICTORIA
Initiated in Assembly 30 October 2002
A BILL
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 1998 and other Acts and for other purposes.
Fair Trading (Amendment) Act 2002
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
5 increase consumer protection under that Act
and in particular--
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Fair Trading (Amendment) Act 2002
Act No.
Part 1--preliminary
s. 2
(i) to provide for statutory conditions and
warranties to apply in certain contracts
of supply of goods or services;
(ii) to provide for unfair terms in consumer
5 contracts to be void;
(iii) to give the Director additional powers
of enforcement in relation to the
conduct of suppliers and business
licence holders;
10 (iv) to further regulate telephone marketing
agreements and contact sales
agreements;
(v) to provide for a procedure for small
claims;
15 (vi) to increase penalties for offences under
the Act;
(vii) to improve the general operation of the
Act;
(b) to repeal the Small Claims Act 1973;
20 (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.
25 2. Commencement
(1) Subject to sub-section (2), this Act comes into
operation on a day or days to be proclaimed.
(2) If a provision of this Act does not come into
operation before 31 December 2003, it comes into
30 operation on that day.
__________________
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Fair Trading (Amendment) Act 2002
Act No.
part 2--amendments to the Fair Trading Act 1999
s. 3
PART 2--AMENDMENTS TO THE FAIR TRADING ACT 1999
3. Purposes
See:
(1) In section 1 of the Fair Trading Act 1999, after Act No.
paragraph (a) insert-- 16/1999
and
5 "(aa) to protect consumers;". amending
Act Nos
(2) In section 1 of the Fair Trading Act 1999, after 35/2000,
44/2001 and
paragraph (b) insert-- 86/2001.
LawToday:
"(ba) to provide for statutory conditions and www.dms.
dpc.vic.
warranties in consumer contracts;
gov.au
10 (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".
15 4. Definitions
(1) In section 3 of the Fair Trading Act 1999
insert--
' "business licensing Act" has the same meaning
as in the Business Licensing Authority Act
20 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
25 personal, domestic or household use, for the
purposes of the ordinary personal, household
or domestic use of those goods or services;
"fixed term ban order" means a fixed term ban
order under section 39 or 40;
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Fair Trading (Amendment) Act 2002
Act No.
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
5 Public Holidays Act 1993;
"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
10 form);
"publisher" means a person who publishes a
publication intended for sale or distribution
(whether to the public generally or to a
restricted class or number of persons) or for
15 public display (including in an electronic
form);
"telephone marketing agreement" has the
meaning given by section 67A;'.
(2) In section 3 of the Fair Trading Act 1999, in the
20 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 "cooling-off period" after
25 paragraph (a) insert--
"(aa) in the case of a telephone marketing
agreement, the period within which the
purchaser is entitled under the agreement and
section 67F to cancel the agreement; or".
30 (4) In section 3 of the Fair Trading Act 1999, in the
definition of "Director" for "Consumer and
Business Affairs" substitute "Consumer Affairs
Victoria".
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Fair Trading (Amendment) Act 2002
Act No.
part 2--amendments to the Fair Trading Act 1999
s. 5
(5) In section 3 of the Fair Trading Act 1999, for the
definition of "unsolicited goods" substitute--
' "unsolicited goods" means goods supplied to a
person--
5 (a) without any request made by or on
behalf of the person; or
(b) on approval;'.
5. New section 6 substituted
For section 6 of the Fair Trading Act 1999
10 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
15 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
20 "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--
25 (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)
30 and 27(1) of the Fair Trading Act 1999--
(a) for "120 penalty units" substitute
"240 penalty units";
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Fair Trading (Amendment) Act 2002
Act No.
part 2--amendments to the Fair Trading Act 1999
s. 7
(b) for "240 penalty units" substitute
"600 penalty units".
7. Referral selling
(1) In section 18 of the Fair Trading Act 1999, for
5 "supplier" (wherever occurring) substitute
"person".
(2) In section 18(1)(b) of the Fair Trading Act 1999,
for "persons" substitute "purchasers".
(3) In section 18 of the Fair Trading Act 1999, sub-
10 section (2) 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
15 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.
20 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
25 suggests a reasonable possibility of the
existence of facts that, if they existed, would
establish the exception.".
(2) At the end of section 22(3)(b) of the Fair Trading
Act 1999, omit "and".
30 (3) In section 22(3) of the Fair Trading Act 1999,
paragraph (c) is repealed.
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Fair Trading (Amendment) Act 2002
Act No.
part 2--amendments to the Fair Trading Act 1999
s. 9
9. Right to payment for unauthorised entry or
advertisement
(1) In section 27(5)(a) of the Fair Trading Act 1999,
for sub-paragraph (i) substitute--
5 "(i) a large proprietary company or a subsidiary
of such a company or a listed corporation or
a subsidiary of such a corporation; or".
(2) In section 27(6) of the Fair Trading Act 1999,
insert the following definitions--
10 ' "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
15 Corporations Act.'.
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) In section 29(1)(f) of the Fair Trading Act 1999,
20 omit "office".
(3) In section 29 of the Fair Trading Act 1999, for
sub-section (2) substitute--
"(2) This section does not apply to an advertiser
who publishes or causes to be published, a
25 document, statement or advertisement for
prostitution services within the meaning of
the Prostitution Control Act 1994.".
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Fair Trading (Amendment) Act 2002
Act No.
part 2--amendments to the Fair Trading Act 1999
s. 11
11. New section 29A inserted
After section 29 of the Fair Trading Act 1999
insert--
'29A. Requirements of publisher and advertiser
5 (1) A publisher must not publish an
advertisement for the supply of goods or
services unless the publisher has first
obtained from the advertiser a statement in
writing as to whether or not the advertiser is
10 acting in trade or commerce.
Penalty: 60 penalty units, in the case of a
natural person.
120 penalty units, in the case of a
body corporate.
15 (2) An advertiser must not make a statement
under sub-section (1) that is false or
misleading in a material particular.
Penalty: 60 penalty units, in the case of a
natural person.
20 120 penalty units, in the case of a
body corporate.
(3) A publisher must not publish an
advertisement for the supply of goods or
services for an advertiser who has stated
25 under sub-section (1) not to be acting in
trade or commerce unless the advertiser
provides the publisher with the following
information--
(a) the name of the advertiser; and
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Fair Trading (Amendment) Act 2002
Act No.
part 2--amendments to the Fair Trading Act 1999
s. 11
(b) the full address (not being a post box)
of the advertiser.
Penalty: 60 penalty units, in the case of a
natural person.
5 120 penalty units, in the case of a
body corporate.
(4) A publisher must record and keep all
information provided to the publisher under
sub-section (3) for at least 12 months from
10 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.
15 (5) In this section--
"advertisement for the supply of goods or
services" means an advertisement,
document or statement that is intended
or likely to promote the supply of
20 goods or services;
"advertiser" in relation to an advertisement
for the supply of goods or services,
means the supplier of those goods or
services or a person acting on the
25 supplier's behalf. '.
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Fair Trading (Amendment) Act 2002
Act No.
part 2--amendments to the Fair Trading Act 1999
s. 12
12. Insertion of new Part 2A
After Part 2 of the Fair Trading Act 1999
insert--
'PART 2A--IMPLIED CONDITIONS AND
5 WARRANTIES IN CERTAIN CONTRACTS OF
SUPPLY
Division 1--Interpretation
32A. Definitions
In this Part--
10 "contract of supply" includes an agreement
to supply;
"court" in relation to any legal proceeding,
includes the Tribunal and a person
acting judicially;
15 "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
20 supplier;
"discharge" in relation to a contract of
supply means discharge of the contract
of supply so far as it is executory;
"lease" includes hire;
25 "rescission" in relation to a contract of
supply means avoidance of the contract
of supply as from its beginning.
32B. What are conditions and warranties?
(1) In this Part a reference to a condition in
30 relation to a contract of supply of goods or
services is a reference to a term of the
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Fair Trading (Amendment) Act 2002
Act No.
part 2--amendments to the Fair Trading Act 1999
s. 12
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
5 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?
10 (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--
15 (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.
20 (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.
25 32C. When is a person "aware"?
(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--
30 (a) stating that fact, matter or
circumstance; or
(b) stating that the person is aware of that
fact, matter or circumstance.
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Fair Trading (Amendment) Act 2002
Act No.
part 2--amendments to the Fair Trading Act 1999
s. 12
(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
5 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
10 32CA. Application of Part
This Part applies to contracts of supply of
goods or services entered into on or after the
commencement of section 12 of the Fair
Trading (Amendment) Act 2002.
15 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 78 of the Fair Trading (Amendment)
20 Act 2002. See section 122 of the Goods Act
1958.
32D. This Part applies to certain kinds of
contracts
(1) In this Part a reference to a contract of
25 supply 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
30 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.
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Fair Trading (Amendment) Act 2002
Act No.
part 2--amendments to the Fair Trading Act 1999
s. 12
(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
5 prescribed amount.
32DA. This Part does not apply to certain kinds of
contracts
(1) In this Part a reference to a contract of
supply does not include a reference to--
10 (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
15 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
20 purchasing, the goods for the purpose
of transforming them or incorporating
them in other goods, in trade or
commerce, in the course of--
(i) a process of production or
25 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
30 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
35 commencement of section 12 of the
Fair Trading (Amendment) Act 2002.
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Fair Trading (Amendment) Act 2002
Act No.
part 2--amendments to the Fair Trading Act 1999
s. 12
(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-
5 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
10 which the first-mentioned goods have
been incorporated.
32E. How is "cash price" determined?
(1) Subject to sub-section (2), "cash price" in
section 32D in relation to a contract of
15 supply of goods or services (other than by
way of lease) means the amount paid or
payable by the purchaser for the goods or
services.
(2) If under a contract of supply of goods or
20 services (other than by way of lease), 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,
25 "cash price" in section 32D in relation 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
30 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
35 except together with other property or
services but, at that time, goods or
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services of the kind purchased were
available for purchase from another
supplier without other property or
services--the lowest price at which the
5 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
10 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
15 services at that time.
(3) 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
20 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
25 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
30 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
35 are available for purchase only together
with other property or services--the
value of the goods at that time.
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(4) In this section "property or services"
includes property and services.
32EA. Presumption that this Part applies to supply
If it is alleged in any proceeding under this
5 Part or in any other proceeding in respect of
a matter arising under this Part that a
contract of supply is a contract to which this
Part applies, it is to be presumed, unless the
contrary is established, that this Part applies
10 to the contract.
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
15 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.
20 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
25 applies.
(2) Section 4(2) of the Goods Act 1958 is
deemed to apply in relation to this Part as if
the reference to Part were a reference to this
Part and the reference to contracts for the
30 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.
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(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
5 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.
Division 3--Supply of Goods or Services
10 32G. Terms implied in contract of supply (other
than a lease) of goods as to title, etc.
(1) In a contract of supply of goods (other than
by way of lease), there is--
(a) an implied condition that--
15 (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
20 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
25 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
30 when the supply is made; and
(ii) subject to which the purchaser has
agreed to accept the goods; and
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(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
5 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.
10 (2) Sub-section (1) 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
15 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
20 under which the supplier intends to
transfer only such right, title or interest
as the supplier or a third party may
have.
(3) In a contract of supply of goods to which
25 sub-sections (2)(a) and (2)(b) apply there
is--
(a) an implied condition that--
(i) in the case of a contract, not being
an agreement to supply, the
30 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
35 right to transfer that right, title or
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interest in the goods at the time
when the property is to pass; and
(b) an implied condition that, when the
property is to pass, there will be no
5 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
10 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
15 goods; and
(d) an implied warranty that the purchaser's
quiet possession of the goods will not
be disturbed by--
(i) the supplier; or
20 (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
25 (iii) anyone claiming through or under
the supplier or that third person
otherwise than under a charge or
encumbrance subject to which the
purchaser has agreed to accept the
30 goods.
32GA. 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
35 purchaser for the period of the lease.
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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
5 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.
10 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
15 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
20 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
25 of the sample to purchase the goods or
goods of the same kind.
(3) The conditions implied under this section in
a contract of supply of goods are--
(a) an implied condition that the goods will
30 correspond with the sample in quality;
and
(b) an implied condition that the purchaser
will have a reasonable opportunity of
comparing the goods with the sample;
35 and
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(c) an implied condition that the goods will
be free from any defect, rendering them
unmerchantable--
(i) that would not be apparent on
5 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
10 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
15 (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
20 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
25 (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.
(3) The condition in a contract of supply of
30 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
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(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.
5 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--
10 (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--
15 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
20 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
25 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
(b) in the case of a supply of services by a
30 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
35 reasonable to expect having regard to
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the price of the services, the terms of
the supply and all other relevant
circumstances.
32JA. Fitness of services for purpose
5 (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
10 (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
15 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
20 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
25 the supplier, dealer or other person.
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
30 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.
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(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,
5 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
10 (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 this section are--
15 (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
20 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
25 purchased--
(i) that would not be apparent on
reasonable examination of the
services shown in the
demonstration or the result
30 achieved by services of that kind;
and
(ii) of which the purchaser is not
aware when the contract is made.
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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
5 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
10 (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
15 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
20 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
25 reference to the supply of materials in
connection with a supply of services.
32L. Contract cannot exclude this Part
(1) A term of a contract of supply (including a
term that is not set out in the contract but is
30 incorporated in the contract by another term
of the contract of supply) is void if the term
purports to exclude, restrict or modify or
purports to have the effect of excluding,
restricting or modifying--
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(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
5 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 must not be
10 taken to exclude, restrict or modify the
application of a provision of this Part unless
the term does so expressly or is inconsistent
with that provision.
