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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 2003
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purposes 1
2. Commencement 3
PART 2--AMENDMENTS TO THE FAIR TRADING ACT 1999 4
3. Purposes 4
4. Definitions 4
5. New section 6 substituted 6
6. Extra-territorial application of this Act 6
6. Amendment to penalty provisions in Part 2 6
7. Referral selling 6
8. Pyramid selling 7
9. Right to payment for unauthorised entry or advertisement 7
10. Address to be included in documents 8
11. 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? 11
32BA. What are antecedent negotiations? 11
32C. When is a person "aware" of a fact, matter or
circumstance? 12
Division 2--Application of Part 12
32CA. Application of Part 12
32D. This Part applies to certain kinds of contracts 13
32DA. This Part does not apply to certain kinds of contracts 13
32E. How is "cash price" determined for contracts generally? 14
32EA. How is "cash price" determined for leases of goods? 16
32EB. Presumption that this Part applies to supply 16
32F. Application of Part to mixed contracts 17
32FA. Application of Goods Act 1958 to contracts of supply 17
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Clause Page
Division 3--Supply of Goods or Services 18
32G. Terms implied in contracts as to right to supply 18
32GA. Transfer of limited interest in goods 19
32GB. Terms implied in leases as to right to hire 20
32H. Supply of goods by description 21
32HA. Supply of goods by sample 21
32I. Merchantable quality of goods supplied 22
32IA. Fitness of goods for purpose 23
32J. Implied conditions in supply of services 23
32JA. Fitness of services for purpose 24
32K. Supply of services by demonstration 25
32KA. Terms implied in contracts of supply of both services
and goods 26
32L. Contract cannot exclude this Part 27
32LA. Contract cannot exclude liability for damages 27
32M. Penalties for including void provisions 28
32MA. Limitation of liability generally 29
32N. Limitation of liability in relation to supply of
recreational services 31
32NA. Exemption from waiver form requirement 34
32NB. Supplier to have reasonable opportunity to make good
title 35
32O. Acceptance of goods 35
32OA. Rescission for innocent misrepresentation 37
32