32LA. Contract cannot exclude liability for
15 damages
Subject to section 32MA, 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 the contract or
20 provision--
(a) excludes, restricts or modifies or
purports to have the effect of excluding,
restricting or modifying liability for
damages or limits or purports to have
25 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
30 (b) 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
(c) provides that a purchaser is not entitled
35 to damages, or is entitled only to a
limited amount of damages, in respect
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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
5 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
10 included in a contract of supply 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
15 body corporate.
(2) Subject to section 32MA, if there is a
contract of supply or a provision in or
relating to a contract of supply of a kind
referred to in section 32LA, the supplier is
20 guilty of an offence and liable to a penalty
not exceeding 60 penalty units, in the case of
a natural person or 120 penalty units, in the
case of a body corporate.
32MA. Limitation of liability generally
25 (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
30 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;
35 (ii) the repair of the goods;
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(iii) the payment of the cost of
replacing the goods or of
purchasing equivalent goods;
(iv) the payment of the cost of having
5 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.
10 (2) Sub-section (1) does not apply in relation to
a term of a contract of supply if the
purchaser establishes that it is
unconscionable for the supplier to rely on
that term of the contract of supply.
15 (3) In determining for the purposes of sub-
section (2) whether or not reliance on a term
of a contract of supply is unconscionable and
without in any way limiting the matters to
which a court or the Tribunal may have
20 regard, a court or the Tribunal may have
regard to all the circumstances of the case
and in particular to the following matters--
(a) the relative strengths of the bargaining
positions of the supplier and the
25 purchaser; and
(b) whether the term was reasonably
necessary for the protection of the
legitimate interests of the supplier; and
(c) whether the purchaser was able to
30 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,
35 among other things, to any custom of
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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
5 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
10 (e) the amount for which, and the
circumstances under which, the
purchaser could have been supplied
with identical or equivalent goods or
services from a person other than the
15 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
20 order of the purchaser.
(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.
25 (5) This section does not apply to allow a
limitation of liability for a breach of a
condition or warranty implied by section
32G or 32GA.
32N. Limitation of liability in relation to supply
30 of recreational services
(1) Subject to sub-section (2), a term of a
contract for the supply of recreational
services is not void under section 32L or
32LA by reason only that the term excludes,
35 restricts or modifies, or has the effect of
excluding, restricting or modifying--
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(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
5 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
10 32JA in relation to the supply of the
recreational services under the contract.
(2) Sub-section (1) only applies if--
(a) the contract for the supply of
recreational services was entered into
15 after the commencement of section 12
of the Fair Trading (Amendment)
Act 2002; and
(b) the exclusion, restriction or
modification contained in the term is
20 limited to liability for death or personal
injury; and
(c) the term is in the prescribed form (if
any) and contains the prescribed
particulars (if any); and
25 (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
30 (e) the term was signed by the purchaser
prior to the supply of the recreational
services.
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(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--
5 (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
10 section 32J or 32JA would apply;
or
(ii) give rise to the exercise of a right
conferred by section 32J or 32JA;
or
15 (iii) be a breach of a condition implied
by section 32J or 32JA; and
(b) the act or omission was done or omitted
to be done with reckless disregard, with
or without consciousness, for the
20 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
25 gradual development and whether of
genetic or other origin;
"injury" means any physical or mental
injury;
"personal injury" means--
30 (a) an injury of a natural person
(including the aggravation,
acceleration or recurrence of an
injury of the individual); or
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(b) the contraction, aggravation,
acceleration or recurrence of a
disease of a natural person; or
(c) the coming into existence, the
5 aggravation, acceleration or
recurrence of any other condition,
circumstance, occurrence, activity,
form of behaviour, course of
conduct or state of affairs in
10 relation to a natural that is or may
be harmful or disadvantageous to,
or result in harm or disadvantage
to--
(i) the person; or
15 (ii) the community;
"recreational services" means services that
consist of participation in--
(a) a sporting activity or a similar
leisure-time pursuit; or
20 (b) any other activity that--
(i) involves a significant degree
of physical exertion or
physical risk; and
(ii) is undertaken for the
25 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
30 provision of this Act other than this section.
32NA. Supplier to have reasonable opportunity
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
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32G(1), or in paragraph (a), (b) or (c) of
section 32G(3), or an express term to a
similar effect, the purchaser may not
discharge the contract on the ground of the
5 breach 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
10 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
15 reasonable time after the notice was
given, provided the title required by the
contract or removed the charge or
encumbrance, as the case may be.
32O. Acceptance of goods
20 (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
25 for rejecting the goods and discharging the
contract of supply unless there is a term of
the contract, express or implied, to that
effect.
(2) Sub-section (3) applies if under a contract of
30 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
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(b) the fact that they are so defective is
apparent at that time or becomes
apparent within a reasonable period
after that time; and
5 (c) the purchaser has not done any act or
thing by reason of which the goods
cannot be returned to the supplier in
substantially the same state as they
were in when they were delivered to the
10 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
15 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
20 (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
25 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
30 the meaning of section 42 of the Goods Act
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
35 which a purchaser under a contract of supply
of goods may, by reason of the breach of a
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condition referred to in section 32NA, reject
the goods and discharge the contract of
supply.
(6) Nothing in this section confers on a
5 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
10 delivery to the purchaser.
32OA. Rescission for innocent misrepresentation
(1) If a purchaser enters into a contract of supply
of goods after a misrepresentation that is not
fraudulent is made to the purchaser and, if
15 the misrepresentation had been fraudulent,
the purchaser would have been entitled to
rescind the contract of supply by reason of
the misrepresentation, the purchaser may
rescind the contract by notice given to the
20 supplier before, 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
25 goods.
(2) Sub-section (1) applies whether or not the
misrepresentation has become a term of the
contract of supply.
32P. Discharge or rescission of contract of
30 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
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(b) in accordance with section 32OA(1)
rescinds a contract of supply after a
misrepresentation that is not fraudulent
is made.
5 (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.
10 (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
15 a period of 21 days after discharging or
rescinding the contract of supply; and
(b) by the purchaser wilfully while the
goods are in the purchaser's possession
after the expiration of a period of
20 21 days after discharging or rescinding
the contract of supply.
(4) If the property in the goods passed to the
purchaser before the discharge or the
rescission, the property re-vests in the
25 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 of supply by the purchaser to the
30 supplier.
(6) If--
(a) the purchaser used the goods before the
discharge or rescission; and
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(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
5 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 of
the purchaser's use of the goods.
32PA. When does a discharge or rescission have
10 effect?
If a purchaser purports to discharge or
rescind a contract of supply of goods, the
purported discharge or rescission has effect
only if--
15 (a) the supplier is aware that the purchaser
treats the contract of supply 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
20 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
25 become aware that the purchaser treats
the contract of supply as at an end--
(i) the purchaser treats the contract of
supply as at an end; and
(ii) by the purchaser's conduct, shows
30 unequivocally that the purchaser
treats the contract of supply as at
an end.
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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
5 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--
10 (a) as against the supplier, the same right to
rescind the contract of supply and the
same right of action in damages as the
purchaser would have had if the
representation had been made by an
15 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
20 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,
25 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.
30 (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
35 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--
5 (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
10 goods or services from that
person; and
(b) if the antecedent negotiations were
conducted on behalf of a dealer, as
against the dealer the same right of
15 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
20 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
25 services supplied to the purchaser were
purchased by the supplier from a dealer by
whom or on whose behalf any antecedent
negotiations were conducted.
(4) Nothing in this section prevents a statement
30 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
35 suffered by the purchaser.
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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--
5 (a) by a person by whom any antecedent
negotiations were conducted who made
a representation or gave a warranty; and
(b) by a dealer on whose behalf any
antecedent negotiations were conducted
10 by another person who made a
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
15 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
20 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
25 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
30 based on or arising out of a representation or
a warranty referred to in section 32Q(1) or
(2), is void.
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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
5 conducted must not include or permit to be
included in a contract of supply a provision
that by reason of section 32R is void.
Penalty: 60 penalty units, in the case of a
natural person.
10 120 penalty units, in the case of a
body corporate.
Division 4--General
32S. Implied terms do not negative express terms
unless inconsistent
15 A condition or warranty implied by this Part
in a contract of supply 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.
20 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, the
liability of the guarantor in relation to the
25 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
30 contract of supply; and
(b) the reasonable costs of and incidental to
enforcing the contract of guarantee.
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(2) Subject to sub-section (3), a guarantor of the
obligations of a purchaser under a contract of
supply where the purchaser is a minor is
liable under the contract of guarantee to the
5 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
10 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
15 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--
20 "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
25 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
30 include a person who provides
domestic support and personal care to
the person--
(a) for fee or reward; or
(b) on behalf of another person or an
35 organisation (including a
government or government
agency, a body corporate or a
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charitable or benevolent
organisation);
"guarantee" includes indemnity;
"guarantor" means a person who enters
5 into a contract of guarantee in respect
of the performance of the obligations of
a purchaser under a contract of supply
or of a person who enters into a
contract of indemnity in relation to a
10 contract of supply but does not
include--
(a) a person who is the supplier, or
spouse or domestic partner of the
supplier of goods or services to
15 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
20 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
25 (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 a person who deals in
30 goods or services of the kind to
which the contract of supply
relates;
"spouse" of a person means a person to
whom the person is married.
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(5) For the purposes of the definition of
"domestic partner" in sub-section (4)--
(a) in determining whether persons are
domestic partners of each other, all the
5 circumstances of their relationship are
to be taken into account, including any
one or more of the matters referred to in
section 275(2) of the Property Law
Act 1958 as may be relevant in a
10 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
15 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, the amount secured in respect of the
liability of that person in respect of those
20 obligations does not exceed liability in
respect of the sum of--
(a) the amount for which the purchaser is
liable by reason of the breach of the
contract of supply; and
25 (b) the reasonable costs of, and incidental
to, enforcing the mortgage, charge,
pledge, lien or other security.
32TA. Contract of supply not illegal etc.
(1) A contract of supply is not illegal, void or
30 unenforceable by reason only that the
supplier is guilty of an offence under this
Part.
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(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 of supply, aid, abet, counsel or
5 procure the commission of the offence.'.
13. Insertion of new Part 2B
Before Part 3 of the Fair Trading Act 1999
insert--
'PART 2B--UNFAIR TERMS IN CONSUMER
10 CONTRACTS
32U. Definitions
For the purposes of this Part--
"consumer", in relation to a consumer
contract, means a person to whom
15 goods or services have been or are to be
supplied under the contract;
"injunction" includes interim injunction;
"prescribed unfair term" means a term
that is prescribed by the regulations to
20 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
25 industry, whether or not the contract
differs from other contracts used in that
industry;
"unfair term" has the meaning given by
section 32W.
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32V. Application of Part
This Part does not apply to contractual
terms--
(a) contained in a contract to which the
5 Consumer Credit (Victoria) Act 1995
applies;
(b) that are required or expressly permitted
by law, but only to the extent required
or permitted.
10 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
15 imbalance in the parties' rights and
obligations arising under the contract to the
detriment of the consumer.
32X. Assessment of unfair terms
Without limiting section 32W, in
20 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
25 unfair term and whether the term has the
object or effect of--
(a) permitting the supplier but not the
consumer to avoid or limit performance
of the contract;
30 (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;
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(d) permitting the supplier but not the
consumer to vary the terms of the
contract;
(e) permitting the supplier but not the
5 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;
10 (g) permitting the supplier unilaterally to
vary the characteristics of the goods or
services to be supplied under the
contract;
(h) permitting the supplier unilaterally to
15 determine whether the contract had
been breached or to interpret its
meaning;
(i) limiting the supplier's vicarious liability
for its agents;
20 (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;
25 (l) limiting the evidence the consumer can
lead in proceedings on the contract;
(m) imposing the evidential burden on the
consumer in proceedings on the
contract.
30 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.
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(3) The contract will continue to bind the parties
if it is capable of existing without the unfair
term.
(4) Sub-section (1) applies to any consumer
5 contract entered into on or after the
commencement of section 13 of the Fair
Trading (Amendment) Act 2002.
(5) Sub-section (2) applies to any standard form
contract whether entered into before or after
10 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.
15 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
20 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.
25 20 penalty units, in the case of a
body corporate.
32ZA. Injunctions to prevent continued use of
unfair terms
(1) The Director may apply to the Tribunal for
30 an injunction against any person who, in the
Director's opinion, is using, or
recommending the use of--
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(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
5 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
10 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
15 standard form contract, but to any similar
term or to a term having like effect, used or
recommended for use by any person.
32ZB. Director may require the supply of
information
20 (1) The Director may exercise the powers
conferred under this section for the purposes
of--
(a) facilitating the Director's consideration
of a complaint that--
25 (i) a term in a consumer contract is
an unfair term; or
(ii) a term in a standard form contract
is a prescribed unfair term; or
(b) ascertaining whether a person has
30 complied with a Tribunal order as to--
(i) the continued use, or
recommendation for use of a term
in a consumer contract; or
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(ii) the continued use of a prescribed
unfair term in a standard form
contract.
(2) The Director may, by notice in writing,
5 require any person to supply to the
Director--
(a) a copy of the document that is the
subject of the complaint or order
referred to in sub-section (1);
10 (b) information about the use or
recommendation for use by that person
of that document in dealings with
consumers.
(3) The notice referred to in sub-section (2) may
15 be varied or revoked by the Director by a
subsequent notice in writing.
(4) A person to whom the notice is addressed
must comply with the notice within 14 days
of receiving it.
20 (5) A person must not, without reasonable
excuse, refuse or fail to comply with a
requirement of the Director under this
section.
Penalty: 60 penalty units.
25 (6) It is a reasonable excuse for a natural person
to refuse or fail to give information or do any
other thing that the person is required to do
by or under this section, if the giving of the
information or the doing of that other thing
30 would tend to incriminate the person.
(7) Despite sub-section (6), it is not a reasonable
excuse for a natural person to refuse or fail to
produce a document that the person is
required to produce by or under this section,
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if the production of the document would tend
to incriminate the person.
32ZC. Declaration by the Tribunal
(1) The Director may apply to the Tribunal for
5 an order declaring that--
(a) a contract is a consumer contract or
standard form contract;
(b) a term of a consumer contract is an
unfair term;
10 (c) a term of a standard form contract is a
prescribed unfair term.
(2) The Tribunal may make a declaration in
relation to a matter under sub-section (1) or
any related matter.
15 (3) The Tribunal's power to make a declaration
under this section is exercisable only by a
presidential member.
32ZD. Advisory opinion by the Tribunal
(1) The Director may, in writing, refer to the
20 Tribunal for an advisory opinion any matter,
including but not limited to--
(a) whether a contract is a consumer
contract or standard form contract;
(b) whether a term of a consumer contract
25 is an unfair term;
(c) whether a term of a standard form
contract is a prescribed unfair term.
(2) The Tribunal may provide an advisory
opinion in relation to a matter under sub-
30 section (1) or any related matter.'.
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14. Interim ban order
After section 35(3) of the Fair Trading Act 1999,
insert--
"(4) An interim ban order may apply, adopt or
5 incorporate, wholly or partially or as
amended by the order, any matter contained
in any document as existing--
(a) from time to time; or
(b) at a particular time.".
10 15. Permanent or fixed term ban order
(1) Insert the following heading to section 39 of the
Fair Trading Act 1999--
"Permanent ban order or fixed term ban order
made after interim ban order".
15 (2) In section 39 of the Fair Trading Act 1999 after
"permanent ban order" insert "or a fixed term ban
order".
16. General power to make permanent ban order or fixed
term ban order
20 (1) Insert the following heading to section 40 of the
Fair Trading Act 1999--
"General power to make permanent ban order or
fixed term ban order".
(2) In section 40(1) of the Fair Trading Act 1999
25 after "permanent ban order" insert "or a fixed
term ban order".
(3) In section 40 of the Fair Trading Act 1999, for
sub-section (2) substitute--
"(2) The Minister must not make a permanent ban
30 order or a fixed term ban order under sub-
section (1) unless--
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(a) the Director recommends to the
Minister the making of that order; or
(b) in the case of a permanent ban order,
the supply of goods or services of that
5 kind has been permanently prohibited
or restricted under a law of the
Commonwealth or another State or
Territory of the Commonwealth by
reason of those goods or services being
10 dangerous; or
(c) in the case of a fixed term ban order,
the supply of goods or services of that
kind has been prohibited or restricted
for a specified period under a law of the
15 Commonwealth or another State or
Territory of the Commonwealth by
reason of those goods or services being
dangerous.".
(4) In section 40(3)(b)(ii) of the Fair Trading Act
20 1999, after "prohibited" insert "or restricted".
(5) In section 40 of the Fair Trading Act 1999, for
sub-section (4) substitute--
"(4) If a permanent ban order or fixed term ban
order is made under this section, any interim
25 ban order applying to the goods or services
to which the permanent ban order or fixed
term ban order relates is revoked.
(5) A permanent ban order or a fixed term ban
order may apply, adopt or incorporate,
30 wholly or partially or as amended by the
order, any matter contained in any document
as existing--
(a) from time to time; or
(b) at a particular time.".
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17. New section 41 substituted
For section 41 of the Fair Trading Act 1999
substitute--
"41. When does a permanent ban order or a
5 fixed term ban order take effect?
(1) A permanent ban order or fixed term ban
order must be published in the Government
Gazette.
(2) A permanent ban order or fixed term ban
10 order takes effect on the date on which it is
published in the Government Gazette.
(3) The Minister must determine the period
during which a fixed term ban order has
effect.
15 (4) Subject to section 43 and sub-section (5), at
the end of the term specified in a fixed term
ban order, the order ceases to have effect.
(5) Subject to section 43, at or prior to the end of
the term specified in a fixed term ban order
20 the Minister, by order published in the
Government Gazette, may--
(a) make a new fixed term ban order; or
(b) make a permanent ban order.".
18. Notice of order
25 In section 42 of the Fair Trading Act 1999 after
"permanent ban order" (wherever occurring)
insert "or a fixed term ban order".
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19. New section 43 substituted
For section 43 of the Fair Trading Act 1999
substitute--
"43. Revocation or amendment of permanent
5 ban order or fixed term ban order
The Minister may, by order published in the
Government Gazette, revoke or amend a
permanent ban order or a fixed term ban
order.".
10 20. Offence to contravene permanent ban order or fixed
term ban order
(1) Insert the following heading to section 44 of the
Fair Trading Act 1999--
"Offence to contravene permanent ban order or
15 fixed term ban order".
(2) In section 44 of the Fair Trading Act 1999 after
"permanent ban order" insert "or a fixed term ban
order".
21. Loss, injury or damage arising from a contravention
20 of this Division
In section 45(2)(a) of the Fair Trading Act 1999
after "interim ban order" insert ", a fixed term ban
order".
22. Compulsory recall
25 (1) In section 50(1)(a)(iii) of the Fair Trading Act
1999 after "interim ban order" insert ", a fixed
term ban order".
(2) After section 50(3) of the Fair Trading Act 1999
insert--
30 "(3A) A notice under sub-section (1) may apply,
adopt or incorporate, wholly or partially or
as amended by the notice, any matter
contained in any document as existing--
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(a) from time to time; or
(b) at a particular time.".
23. Review of ban order or compulsory recall notice
(1) Insert the following heading to section 57 of the
5 Fair Trading Act 1999--
"Review of ban order or compulsory recall
notice".
(2) In section 57(1) of the Fair Trading Act 1999,
after "interim ban order" insert ", a fixed term ban
10 order".
24. Substitution of Part heading
For the heading to Part 4 of the Fair Trading Act
1999 substitute--
"PART 4--OFF-BUSINESS-PREMISES
15 SALES AND OTHER SALES".
25. What is a contact sales agreement?
(1) In section 60(1)(b) of the Fair Trading Act
1999--
(a) in sub-paragraph (ii) for "purchaser; and"
20 substitute "purchaser; or";
(b) after sub-paragraph (ii) insert--
"(iii) any other premises (including the
business premises of the supplier), if
the purchaser is relying on the supplier
25 (or a person acting on behalf of the
supplier) for transport from the
premises; and".
(2) After section 60(3) of the Fair Trading Act 1999
insert--
30 "(4) Sections 62A to 62E do not apply to a
contact sales agreement referred to in sub-
section (1)(b)(iii).".
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26. Requirements for contact sales agreements
(1) In section 61(1) of the Fair Trading Act 1999 for
paragraph (c) substitute--
"(c) the agreement must be accompanied by a
5 notice completed in accordance with Part 2
of Schedule 2 which may be used by the
purchaser to cancel the agreement;".
(2) In sections 61(1)(d) and 61(1)(h)(ii) of the Fair
Trading Act 1999 omit "office".
10 (3) In section 61(1)(e) of the Fair Trading Act 1999,
after "handwritten)" insert "and otherwise must
comply with section 163".
(4) In section 61 of the Fair Trading Act 1999, for
sub-section (2) substitute--
15 "(2) The information required under sub-sections
(1)(a)(i) and (ii) and (1)(b) must be
conspicuous and prominent in the agreement
or notice (as the case may be).".
27. New sections 62A, 62B, 62C, 62D and 62E inserted
20 After section 62 of the Fair Trading Act 1999
insert--
'62A. Duty to obtain prior consent to visit
(1) For the purposes of this section "prior
consent to visit" means consent given by a
25 person to a supplier or to a person acting on
behalf of a supplier other than in the
presence of the supplier or person acting on
behalf of the supplier, to visit the premises of
that person for the purpose of negotiating a
30 contact sales agreement or for an incidental
or related purpose.
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Example: S, a mobile phone seller, knocks on
P's door on Friday afternoon and asks
P if she is interested in buying one of
S's mobile phones. P tells S she is busy.
5 S asks P if she can come back on Sunday
and P reluctantly agrees. This is not prior
consent to visit because it was given
face-to-face. If S had contacted P by
telephone, then it would have been prior
10 consent.
(2) Except with prior consent to visit, a supplier
or person acting on behalf of a supplier must
not visit the premises of a person for the
purpose of negotiations which may lead to a
15 contact sales agreement or for an incidental
or related purpose--
(a) at any time on a Sunday or a public
holiday; or
(b) on a Saturday--
20 (i) between midnight and 9.00 am; or
(ii) between 5.00 pm and midnight; or
(c) on any other day--
(i) between midnight and 9.00 am; or
(ii) between 6.00 pm and midnight.
25 Penalty: 120 penalty units, in the case of a
natural person.
240 penalty units, in the case of a
body corporate.
62B. Duty not to remain on premises for long
30 periods
(1) Subject to sub-section (2), a supplier or
person acting on behalf of a supplier who is
carrying on negotiations at a premises which
may lead to a contact sales agreement or for
35 an incidental or related purpose must not
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remain on the premises for more than one
hour.
Penalty: 120 penalty units, in the case of a
natural person.
5 240 penalty units, in the case of a
body corporate.
(2) Sub-section (1) does not apply if--
(a) the supplier or person acting on behalf
of a supplier remains on the premises
10 with the consent of the person with
whom the negotiations are being
conducted ("the prospective
purchaser"); and
(b) either the consent--
15 (i) complies with sub-section (3); or
(ii) was obtained prior to the visit and
the visit is for the purpose of
negotiating with at least three
prospective purchasers for the
20 supply of goods or services ("a
party plan").
Example: S, a kitchenware seller, telephones P on
Friday afternoon and asks P if she is
interested in hosting a kitchenware party
25 at her house on Sunday. S tells P that the
party will last around 4 hours and she
should invite her friends. If P agrees and
there are at least 3 prospective purchasers
in attendance at the party, S will not be
30 breaching section 62B(1).
(3) A consent under sub-section (2)(b)(i)--
(a) must be in writing; and
(b) must only apply to a period of one half
hour; and
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(c) must not be given during a period
referred to in section 62A(2).
(4) More than one consent may be provided
under sub-section (3).
5 (5) Nothing in this section limits the operation
of section 62C.
62C. Duty to leave premises
A supplier or a person acting on behalf of a
supplier who is carrying on negotiations at a
10 premises which may lead to a contact sales
agreement or for an incidental or related
purpose must leave the premises
immediately on the request of--
(a) the occupier of the premises; or
15 (b) any person acting with the actual or
implied authority of the occupier; or
(c) the prospective purchaser.
Penalty: 120 penalty units, in the case of a
natural person.
20 240 penalty units, in the case of a
body corporate.
62D. Duty to produce identification
(1) A supplier or a person acting on behalf of a
supplier who is carrying on negotiations
25 which may lead to a contact sales agreement
or for an incidental or related purpose, must
produce evidence of his or her identity--
(a) on his or her first entering into
negotiations; and
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(b) at any time after that, if so requested by
the prospective purchaser.
Penalty: 120 penalty units, in the case of a
natural person.
5 240 penalty units, in the case of a
body corporate.
(2) Evidence of identification under sub-section
(1) must show the full name of the person,
the name of the business (if any) which the
10 person is representing and the business or
residential address of the person.
62E. Duty to inform
Before commencing negotiations which may
lead to a contact sales agreement, a supplier
15 or person acting on behalf of a supplier must
orally inform the prospective purchaser that
the supplier or person acting on behalf of a
supplier--
(a) is not permitted to remain on the
20 premises for more than one hour unless
the prospective purchaser has given
prior consent in accordance with
section 62B(2)(b)(ii) or consents in
writing to an extension in accordance
25 with section 62B(3); and
(b) must leave the premises if requested to
do so by the prospective purchaser, the
occupier or a person acting on behalf of
the occupier.
30 Penalty: 120 penalty units, in the case of a
natural person.
240 penalty units, in the case of a
body corporate.'.
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28. When can the purchaser cancel the agreement?
(1) In section 63 of the Fair Trading Act 1999 for
sub-section (1) substitute--
"(1) The purchaser under a contact sales
5 agreement may cancel the agreement by
giving notice of cancellation to the supplier
within 10 days from and including the day
on which the agreement was made or within
such longer period as the agreement may
10 provide.
(1A) Without limiting sub-section (1), if a supplier
or a person acting on behalf of a supplier
represents to the purchaser that the purchaser
may cancel the agreement in a manner other
15 than in accordance with sub-section (1), (3)
or (5), the purchaser may cancel the
agreement in that manner.".
(2) In section 63(2) of the Fair Trading Act 1999,
for "30 clear days" substitute "6 months".
20 (3) After section 63(2) of the Fair Trading Act 1999
insert--
"(2A) If a supplier or a person acting on behalf of a
supplier does not comply with sections 62A
to 62E in relation to negotiations leading to a
25 contact sales agreement, the purchaser under
the agreement may cancel the agreement by
giving notice of cancellation to the supplier
within the period of 3 months from and
including the day on which the agreement
30 was made.".
(4) In section 63(3) and (5) of the Fair Trading Act
1999, for "A notice" substitute "Subject to sub-
section (1A), a notice".
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29. What can the supplier charge on cancellation?
(1) In section 66 of the Fair Trading Act 1999, for
sub-sections (2) and (3) substitute--
"(2) If a contact sales agreement is cancelled
5 under this Division, a supplier is not entitled
to charge for services provided under the
agreement before it is cancelled, except in
accordance with this section.
(3) If a purchaser cancels a contact sales
10 agreement under this Division, the supplier
may apply to the Tribunal for an order that
the purchaser must pay to the supplier a
reasonable amount (to be determined by the
Tribunal) for services provided under the
15 agreement before it was cancelled.
(3A) The Tribunal must not make an order under
sub-section (3) unless the Tribunal is
satisfied that the supplier or a person acting
on behalf of the supplier has not contravened
20 this Act in relation to the contact sales
agreement.".
30. New Division 2A inserted in Part 4
In Part 4 of the Fair Trading Act 1999, after
Division 2 insert--
25 'Division 2A--Telephone Marketing
Agreements
67A. What is a telephone marketing agreement?
(1) An agreement is a telephone marketing
agreement if--
30 (a) it is an agreement negotiated over the
telephone for the supply in trade or
commerce of goods or services of a
kind ordinarily used for personal,
household or domestic use; and
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(b) the total consideration payable by the
purchaser under the agreement--
(i) is not ascertainable at the time of
making the agreement; or
5 (ii) is ascertainable at the time of
making the agreement and
exceeds $50.
(2) Despite sub-section (1), the following are not
telephone marketing agreements--
10 (a) an agreement solely for the provision of
credit;
(b) a contract of guarantee;
(c) a mortgage.
(3) If--
15 (a) 2 or more agreements relate
substantially to the same transaction;
and
(b) the transaction could have been
effected by a single agreement which
20 would have constituted a telephone
marketing agreement--
then--
(c) each of the agreements that would not,
if it stood alone, constitute a telephone
25 marketing agreement becomes a
telephone marketing agreement; and
(d) for the purpose of ascertaining the
cooling-off period in relation to each of
the agreements, each agreement is
30 deemed to have been made when the
last of the agreements was made.
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67B. Requirements for telephone marketing
agreements
(1) The following requirements must be
complied with in relation to a telephone
5 marketing agreement--
(a) the agreement must set out in full all
the terms of the agreement, including--
(i) the total consideration to be paid
or provided by the purchaser
10 under the agreement or, if the total
consideration is not ascertainable
at the time the agreement is made,
the manner in which it is to be
calculated;
15 (ii) any postal or delivery charges to
be paid by the purchaser;
(b) the agreement must include on the front
page of the agreement a notice which--
(i) must, in accordance with Part 1 of
20 Schedule 2, advise the purchaser
of the right to cancel the
agreement; and
(ii) must be signed by the purchaser;
(c) the agreement must be accompanied by
25 a notice completed in accordance with
Part 2 of Schedule 2 which may be used
by the purchaser to cancel the
agreement;
(d) the agreement must set out in full the
30 name and business address (not being a
post box) of the supplier;
(e) the agreement must be printed clearly
or typewritten (apart from any
amendments to the printed or
35 typewritten form which may be
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handwritten) and otherwise must
comply with section 163;
(f) the agreement must be signed by the
purchaser;
5 (g) any amendments to the agreement must
be signed by both parties to the
agreement;
(h) if the agreement is signed by a person
on behalf of the supplier, the agreement
10 must--
(i) state that the person is acting on
behalf of the supplier; and
(ii) set out in full the name of that
person and the business address
15 (not being a post box) of that
person, or, if that person does not
have a business address, the
residential address of that person.
(2) The information required under sub-sections
20 (1)(a)(i) and (ii) and (1)(b) must be
conspicuous and prominent in the agreement
or notice (as the case may be).
(3) The Director may approve an agreement or
class of agreements which do not comply
25 with the requirements of sub-section (1) or
(2) if the Director is satisfied that the
agreements provide a level of disclosure
substantially equivalent to the requirements
of that sub-section.
30 (4) An agreement approved or in a class
approved under sub-section (3) is not
required to comply with sub-section (1)
or (2).
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(5) The supplier must send to the purchaser
2 copies of the agreement signed by or on
behalf of the supplier and the Schedule 2
notice.
5 67C. When is a telephone marketing agreement
entered into or made?
A telephone marketing agreement is entered
into or made on the day that it is signed by
the purchaser.
10 67D. Supplier must comply with requirements
(1) If section 67B is not complied with in
relation to a telephone marketing agreement,
the supplier under the agreement and any
person entering into the agreement on behalf
15 of the supplier are each guilty of an offence
and liable to a penalty of not more than--
(a) 120 penalty units, in the case of a
natural person; or
(b) 240 penalty units, in the case of a body
20 corporate.
(2) The supplier under a telephone marketing
agreement cannot enforce the agreement
against the purchaser if the supplier or a
person entering into the agreement on behalf
25 of the supplier fails to comply with
section 67B.
67E. Duty to cease telephone marketing
A supplier or a person acting on behalf of a
supplier who is carrying on negotiations on
30 the telephone which may lead to a telephone
marketing agreement or for an incidental or
related purpose must--
(a) cease those negotiations immediately
on the request of the prospective
35 purchaser; and
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(b) refrain from contacting the prospective
purchaser for 30 days afterwards.
Penalty: 60 penalty units, in the case of a
natural person.
5 120 penalty units, in the case of a
body corporate.
67F. When can the purchaser cancel the
agreement?
(1) The purchaser under a telephone marketing
10 agreement may cancel the agreement by
giving notice of cancellation to the supplier
within 10 days from and including the day
on which the agreement was made or within
such longer period as the agreement may
15 provide.
(2) Without limiting sub-section (1), if a supplier
or a person acting on behalf of a supplier
represents to the purchaser that the purchaser
may cancel the agreement in a manner other
20 than in accordance with sub-section (1), (4)
or (6), the purchaser may cancel the
agreement in that manner.
(3) If a telephone marketing agreement (other
than an agreement approved or in a class
25 approved under section 67B(3)) does not
comply with section 67B(1)(b) and (c), the
purchaser under the agreement may cancel
the agreement by giving notice of
cancellation to the supplier within 6 months
30 from the day on which the agreement was
made.
(4) Subject to sub-section (2), a notice of
cancellation must be in writing and may be
given in the form of the notice in Part 2 of
35 Schedule 2.
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(5) Sub-section (3) does not apply to an
agreement approved or in a class approved
under section 67B(3) if the Director
approves a different method of notice of
5 cancellation in the case of that agreement or
class of agreements.
(6) Subject to sub-section (2), a notice of
cancellation under this section may be
given--
10 (a) by leaving it at or posting it to the
business address of the supplier or other
address of the supplier shown on the
form of notice of cancellation
accompanying the agreement; or
15 (b) by faxing it to the facsimile number of
the supplier shown on that form; or
(c) if the form of notice of cancellation
does not accompany the agreement, by
leaving it at or posting it to the last
20 known place of business of the
supplier.
67G. What is the effect of cancellation?
(1) If a telephone marketing agreement is
cancelled during the cooling-off period, the
25 agreement is deemed to have been rescinded
by mutual consent.
(2) If a telephone marketing agreement is
cancelled during the cooling-off period, any
related contract or instrument is void.
30 (3) Sub-section (2) does not affect the operation
of the Consumer Credit (Victoria) Code in its
application to a tied loan contract as defined
in that Code.
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67H. What must the supplier do on cancellation?
(1) If a telephone marketing agreement is
cancelled within the cooling-off period, the
supplier must immediately repay to the
5 purchaser any money paid by the purchaser
under the agreement or a related contract or
instrument.
(2) If a telephone marketing agreement is
cancelled within the cooling-off period, the
10 supplier must return to the purchaser any
goods taken as a trade-in under or in respect
of the agreement.
(3) The goods must be returned within 10 days
after the supplier receives the notice of
15 cancellation of the agreement.
(4) The goods must be returned in a condition
substantially as good as when the goods were
taken.
(5) If the supplier has disposed of the goods
20 taken as a trade-in under or in respect of the
agreement before the cancellation of the
agreement, the supplier must pay to the
purchaser the reasonable cost of replacing
the goods.
25 67I. What can the supplier charge on
cancellation?
(1) The supplier under a telephone marketing
agreement may make a reasonable charge for
any goods which the purchaser is unable to
30 return on cancellation of the agreement
under this Division.
(2) If a telephone marketing agreement is
cancelled under this Division, a supplier is
not entitled to charge for services provided
35 under the agreement before it is cancelled,
except in accordance with this section.
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(3) If a purchaser cancels a telephone marketing
agreement under this Division, the supplier
may apply to the Tribunal for an order that
the purchaser must pay to the supplier a
5 reasonable amount (to be determined by the
Tribunal) for services provided under the
agreement before it was cancelled.
(4) The Tribunal must not make an order under
sub-section (3) unless the Tribunal is
10 satisfied that the supplier or a person acting
for the supplier has not contravened this Act
in relation to the telephone marketing
agreement.
(5) The supplier may deduct an amount payable
15 by a purchaser under this section from any
money required to be paid to the purchaser
under section 67H.
67J. What must the purchaser do on
cancellation?
20 (1) If the purchaser under a telephone marketing
agreement for the supply of goods cancels
the agreement during the cooling-off period,
the purchaser must immediately--
(a) return the goods to the supplier; or
25 (b) notify the supplier of the place where
the supplier may collect the goods.
(2) If a purchaser gives a notice to a supplier
under sub-section (1) and the supplier does
not collect the goods within 30 days after the
30 cancellation of the agreement, the goods
become the property of the purchaser free of
any other right or interest.
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(3) If the purchaser under a contact sales
agreement fails to take reasonable care of
goods which are returned to a supplier or
collected by a supplier under this section, the
5 purchaser is liable to pay compensation to
the supplier for any damage to or
depreciation in the value of the goods.'.
31. What is a non-contact sales agreement?
In section 68(2) of the Fair Trading Act 1999--
10 (a) in paragraph (c), for "mortgage." substitute
"mortgage;";
(b) after paragraph (c) insert--
"(d) a telephone marketing agreement.".
32. Requirements for non-contact sales agreements
15 In section 69 of the Fair Trading Act 1999, for
sub-section (2) substitute--
"(2) If a non-contact sales agreement is in
writing--
(a) the document must comply with
20 section 163 and must include the full
business address of the supplier; and
(b) the information under sub-section (1),
and the full business address of the
supplier, must be conspicuous and
25 prominent in the agreement.".
33. New section 70A inserted
After section 70 of the Fair Trading Act 1999
insert--
"70A. Duty to cease telephone marketing for non-
30 contact sale
A supplier or a person acting on behalf of a
supplier who is carrying on negotiations on
the telephone which may lead to a non-
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contact sale agreement or for an incidental or
related purpose must--
(a) cease those negotiations immediately
on the request of the prospective
5 purchaser; and
(b) refrain from contacting the prospective
purchaser for 30 days afterwards.
Penalty: 60 penalty units, in the case of a
natural person.
10 120 penalty units, in the case of a
body corporate.".
34. When can the purchaser cancel the agreement?
In section 71(2) of the Fair Trading Act 1999,
for "5 business days after" substitute "10 days
15 from and including".
35. Sections 76, 77 and 78 revoked
Sections 76, 77 and 78 of the Fair Trading Act
1999 are repealed.
36. Trade-in not to be sold during cooling-off period
20 In section 79 of the Fair Trading Act 1999, after
"contact sales agreement" insert ", a telephone
marketing agreement".
37. New section 80 substituted
For section 80 of the Fair Trading Act 1999
25 substitute--
"80. Prohibition on payment for services during
cooling-off period
A supplier must not require or accept
payment from a purchaser under a contact
30 sales agreement, a telephone marketing
agreement or a non-contact sales agreement
during the cooling-off period for that
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agreement for services provided under that
agreement during that period.
Penalty: 120 penalty units, in the case of a
natural person.
5 240 penalty units, in the case of a
body corporate.".
38. Certain provisions in agreements void
In section 81 of the Fair Trading Act 1999, after
"contact sales agreement" (wherever occurring)
10 insert ", a telephone marketing agreement".
39. Statement of lay-by terms
(1) In section 83(1)(b)(v) of the Fair Trading Act
1999, for "agreement" substitute "lay-by".
(2) After section 83(1)(b)(vi) of the Fair Trading
15 Act 1999, insert--
"(vii) the purchaser's right to cancel the lay-by and
the procedure to be followed should the
purchaser wish to cancel the lay-by; and
(viii) the full name and business address (not being
20 a post box) of the supplier; and".
40. New section 84A inserted
After section 84 of the Fair Trading Act 1999
insert--
"84A. Lay-by goods must be available
25 A supplier must not enter into a lay-by if the
supplier is aware that the goods will not be
available, or has no reasonable grounds to
expect the goods will be available, for
delivery to or collection by the purchaser
30 when the terms of the lay-by indicated they
would be available.
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Penalty: 60 penalty units, in the case of a
natural person.
120 penalty units, in the case of a
body corporate.".
5 41. Cancellation of lay-by by purchaser
(1) After section 85(1) of the Fair Trading Act 1999,
insert--
"(1A) If a supplier does not agree to accept an oral
cancellation of a lay-by, the supplier must
10 provide to the purchaser a prescribed
cancellation form--
(a) if the request for oral cancellation is
made in person, by immediately
handing it to the purchaser; or
15 (b) if the request for oral cancellation is
made by telephone, by posting it to the
purchaser as soon as practicable.
Penalty: 60 penalty units, in the case of a
natural person.
20 120 penalty units, in the case of a
body corporate.".
(2) In section 85(2)(a)(ii) of the Fair Trading Act
1999 for "agreement" substitute "lay-by".
42. Cancellation where business closes
25 (1) In section 88 of the Fair Trading Act 1999 for
"agreement proposes to stop trading before the
agreement" substitute "proposes to stop trading
before the lay-by".
(2) In section 88(a) of the Fair Trading Act 1999 for
30 "agreement" substitute "lay-by".
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43. Cancellation charge must not exceed a reasonable
amount
In section 90(1) of the Fair Trading Act 1999 for
"agreement in which there is to be provision for a
5 cancellation charge, the supplier must not enter
into the agreement unless the agreement"
substitute "in which there is to be provision for a
cancellation charge, the supplier must not enter
into the lay-by unless the lay-by".
10 44. Director of Consumer Affairs Victoria
(1) Insert the following heading to section 98 of the
Fair Trading Act 1999--
"Director of Consumer Affairs Victoria".
(2) In section 98 of the Fair Trading Act 1999, for
15 "Consumer and Business Affairs" substitute
"Consumer Affairs Victoria".
45. Functions and powers of the Director
(1) In section 100(1) of the Fair Trading Act 1999--
(a) in paragraph (a) after "Act" insert "or a
20 Consumer Act";
(b) in paragraph (b) after "Act" insert "or a
Consumer Act";
(c) in paragraph (c) after "regulations" insert "or
of a Consumer Act or the regulations under a
25 Consumer Act";
(d) in paragraph (d) after "regulations" insert
"or of a Consumer Act or the regulations
under a Consumer Act";
(e) in paragraph (e) after "Act" insert "or with a
30 Consumer Act".
(2) In section 101 of the Fair Trading Act 1999 after
"delegation" insert "or a power of the Director
under section 106I".
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46. Part 8 headings amended
(1) For the heading to Part 8 of the Fair Trading Act
1999 substitute--
"PART 8--POWERS OF DIRECTOR".
5 (2) After the heading to Part 8 of the Fair Trading
Act 1999 insert the heading--
"Division 1--Disputes"
47. Conciliation
In section 104 of the Fair Trading Act 1999--
10 (a) in sub-section (1) for "fair trading employee"
substitute "consumer affairs employee";
(b) in sub-section (4) for "fair trading
employee" substitute "consumer affairs
employee".
15 48. Power of the Director to institute and defend
proceedings
In section 105 of the Fair Trading Act 1999, for
sub-section (2) substitute--
"(2) The Director must not, under sub-section (1),
20 institute or defend proceedings on behalf of a
person unless that person has given consent
in writing.
(3) After consent has been given under sub-
section (2), the Director may institute or
25 continue with a proceeding or defence on
behalf of a person even if the person revokes
the consent.".
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49. Proceedings and costs
(1) In section 106(1) of the Fair Trading Act 1999--
(a) in paragraph (c) for "an amount" (where first
occurring) substitute "subject to sub-
5 sections (1A) and (1B), an amount";
(b) in paragraph (e) for "the person" substitute
"subject to sub-section (1A), the person".
(2) After section 106(1) of the Fair Trading Act
1999, insert--
10 "(1A) If the Director institutes, defends or
continues proceedings on behalf of a person
after the person revokes the consent to the
proceedings or defence--
(a) the Director must compensate the
15 person for--
(i) any loss suffered as the result of
the loss of any settlement offer
made to the person; and
(ii) out-of-pocket expenses incurred
20 by the person during the
proceedings after the revocation of
consent; and
(b) the Director is liable to pay any amount
awarded against the person in the
25 proceedings.
(1B) If the Director institutes, defends or
continues proceedings on behalf of a person
after the person revokes the consent to the
proceedings or defence, any amount
30 recovered in the proceedings (including any
amount for costs) that exceeds the amount
payable to the person under sub-section (1A)
may be applied to the payment of the costs
of, and incidental to, the proceedings for
35 which the Director is liable or that are
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incurred by the Director in relation to the
proceedings.".
50. New Divisions 2, 3 and 4 inserted in Part 8
After section 106 of the Fair Trading Act 1999,
5 insert--
'Division 2--Suppliers
106A. Substantiation of claims
(1) The Director may, by notice in writing,
require a person who publishes or causes to
10 be published a statement promoting, or
apparently intending to promote, the supply
of goods or services, to provide to the
Director, within the period specified in the
notice, proof of any claim or representation
15 made in the statement.
(2) A person on whom a notice under this
section is served, who--
(a) fails to provide proof sufficient to
support the claim or representation; or
20 (b) fails, without reasonable excuse, to
provide that proof by the time specified
in the notice; or
(c) provides information which is false or
misleading--
25 is guilty of an offence and liable to a penalty
not exceeding--
(d) 600 penalty units, in the case of a
natural person; or
(e) 1200 penalty units, in the case of a
30 body corporate.
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106B. "Show cause" notice
(1) The Director may, by notice in writing,
require a supplier to show cause why the
supplier should be allowed to continue
5 carrying on the business of supplying goods
or services.
(2) The Director may issue a notice under sub-
section (1) if the Director is of the opinion
that there are reasonable grounds to believe
10 that--
(a) the supplier has engaged in conduct that
contravenes this Act or the regulations;
and
(b) it is likely that the supplier will
15 continue to engage in that conduct; and
(c) there is a danger that a person may
suffer harm, loss or damage as a result
of that conduct unless action is taken
urgently.
20 (3) A notice under sub-section (1) must--
(a) be served--
(i) personally on a supplier who is a
natural person; or
(ii) at the registered office and the last
25 known business address of a
supplier that is a corporation; or
(iii) at the last known business address
of a supplier that is a body
corporate, other than a
30 corporation;
(b) specify the conduct which the supplier
is believed to have engaged in;
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(c) state the time period within which the
supplier must respond to the notice, that
time period being not less than 14 days
from the date of service of the notice;
5 (d) state what steps need to be taken by the
supplier to respond to the notice;
(e) state the consequences for the supplier
of not responding to the notice.
(4) Despite sub-section (3)(a)(i), if, on the
10 application of the Director, it appears to the
Tribunal that service cannot be promptly
effected on a supplier who is a natural
person, the Tribunal may order that the
notice be served--
15 (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
(b) by leaving it at the person's usual or last
20 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) If a supplier has not responded to a notice
25 under this section in accordance with sub-
section (3) within the period specified in the
notice, the supplier must, at the end of that
period, cease to carry on a business of
supplying goods or services to which the
30 notice relates or any business of a like kind.
Penalty: 600 penalty units, in the case of a
natural person.
1200 penalty units, in the case of a
body corporate.
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(6) A supplier to whom a notice under this
section applies may apply to the Tribunal for
a review of the decision to issue the notice.
(7) A supplier must not, in response to the
5 notice, make a statement to the Director that
is false or misleading in a material particular.
Penalty: 600 penalty units, in the case of a
natural person.
1200 penalty units, in the case of a
10 body corporate.
Division 3--Licence Suspension
106C. Definitions
In this Division--
"licence" means--
15 (a) a licence issued or granted
under--
(i) the Estate Agents Act 1980;
or
(ii) the Motor Car Traders Act
20 1986; or
(iii) the Prostitution Control
Act 1994; or
(iv) the Travel Agents Act 1986;
or
25 (b) a right to act as an agent's
representative within the meaning
of the Estate Agents Act 1980; or
(c) a right to participate in a customer
service capacity in the business of
30 a motor car trader within the
meaning of the Motor Car
Traders Act 1986; or
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(d) an approval under Division 5 of
Part 3 of the Prostitution Control
Act 1994; or
(e) a registration granted under Part 4
5 of the Consumer Credit
(Victoria) Act 1995; or
(f) a right to engage in finance
broking within the meaning of
Part 4A of the Consumer Credit
10 (Victoria) Act 1995; or
(g) a right to act as an introduction
agent within the meaning of the
Introduction Agents Act 1997;
or
15 (h) a registration or endorsement of
registration under the Second-
Hand Dealers and Pawnbrokers
Act 1989;
"licence suspension period" in relation to a
20 licence, means the period--
(a) commencing on the date of
service of the notice in relation to
the licence under section 106D;
and
25 (b) ending on--
(i) the lapsing of the suspension
of the licence under
section 106F; or
(ii) the date of an order referred
30 to in section 106F(2) relating
to the suspension of the
licence;
"licensee", in relation to a licence, means
the person who is the holder of the
35 licence.
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106D. Director may suspend licence
(1) Despite anything to the contrary in a
business licensing Act or any other Act or
law other than this Division, the Director
5 may suspend a licence by notice in writing
issued to the licensee.
(2) The Director may only suspend a licence
under this section if the Director has
reasonable grounds to believe that--
10 (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
15 proceedings for an offence or for an
injunction; and
(b) it is likely that the licensee will
continue to engage in that conduct; and
(c) there is a danger that a person may
20 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--
25 (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
30 (iii) at the last known business address
of a licensee that is a body
corporate, other than a
corporation;
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(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;
5 (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 Director, it appears to the
10 Tribunal that service cannot be promptly
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
15 electronic transmission to the person at
his or her usual or last known
residential or business address; or
(b) by leaving it at the person's usual or last
known residential or business address
20 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.
25 106E. 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 Division.
(2) If a notice is issued under this Division
30 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
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(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--
5 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 Division
suspending a licensee's right to act as an
10 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.
15 (4) If a notice is issued under this Division
suspending a licensee's 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, the
20 licensee is deemed, for the purposes of that
Act, not to be permitted to be employed in a
customer service capacity by a motor car
trader for the licence suspension period.
(5) If a notice is issued under this Division
25 suspending an approval under Division 5 of
Part 3 of the Prostitution Control Act 1994,
the approval is deemed to be suspended for
the purposes of that Act for the licence
suspension period.
30 (6) If a notice is issued under this Division
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
35 that Part for the licence suspension period.
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(7) If a notice is issued under this Division
suspending a licensee's right to engage in
finance broking within the meaning of
Part 4A of the Consumer Credit (Victoria)
5 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 Division
10 suspending a licensee's right to act as an
introduction agent within the meaning of the
Introduction Agents Act 1997, the licensee
is deemed to be disqualified from acting as
an introduction agent for the purposes of that
15 Act for the licence suspension period.
(9) If a notice is issued under this Division
suspending the registration or endorsement
of registration of a licensee under the
Second-Hand Dealers and Pawnbrokers
20 Act 1989, the registration or endorsement is
deemed to be suspended for the purposes of
that Act for the licence suspension period.
106F. Lapsing or continuation of suspension
(1) A suspension under this Division lapses if
25 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
30 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.
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(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
5 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--
10 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 Director must not
serve another notice on the licensee under
15 this Division for a period of 6 months from
the date of service of the first notice.
(4) The power conferred by this Division is in
addition to and does not limit or displace a
power conferred on the Director or any other
20 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--
25 (a) 14 days; or
(b) if the Tribunal or a court makes an
order under section 106G extending
that period, that extended period.
106G. Extension of period
30 (1) The Director may apply to the Tribunal or
the court within 14 days after the service of a
notice under section 106D or, if an extension
of that period has been granted under this
section, before the end of the period of the
35 extension, to extend the period within which
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an application must be made or proceedings
commenced for the purposes of section
106F(1) and (2).
(2) On an application under sub-section (1), the
5 Tribunal or court--
(a) must consider the likelihood that an
application or proceedings referred to
in section 106F(1) and (2) will be made
or commenced; and
10 (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
15 exceeding 14 days.
(4) The Tribunal or court may adjourn any
application under this section to enable
notice of the application to be given to any
person.
20 106H. Right of review
A licensee may apply to the Tribunal for a
review of the decision to issue a notice under
this Division.
Division 4--Obtaining Information,
25 Documents and Evidence
106I. Power to obtain information, documents
and evidence
(1) If the Director believes that a person is
capable of providing information, producing
30 documents or giving evidence relating to a
matter that constitutes, or may constitute, a
contravention of this Act, the Director may,
by notice in writing, require that person--
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(a) to provide to the Director, by writing
signed by that person or, in the case of
a body corporate, by a competent
officer of the body corporate, within the
5 time and in the manner specified in the
notice, that information; or
(b) to produce to the Director, or to a
person specified in the notice acting on
the Director's behalf, in accordance
10 with the notice, those documents; or
(c) to appear before the Director at a time
and place specified in the notice to give
that evidence, either orally or in
writing, and produce those documents.
15 (2) The Director may require the evidence
referred to in sub-section (1)(c) to be given
on oath or affirmation and for that purpose
may administer an oath or affirmation.
(3) A person must not--
20 (a) refuse or fail to comply with a notice
under this section to the extent that the
person is capable of complying with it;
or
(b) in purported compliance with a notice
25 under this section, knowingly provide
information or give evidence that is
false or misleading; or
(c) obstruct or hinder the Director in
exercising a power under this section.
30 Penalty: 60 penalty units.
(4) Subject to sub-section (5), a person is not
excused from answering a question,
providing information or producing or
permitting the inspection of a document on
35 the ground that the answer, information or
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document may tend to incriminate the
person.
(5) Despite sub-section (4), the answer by a
person to any question asked in a notice
5 under this section or the provision by a
person of any information in compliance
with a notice under this section, is not
admissible in evidence against the person--
(a) in the case of a person not being a body
10 corporate--in any criminal proceedings
other than proceedings under this
section; or
(b) in the case of a body corporate--in any
criminal proceedings other than
15 proceedings under this Act.
106J. Powers in relation to documents
If any documents are produced to the
Director under this Division, the Director
may--
20 (a) inspect the documents or authorise a
person to inspect the documents;
(b) make copies of or take extracts of the
documents;
(c) seize the documents if the Director--
25 (i) considers the documents
necessary for obtaining evidence
for the purpose of any proceedings
against any person under this Act
or the regulations; or
30 (ii) considers the documents
necessary for obtaining evidence
for the purpose of any proceedings
against any person under any
other Consumer Act or the
35 regulations under that Act; or
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(iii) believes on reasonable grounds
that it is necessary to seize the
documents to prevent their
concealment, loss or destruction
5 or their use in the contravention of
any Consumer Act;
(d) secure any seized documents against
interference;
(e) retain possession of the documents in
10 accordance with this Division.
106K. Copies of seized documents
(1) If the Director retains possession of a
document seized from a person under this
Division, the Director must give the person,
15 within 21 days of the seizure, a copy of the
document certified as correct by the Director.
(2) A copy of a document certified under sub-
section (1) shall be received in all courts and
tribunals to be evidence of equal validity to
20 the original.
106L. Retention and return of seized documents
(1) If the Director seizes a document under this
Division, the Director must take reasonable
steps to return the document to the person
25 from whom it was seized if the reason for its
seizure no longer exists.
(2) If the document seized has not been returned
within 3 months after it was seized, the
Director must take reasonable steps to return
30 it unless--
(a) proceedings for the purpose for which
the document was retained have
commenced within that 3 month period
and those proceedings (including any
35 appeal) have not been completed; or
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(b) the Magistrates' Court makes an order
under section 106M extending the
period during which the document may
be retained.
5 106M. Magistrates' Court may extend 3 month
period
(1) The Director may apply to the Magistrates'
Court--
(a) within 3 months after seizing a
10 document under this Division; or
(b) if an extension has been granted under
this section, before the end of the
period of the extension--
for an extension (not exceeding 3 months) of
15 the period for which the Director may retain
the document but so that the total period of
retention does not exceed 12 months.
(2) The Magistrates' Court may order such an
extension if it is satisfied that--
20 (a) it is in the interests of justice; and
(b) the total period of retention does not
exceed 12 months; and
(c) retention of the document is
necessary--
25 (i) for the purposes of an
investigation into whether a
contravention of this Act or the
regulations has occurred; or
(ii) to enable evidence of a
30 contravention of this Act or the
regulations to be obtained for the
purposes of a proceeding under
this Act.
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(3) The Magistrates' Court must consider the
interests of the owner of the document or
thing and may adjourn an application to
enable notice of the application to be given
5 to any person.
106N. Complaints
(1) Any person may complain to the Secretary
about the exercise of a power by the Director
under this Division.
10 (2) The Secretary must--
(a) investigate any complaint made to the
Secretary; and
(b) provide a written report to the
complainant on the results of the
15 investigation.
106O. Service of documents
(1) A written requirement by the Director under
this Division may be given personally or by
registered post to a person--
20 (a) at the last known place of business,
employment or residence of the person;
or
(b) in the case of a body corporate, at the
registered office of the body corporate.
25 (2) A person who provides a document or
information in response to a requirement of
the Director under this Division may send
that document or information to the Director
by registered post.
30 106P. Confidentiality
(1) The Director must not, except to the extent
necessary to carry out the Director's
functions under this Act, give to any other
person, whether directly or indirectly, any
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information acquired by the Director in
carrying out those functions.
Penalty: 60 penalty units.
(2) Sub-section (1) does not apply to the giving
5 of information--
(a) to a court or tribunal in the course of
legal proceedings; or
(b) pursuant to an order of a court or
tribunal; or
10 (c) to the extent reasonably required to
enable the investigation or the
enforcement of a law of this State or of
any other State or Territory or of the
Commonwealth; or
15 (d) to the Business Licensing Authority
established under the Business
Licensing Authority Act 1998; or
(e) with the written authority of the
Secretary; or
20 (f) with the written authority of the person
to whom the information relates.'.
51. Consumer and trader disputes
In sections 107, 108, 110, 111, 112 and 113 of the
Fair Trading Act 1999, for "fair trading dispute"
25 (wherever occurring) substitute "consumer and
trader dispute".
52. Definition of consumer and trader dispute
(1) Insert the following heading to section 107 of the
Fair Trading Act 1999--
30 "What is a consumer and trader dispute?".
(2) In section 107(2) of the Fair Trading Act 1999,
after "but" insert "(except as provided in sub-
section (3))".
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(3) After section 107(2) of the Fair Trading Act
1999, insert--
"(3) For the purposes of sub-section (1), a dispute
or claim includes a claim related to personal
5 injury if--
(a) the claim is for an amount not
exceeding $10 000; and
(b) the claim relates to a supply or possible
supply of goods or services; and
10 (c) the supply or possible supply of goods
or services is the subject of a related
consumer and trader dispute.".
53. New section 107A inserted
After section 107 of the Fair Trading Act 1999,
15 insert--
'107A. What is a small claim?
In this Part "small claim" means a
consumer and trader dispute in relation to--
(a) a claim for payment of money in an
20 amount not exceeding $10 000 or other
prescribed amount; or
(b) a claim for performance of work of a
value not exceeding $10 000 or other
prescribed amount--
25 that in either case arises out of a contract for
the supply of goods or the provision of
services other than a contract of life
insurance.'.
54. Settlement of consumer and trader disputes
30 (1) Insert the following heading to section 108 of the
Fair Trading Act 1999--
"Settlement of consumer and trader disputes or
small claims".
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(2) In section 108(2)(h) of the Fair Trading Act
1999, for "contract." substitute "contract;".
(3) After section 108(2)(h) of the Fair Trading Act
1999 insert--
5 "(i) declare that a debt is, or is not, owing;
(j) order a party to do or refrain from doing
something.
Example: If the supplier has default listed the purchaser with a
credit reference agency in relation to a perceived debt
10 owing, the Tribunal, in addition to declaring that there
is no debt owing, may order the supplier to contact the
credit reference agency and have the default listing
removed from the purchaser's credit record.".
55. Exclusion of other jurisdiction
15 (1) In section 111(1)(b) of the Fair Trading Act
1999, for "jurisdiction." substitute "jurisdiction;
or".
(2) After section 111(1)(b) of the Fair Trading Act
1999 insert--
20 "(c) the Tribunal refers the proceeding to that
court under section 77 of the Victorian Civil
and Administrative Tribunal Act 1998.".
56. New sections 112A and 112B inserted
After section 112 of the Fair Trading Act 1999,
25 insert--
"112A. Small claim commenced in a court
"(1) This section applies if a supplier, or person
acting on behalf of the supplier--
(a) commences proceedings in a court; and
30 (b) the proceedings arise wholly or
predominantly from a small claim.
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(2) The court must dismiss the proceedings if--
(a) the court has not yet commenced to
hear the matter; and
(b) the purchaser has applied to the
5 Tribunal to have the matter heard and
determined by the Tribunal; and
(c) the purchaser has lodged with the
Tribunal--
(i) the whole of the amount sought by
10 the supplier; or
(ii) if any payment has been made to
the supplier (including any
deposit), the outstanding amount
sought; and
15 (d) the Tribunal has notified the court of
that application to the Tribunal and
lodgement.
112B. Small Claims Suspense Account
(1) The principal registrar of the Tribunal must
20 keep an account called the Small Claims
Suspense Account and pay into that account
all money lodged with the Tribunal under
section 112A(2).
(2) The principal registrar must deal with money
25 lodged with the Tribunal under section
112A(2) as follows--
(a) if the Tribunal makes an order with
respect to the money, the principal
registrar must comply with the order;
30 (b) if the proceeding is struck out for want
of jurisdiction or otherwise withdrawn,
the principal registrar must--
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(i) return the money to the person
who paid the money or that
person's personal or legal
representative; or
5 (ii) pay it in accordance with the
directions of the person who paid
the money or that person's
personal or legal representative;
(c) if the person who paid the money dies
10 before a final order is made with
respect to the matter, the principal
registrar must pay the money to the
personal or legal representative of the
deceased person.".
15 57. New section 113A inserted
After section 113 of the Fair Trading Act 1999,
insert--
"113A. Tribunal may order the provision of
information
20 (1) A person may apply to the Tribunal for an
order requiring the Director to provide the
full name and address of a supplier, who is
not registered or licensed or whose details
are not contained on any public register
25 established under a business licensing Act or
other Act.
(2) The Tribunal may make the order referred to
in sub-section (1) if it is satisfied that, in all
the circumstances, it is just and convenient to
30 do so.".
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58. Publisher to produce information
In section 118(1) of the Fair Trading Act 1999,
for "specified information which has been
published by the publisher" substitute--
5 "specified information which--
(a) is required by this Act or the regulations to
be kept by the publisher; or
(b) has been published by the publisher".
59. Emergency entry
10 In section 121(1) of the Fair Trading Act 1999
after "interim ban order" insert ", a fixed term ban
order".
60. New section 129 substituted
For section 129 of the Fair Trading Act 1999
15 substitute--
"129. Magistrates' Court may extend 3 month
period
(1) An inspector may apply to the Magistrates'
Court--
20 (a) within 3 months after seizing a
document or other thing under this Part;
or
(b) if an extension has been granted under
this section, before the end of the
25 period of the extension--
for an extension (not exceeding 3 months) of
the period for which the inspector may retain
the document or thing but so that the total
period of retention does not exceed
30 12 months.
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(2) The Magistrates' Court may order such an
extension if it is satisfied that--
(a) it is in the interests of justice; and
(b) the total period of retention does not
5 exceed 12 months; and
(c) retention of the document or other thing
is necessary--
(i) for the purposes of an
investigation into whether a
10 contravention of this Act or the
regulations has occurred; or
(ii) to enable evidence of a
contravention of this Act or the
regulations to be obtained for the
15 purposes of a proceeding under
this Act.
(3) At least 7 days prior to the hearing of an
application under this section, notice of the
application must be sent to the owner of the
20 document or thing described in the
application.".
61. New section 144 substituted
For section 144 of the Fair Trading Act 1999
substitute--
25 '144. Conduct by officers, employees or agents
(1) If, in any proceedings under this Act, it is
necessary to establish the state of mind of a
body corporate in relation to particular
conduct, it is sufficient to show--
30 (a) that the conduct was engaged in by an
officer of that body corporate within the
scope of the officer's actual or apparent
authority and the officer had that state
of mind; or
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(b) that the conduct was engaged in by an
agent of the body corporate and--
(i) the agent acted at the specific
direction or with the specific
5 consent or agreement of the body
corporate; and
(ii) the agent had that state of mind;
and
(iii) the body corporate was aware of
10 the agent's state of mind when the
conduct was engaged in.
(2) For the purposes of any proceedings under
this Act, any conduct engaged in on behalf of
a body corporate is deemed to have been
15 engaged in also by the body corporate if the
conduct was engaged in by--
(a) an officer of the body corporate within
the scope of the officer's actual or
apparent authority; or
20 (b) any other person at the specific
direction or with the specific consent or
agreement of an officer of the body
corporate, if the giving of the direction,
consent or agreement is within the
25 scope of the actual or apparent
authority of the officer.
(3) If, in any proceedings under this Act, it is
necessary to establish the state of mind of a
person other than a body corporate in
30 relation to particular conduct, it is sufficient
to show--
(a) that the conduct was engaged in by an
employee of that person within the
scope of the employee's actual or
35 apparent authority and the employee
had that state of mind; or
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(b) that the conduct was engaged in by an
agent of the person and--
(i) the agent acted at the specific
direction or with the specific
5 consent or agreement of the
person; and
(ii) the agent had that state of mind;
and
(iii) the person was aware of the
10 agent's state of mind when the
conduct was engaged in.
(4) For the purposes of any proceedings under
this Act, any conduct engaged in on behalf of
a person other than body corporate ("the
15 principal") is deemed to have been engaged
in also by the principal if the conduct was
engaged in by--
(a) an employee of the principal within the
scope of the employee's actual or
20 apparent authority; or
(b) any other person at the specific
direction or with the specific consent or
agreement of an employee of the
principal, if the giving of the direction,
25 consent or agreement is within the
scope of the actual or apparent
authority of the employee.
(5) A reference in this section to the state of
mind of a person includes a reference to the
30 knowledge, intention, opinion, belief or
purpose of the person and the person's
reasons for the intention, opinion, belief or
purpose.'.
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62. Repeal of section 145
Section 145 of the Fair Trading Act 1999 is
repealed.
63. New section 145 inserted
5 In Division 2 of Part 11 of the Fair Trading Act
1999, before section 146 insert--
"145. Interpretation
A reference in this Division to a person
involved in a contravention of this Act
10 means a reference to a person who--
(a) has aided, abetted, counselled or
procured the contravention;
(b) has induced, whether by threats or
promises or otherwise, the
15 contravention;
(c) has been in any way, directly or
indirectly, knowingly concerned in or
party to, the contravention;
(d) has conspired with others to effect the
20 contravention.".
64. New sections 151A, 151B and 151C inserted
After section 151 of the Fair Trading Act 1999
insert--
"151A. Cease trading injunctions
25 (1) The Minister or the Director may apply to
the Supreme Court for the grant of an
injunction restraining a person from carrying
on a business of supplying goods or services
(whether or not as part of, or incidental to,
30 the carrying on of another business) if the
person is or has been engaging in conduct
that constitutes--
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(a) a contravention of any provision of this
Act; or
(b) attempting or conspiring to contravene
such a provision; or
5 (c) aiding, abetting, counselling or
procuring a person to contravene such a
provision; or
(d) inducing or attempting to induce a
person, whether by threats, promises or
10 otherwise, to contravene such a
provision; or
(e) being in any way directly or indirectly,
knowingly concerned in, or party to, the
contravention by a person of such a
15 provision.
(2) The Supreme Court may grant the injunction
sought--
(a) if--
(i) the Court is satisfied that the
20 person is engaging in or has been
engaging in conduct of that kind;
and
(ii) it appears to the Court that, in the
event that the injunction is not
25 granted, it is likely that the person
will engage in conduct of that kind
and there is an imminent danger of
substantial damage to any person
if the first-mentioned person
30 engages in conduct of that kind; or
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(b) if the Court determines it to be
appropriate, by consent of all the
parties to the proceedings, whether or
not the person has engaged in, or is
5 likely to engage in conduct of that kind.
(3) An injunction under this section may be
granted--
(a) for a specified period; and
(b) on specified terms and conditions.
10 151B. Interim cease trading injunctions
The Supreme Court may grant an interim
injunction pending determination of an
application under section 151A, if, in the
opinion of the Court it is desirable to do so
15 and it appears to the Court that--
(a) the person intends to engage in or
continue to engage in conduct of the
kind referred to in paragraphs (a) to (e)
of section 151A(1); and
20 (b) there is an imminent danger of
substantial damage to any person if the
person referred to in paragraph (a)
engages in conduct of that kind.
151C. Power to rescind or vary cease trading
25 injunctions
The Supreme Court may rescind or vary an
injunction granted by it under section 151A
or an interim injunction granted by it under
section 151B.".
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65. Defences
In section 155(1) of the Fair Trading Act 1999--
(a) for paragraph (a) substitute--
"(a) that the contravention in respect of
5 which the proceeding was instituted
was due to reasonable mistake of fact,
including a mistake of fact caused by a
reasonable reliance on information
supplied by another person; or";
10 (b) paragraph (b) is repealed.
66. Orders against persons found to have contravened
this Act
(1) In section 158 of the Fair Trading Act 1999, for
sub-section (1) substitute--
15 '(1) In any proceedings for an offence against, or
a contravention of, this Act, the court may
make any order it considers fair (including
one or more of the orders set out in sub-
section (2)) if the court finds that--
20 (a) the person against whom the
proceedings were brought ("the
defendant") has contravened a
provision of this Act (including a
provision under Part 2); and
25 (b) another person ("the injured person")
has suffered or may suffer loss or
damage as a result of the contravention
of this Act.'.
(2) In section 158(2) of the Fair Trading Act 1999--
30 (a) in paragraph (g) for "person; or" substitute
"person.";
(b) paragraph (h) is repealed.
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(3) After section 158(3) of the Fair Trading Act
1999, insert--
"(4) The court may also make an order under this
section against a person involved in a
5 contravention of a provision of this Act.".
67. Actions for damages
After section 159(1) of the Fair Trading Act
1999, insert--
"(1A) Except in accordance with section 107(3), a
10 person may not recover in the Tribunal an
amount for any personal injury suffered.".
68. New Division 3 inserted in Part 11
In Part 11 of the Fair Trading Act 1999, after
Division 2 insert--
15 'Division 3--Infringement Notices
160A. Power to serve a notice
(1) An authorised officer may serve an
infringement notice on any person that he or
she has reason to believe has committed an
20 offence specified by the regulations as an
offence in respect of which an infringement
notice may be issued.
(2) In this Division "authorised officer"
means--
25 (a) an inspector;
(b) a member of the police force;
(c) a person authorised in writing by the
Director.
(3) An infringement notice may be served on a
30 person--
(a) by delivering it personally to the
person; or
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(b) by sending it by post addressed to the
person at the person's last known place
of residence or business.
160B. Form of notice
5 An infringement notice must be in a form
approved by the Director and must set out--
(a) the date of the notice;
(b) the provision of this Act or the
regulations that creates the offence;
10 (c) the date, time and place of the alleged
offence;
(d) the nature and a brief description of the
alleged offence;
(e) the infringement penalty for the alleged
15 offence set out in the regulations;
(f) the manner in which the infringement
penalty may be paid;
(g) the time (not being less than 28 days
after the date on which the notice is
20 served) within which the infringement
penalty must be paid;
(h) that, if the amount of the infringement
penalty is paid before the end of the
time specified in the notice, the matter
25 will not be brought before the
Magistrates' Court unless the notice is
withdrawn within 28 days after the date
on which it was served;
(i) that the person is entitled to disregard
30 the notice and defend any proceedings
in respect of the alleged offence in the
Magistrates' Court;
(j) any other prescribed particulars.
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160C. Late payment of penalty
An authorised officer may accept payment of
the infringement penalty even after the
expiration of the time for payment stated in
5 the infringement notice if--
(a) neither a charge has been filed nor a
courtesy letter served under Part 2 of
Schedule 7 to the Magistrates' Court
Act 1989 in respect of the offence to
10 which the infringement penalty relates;
and
(b) the infringement notice has not been
withdrawn.
160D. Withdrawal of notice
15 (1) The Director may withdraw an infringement
notice at any time within 28 days after the
date on which it was served by serving a
withdrawal notice on the person served with
the infringement notice.
20 (2) A withdrawal notice may be served on a
person--
(a) by delivering it personally to the
person; or
(b) by sending it by post addressed to the
25 person at the person's last known place
of residence or business.
(3) An infringement notice may be withdrawn
even if the infringement penalty has been
paid.
30 (4) If an infringement notice is withdrawn, the
amount of any infringement penalty paid
must be refunded and the Consolidated Fund
is, to the necessary extent, appropriated
accordingly.
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160E. Payment expiates offence
If an infringement notice is not withdrawn
and the infringement penalty is paid within
the time specified in the notice or payment is
5 accepted in accordance with section 160C,
then--
(a) the person on whom the notice was
served has expiated the offence by that
payment; and
10 (b) no proceedings may be taken against
that person in respect of that offence;
and
(c) no conviction is to be taken to have
been recorded against that person for
15 the offence.
160F. Application of penalty
(1) An infringement penalty paid under this
Division must be applied in the same way as
a fine paid under an order of a court made on
20 an offender being convicted or found guilty
of the offence to which the infringement
penalty relates.
(2) The payment of an infringement penalty
under this Division is not and must not be
25 taken to be--
(a) an admission of guilt in relation to the
offence; or
(b) an admission of liability for the purpose
of any civil claim or proceeding arising
30 out of the same occurrence, and the
payment does not in any way affect or
prejudice any such claim or proceeding.
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(3) The payment of an infringement penalty
under this Division must not be referred to in
any report provided to a court for the
purpose of determining sentence for any
5 offence.
160G. Prosecution after service of infringement
notice
A charge may be filed in respect of an
offence to which an infringement notice
10 relates if--
(a) the infringement penalty has not been
paid within the time for payment
specified in the notice or in accordance
with section 160C; or
15 (b) the notice is withdrawn.
160H. Enforcement of infringement penalty
Payment of the infringement penalty may be
enforced in accordance with Part 2 of
Schedule 7 to the Magistrates' Court Act
20 1989 if--
(a) the infringement notice is an
infringement notice within the meaning
of Schedule 7 to that Act; and
(b) the infringement penalty has not been
25 paid within the time specified in the
notice or in accordance with
section 160C; and
(c) the notice has not been withdrawn; and
(d) a charge has not been filed in
30 accordance with section 160G.'.
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69. New section 161A inserted
After section 161 of the Fair Trading Act 1999,
insert--
'161A. Bills and receipts
5 (1) Within 30 days after receipt of a bill or
account from a supplier for services
supplied, a purchaser to whom the services
were supplied may request an itemised bill.
(2) A supplier must provide an itemised bill
10 within 7 days of receiving a request under
sub-section (1).
Penalty: 60 penalty units, in the case of a
natural person.
120 penalty units, in the case of a
15 body corporate.
(3) A supplier must not charge a person for the
preparation of an itemised bill for services.
Penalty: 60 penalty units, in the case of a
natural person.
20 120 penalty units, in the case of a
body corporate.
(4) A supplier must, at the completion of a
contract for goods or services the value of
which exceeds $50 (exclusive of GST),
25 provide the purchaser with a proof of
transaction.
Penalty: 60 penalty units, in the case of a
natural person.
120 penalty units, in the case of a
30 body corporate.
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(5) After completion of a contract for goods or
services the value of which does not exceed
$50, a purchaser to whom the goods or
services were supplied may request a proof
5 of transaction.
(6) A supplier must provide a proof of
transaction within 7 days of receiving a
request under sub-section (5).
Penalty: 60 penalty units, in the case of a
10 natural person.
120 penalty units, in the case of a
body corporate.
(7) This section does not apply to a contract for
the provision of legal services to which the
15 Legal Practice Act 1996 applies.
(8) In this section--
"GST" has the same meaning as in the
A New Tax System (Goods and
Services Tax) Act 1999 of the
20 Commonwealth;
"itemised bill" means a bill or account of
costs that specifies how the costs are
calculated and includes, where
applicable, the hourly rate and number
25 of hours comprising the labour
component and a list of the various
materials used and the amount charged
for each item;
"proof of transaction" means evidence that
30 identifies the supplier, the date of the
supply and the goods or services
supplied to a purchaser.
Note: Proof of transaction includes the following--
a tax invoice under the A New Tax System
35 (Goods and Services Tax) Act 1999 of the
Commonwealth, a cash-register receipt, a credit
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or debit card statement, a hand-written receipt,
a lay-by agreement and a confirmation or
receipt number provided in a telephone or
internet transaction.'.
5 70. New section 162A inserted
After section 162 of the Fair Trading Act 1999,
insert--
"162A. Public warning statements
If satisfied it is in the public interest to do so,
10 the Minister or the Director may publish a
public statement or issue a public warning,
identifying and giving information about the
following--
(a) goods that are unsatisfactory and the
15 persons who supply those goods;
(b) services supplied in an unsatisfactory
manner and persons who supply those
services;
(c) unfair business practices and persons
20 who engage in those practices;
(d) any other matter that adversely affects
or may adversely affect the interests of
persons in connection with the
acquisition by them of goods or
25 services from suppliers.".
71. New section 163 substituted
For section 163 of the Fair Trading Act 1999,
substitute--
'163. Consumer documents to be clear
30 (1) In this section "consumer document"
means--
(a) a consumer contract; or
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(b) a statement, notice or other document
required by this Act to comply with this
section.
(2) A consumer document does not include a
5 contract to which the Consumer Credit
(Victoria) Act 1995 applies;
(3) A consumer document--
(a) must be easily legible; and
(b) to the extent that it is printed or typed,
10 must use a minimum 10 point font; and
(c) must be clearly expressed.
(4) If the Tribunal is satisfied, on application by
the Director, that any provision of a
consumer contract does not comply with the
15 requirements of this section, the Tribunal
may by order prohibit a supplier from using
the provision in the same or similar terms in
consumer contracts.
(5) A supplier must comply with an order under
20 this section.
Penalty: 60 penalty units, in the case of a
natural person.
120 penalty units, in the case of a
body corporate.'.
25 72. Supreme Court--limitation of jurisdiction
At the end of section 164 of the Fair Trading Act
1999 insert--
"(2) It is the intention of section 112A to alter or
vary section 85 of the Constitution Act
30 1975.".
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s. 73
73. Amendment of regulation-making powers
In section 165(1) of the Fair Trading Act 1999
before paragraph (a) insert--
"(aa) prescribing for the purposes of section 32N
5 the form of and the particulars to be included
in a contractual term referred to in that
section;
(ab) prescribing terms which are unfair terms for
the purposes of Part 2B;".
10 74. New Schedule 2 substituted
For Schedule 2 to the Fair Trading Act 1999
substitute--
'SCHEDULE 2
CONTACT SALES AGREEMENTS AND
15 TELEPHONE MARKETING AGREEMENTS
PART 1--NOTICE TO PURCHASER
The following notice is to appear on the front page of a
Contact Sales agreement or Telephone Marketing
agreement and must be signed by the purchaser:
20 "IMPORTANT NOTICE TO THE PURCHASER
YOU HAVE A RIGHT TO CANCEL THIS AGREEMENT
WITHIN 10 DAYS FROM AND INCLUDING THE
DAY YOU SIGNED THE CONTRACT.
25 IMPORTANT DETAILS ABOUT YOUR RIGHTS ARE
SET OUT IN THE CANCELLATION NOTICE
PROVIDED WITH THIS AGREEMENT.
30 Signed by the Purchaser: _____________________
Date: _________________________"
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PART 2--CANCELLATION NOTICE
A Cancellation Notice in the following form must
accompany a Contact Sales Agreement or a Telephone
Marketing Agreement:
5 'CANCELLATION NOTICE
(supplier or supplier's agent details and date and details of
agreement must be completed by supplier or supplier's
agent)
TO THE SUPPLIER or SUPPLIER'S AGENT:
10 Supplier or supplier's agent's name:
Supplier or supplier's agent's address:
Supplier or supplier's agent's facsimile number (if any):
Date of Agreement:
Details of goods or services to be supplied under
15 Agreement:
I WISH TO CANCEL THIS AGREEMENT.
If this is an agreement for the supply of goods:
20 *I RETURN THE GOODS WITH THIS NOTICE or
*THE GOODS CAN BE COLLECTED FROM THE
FOLLOWING ADDRESS:
(*Cross out whichever does not apply)
25 Signed by the Purchaser: ____________
Date: _________________
(The wording below must appear in bold capital print or
type, of a size at least as large as the largest print or type
30 appearing on any other part of the notice)
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"NOTICE TO THE PURCHASER WANTING TO
CANCEL THIS AGREEMENT
IF YOU WISH TO CANCEL THIS AGREEMENT
PLEASE SIGN AND DATE THIS NOTICE OF
5 CANCELLATION AND LEAVE THE NOTICE AT THE
SUPPLIER'S OR SUPPLIER'S AGENT'S ADDRESS OR
POST IT TO THE SUPPLIER OR THE SUPPLIER'S
AGENT'S ADDRESS OR FAX IT TO THE FAX
NUMBER SET OUT IN THIS NOTICE.
10 THIS MUST BE DONE WITHIN 10 DAYS FROM AND
INCLUDING THE DAY YOU SIGNED THE
CONTRACT ("THE COOLING-OFF PERIOD").
YOU MAY STILL BE REQUIRED TO PAY A FAIR
PRICE FOR GOODS WHICH CANNOT BE RETURNED
15 TO THE SUPPLIER UNLESS YOU ENTERED INTO
THE AGREEMENT BECAUSE THE SUPPLIER OR THE
SUPPLIER'S AGENT MADE A FALSE OR
MISLEADING REPRESENTATION ABOUT YOUR
NEED FOR THE GOODS.
20 THE SUPPLIER OR THE SUPPLIER'S AGENT MUST
NOT REQUIRE YOU TO PAY FOR SERVICES
PROVIDED TO YOU DURING THE COOLING-OFF
PERIOD.
IF YOU CANCEL THIS AGREEMENT DURING THE
25 COOLING-OFF PERIOD, THE SUPPLIER IS ENTITLED
TO APPLY TO THE VICTORIAN CIVIL AND
ADMINISTRATIVE TRIBUNAL ("VCAT") FOR AN
ORDER THAT YOU HAVE TO PAY A REASONABLE
AMOUNT FOR THE SERVICES YOU RECEIVED
30 BEFORE YOU CANCELLED THE AGREEMENT. YOU
WILL NOT BE REQUIRED TO PAY ANYTHING IF
VCAT DECIDES THAT THE SUPPLIER OR THE
SUPPLIER'S AGENT HAS BREACHED THE FAIR
TRADING ACT 1999 IN RELATION TO THIS
35 AGREEMENT, FOR EXAMPLE, BY MAKING A FALSE
OR MISLEADING STATEMENT TO YOU ABOUT
YOUR NEED FOR THE SERVICES.".'.
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s. 75
75. Amendment to Schedule 3
In Schedule 3 to the Fair Trading Act 1999, after
clause 7 insert--
"8. Superseded references
5 On the commencement of section 75 of the
Fair Trading (Amendment) Act 2002, in any
Act (other than this Act), or in any instrument
made under any Act or in any other document
of any kind--
10 (a) a reference to the Director of Fair
Trading or the Director of Consumer and
Business Affairs is deemed to be a
reference to the Director of Consumer
Affairs Victoria; and
15 (b) a reference to the Office of Fair Trading,
the Office of Fair Trading and Business
Affairs or Consumer and Business
Affairs Victoria is deemed to be a
reference to Consumer Affairs Victoria
20 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
25 Consumer and Business Affairs or the Director
of Fair Trading and existing immediately before
the commencement of section 75 of the Fair
Trading (Amendment) Act 2002, may be
continued and completed on and after that
30 commencement by or against or in relation to
the Director of Consumer Affairs Victoria.
(2) If, immediately before the commencement of
section 75 of the Fair Trading (Amendment)
Act 2002, proceedings to which the Director of
35 Consumer and Business Affairs was a party
were pending or existing in any court or
tribunal, then, on and after that commencement,
the Director of Consumer Affairs Victoria is
substituted for the Director of Consumer and
40 Business Affairs as a party to the proceedings
and has the same rights and obligations in the
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proceedings as the Director of Consumer and
Business Affairs had.".
76. Further amendment to Schedule 3
At the end of Schedule 3 to the Fair Trading Act
5 1999, insert--
"10. Continuation of existing small claims
(1) Despite the repeal of the Small Claims Act
1973 by section 77 of the Fair Trading
(Amendment) Act 2002, the Small Claims
10 Act 1973 as in force immediately before its
repeal continues to apply to any proceeding
under that Act existing immediately before the
commencement of that section in respect of a
small claim.
15 (2) Until 31 July 2003, 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
20 in respect of a small claim under Part 9 of the
Fair Trading Act 1999.".
__________________
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s. 77
PART 3--REPEALS AND AMENDMENTS
77. Repeal of the Small Claims Act 1973
The Small Claims Act 1973 is repealed.
78. Repeal of Part IV of the Goods Act 1958
5 Part IV of the Goods Act 1958 is repealed.
79. New Part VI inserted in 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
10 Act 1958 will still apply
(1) Despite the repeal of Part IV by section 78 of
the Fair Trading (Amendment) Act 2002,
that Part, as in force immediately before its
repeal, continues to apply to a sale of goods
15 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.'.
20 80. Amendment to the Business Licensing Authority Act
1998
After Part 2 of the Business Licensing Authority
Act 1998 insert--
'PART 3--LICENCE SUSPENSION
25 20. Definitions
In this Part--
"licence" means--
(a) a licence issued or granted
under--
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s. 80
(i) the Estate Agents Act 1980;
or
(ii) the Motor Car Traders Act
1986; or
5 (iii) the Prostitution Control
Act 1994; or
(iv) the Travel Agents Act 1986;
or
(b) a right to act as an agent's
10 representative within the meaning
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
15 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
20 (e) a registration granted under Part 4
of the Consumer Credit
(Victoria) Act 1995; or
(f) a right to engage in finance
broking within the meaning of
25 Part 4A of the Consumer Credit
(Victoria) Act 1995; or
(g) a right to act as an introduction
agent within the meaning of the
Introduction Agents Act 1997;
30 or
(h) a registration or endorsement of
registration under the Second-
Hand Dealers and Pawnbrokers
Act 1989;
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"licence suspension period" in relation to a
licence, means the period--
(a) commencing on the date of
service of the notice in relation to
5 the licence under section 21; and
(b) ending on--
(i) the lapsing of the suspension
of the licence under section
23; or
10 (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
15 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
20 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--
25 (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
30 proceedings for an offence or for an
injunction; and
(b) it is likely that the licensee will
continue to engage in that conduct; and
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(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.
5 (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
10 known business address of a
licensee that is a corporation; or
(iii) at the last known business address
of a licensee that is a body
corporate, other than a
15 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;
20 (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
25 Tribunal that service cannot be promptly
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
30 electronic transmission to the person at
his or her usual or last known
residential or business address; or
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(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
5 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
10 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
15 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
20 (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.
25 (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
30 representative for the purposes of that Act
for the licence suspension period.
(4) If a notice is issued under this Part
suspending a licensee's right to participate in
a customer service capacity in the business
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of a motor car trader within the meaning of
the Motor Car Traders Act 1986, the
licensee is deemed, for the purposes of that
Act, not to be permitted to be employed in a
5 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
Part 3 of the Prostitution Control Act 1994,
10 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
15 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
20 suspending a licensee's right to engage in
finance broking within the meaning of
Part 4A of the Consumer Credit (Victoria)
Act 1995, the licensee is deemed to be
prohibited from engaging in finance broking
25 for the purposes of that Act for the licence
suspension period.
(8) If a notice is issued under this Part
suspending a licensee's right to act as an
introduction agent within the meaning of the
30 Introduction Agents Act 1997, the licensee
is deemed to be disqualified from acting as
an introduction agent for the purposes of that
Act for the licence suspension period.
(9) If a notice is issued under this Part
35 suspending the registration or endorsement
of registration of a licensee under the
Second-Hand Dealers and Pawnbrokers
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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
5 (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
10 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
15 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
20 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--
25 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
30 this Part for a period of 6 months from the
date of service of the first notice.
(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
35 other person or body by or under a business
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s. 80
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--
5 (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
10 (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
15 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).
20 (2) On an application under sub-section (1), the
Tribunal or court--
(a) must consider the likelihood that an
application or proceedings referred to
in section 23(1) and (2) will be made or
25 commenced; and
(b) may make an order extending the
period if in all the circumstances it
considers it just and convenient to do
so.
30 (3) An extension may be for a period not
exceeding 14 days.
(4) The Tribunal or court may adjourn any
application under this section to enable
notice of the application to be given to any
35 person.
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s. 81
25. Right of review
A licensee may apply to the Tribunal for a
review of the decision to issue a notice under
this Part.'.
5 81. Amendment to the Interpretation of Legislation Act
1984
In section 32(4) of the Interpretation of
Legislation Act 1984, in paragraph (a) for "must
cause--" insert "must, if the subordinate
10 instrument is itself required to be laid before each
House of the Parliament, cause--".
82. New Part 7A inserted in Schedule 1 to the Victorian
Civil and Administrative Tribunal Act 1998
In Schedule 1 to the Victorian Civil and
15 Administrative Tribunal Act 1998, after Part 7
insert--
'PART 7A--FAIR TRADING ACT 1999
28A. What is a "small claim"?
In this Part "small claim" has the meaning that
20 it has in Part 9 of the Fair Trading Act 1999.
28B. Representation
(1) A party to a proceeding relating to a small
claim may be represented by a professional
advocate only if--
25 (a) the Tribunal is satisfied that no other
party to the proceeding will be unfairly
disadvantaged if the representation is
allowed; and
(b) either--
30 (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
35 relating to a small claim.
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28C. 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
5 the Tribunal.
28D. Tribunal cannot extend time for commencing
proceedings
Section 126(1) does not apply to a proceeding
relating to a small claim.
10 28E. 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
15 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.
20 28F. 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
25 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
30 for that purpose.
(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
35 made.
(3) Section 86(3) does not apply to a proceeding
relating to a small claim.
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28G. 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
5 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.
28H. Reasons must be requested at time of decision
10 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
15 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.'.
83. Repeal of Part 18 of Schedule 1 to the Victorian Civil
20 and Administrative Tribunal Act 1998
Part 18 of Schedule 1 to the Victorian Civil and
Administrative Tribunal Act 1998 is repealed.
84. Amendments to the Administrative Law Act 1978
(1) In section 4(3) of the Administrative Law Act
25 1978 for "under the Small Claims Act 1973"
substitute "under Part 9 of the Fair Trading Act
1999 in relation to a small claim".
(2) At the end of section 15 of the Administrative
Law Act 1978 insert--
30 "(2) It is the intention of section 4(3), as amended
by section 84 of the Fair Trading
(Amendment) Act 2002, to alter or vary
section 85 of the Constitution Act 1975.".
85. Amendments to the Building Act 1993
35 (1) In section 137B(4) and (5) of the Building Act
1993, for "Consumer and Business Affairs"
substitute "Consumer Affairs Victoria".
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(2) In the heading to section 196A of the Building
Act 1993 for "Consumer and Business Affairs"
substitute "Consumer Affairs Victoria".
(3) In section 196A of the Building Act 1993 for
5 "Consumer and Business Affairs" substitute
"Consumer Affairs Victoria".
86. Amendments to the Co-operative Housing Societies
Act 1958
In section 72B(2)(c)(iv) of the Co-operative
10 Housing Societies Act 1958, for "Consumer and
Business Affairs" substitute "Consumer Affairs
Victoria".
87. Amendments to the Domestic Building Contracts Act
1995
15 (1) In section 43D of the Domestic Building
Contracts Act 1995, for sub-section (2)
substitute--
"(2) The Director must not, under sub-section (1),
institute or defend proceedings on behalf of a
20 building owner unless that building owner
has given consent in writing.
(3) After consent has been given under sub-
section (2), the Director may institute or
continue with a proceeding or defence on
25 behalf of a building owner even if the
building owner revokes the consent.".
(2) In section 43E of the Domestic Building
Contracts Act 1995--
(a) in paragraph (c) for "an amount" (where first
30 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".
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(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
5 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
10 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
15 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
20 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)
25 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
30 Director in relation to the proceedings.".
88. Amendments to the Fundraising Appeals Act 1998
In section 3 of the Fundraising Appeals Act
1998, in the definition of "Director" for "of
Consumer and Business Affairs" substitute
35 "within the meaning of the Fair Trading Act
1999".
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s. 89
89. Amendments to the Petroleum Retail Selling Sites Act
1981
In section 4(9) of the Petroleum Retail Selling
Sites Act 1981, for "Consumer and Business
5 Affairs" substitute "Consumer Affairs Victoria".
90. Amendments to the Residential Tenancies Act 1997
In Part 12 of the Residential Tenancies Act 1997,
in the heading to Division 1, for "Consumer and
Business Affairs" substitute "Consumer
10 Affairs Victoria".
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Act No.
Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
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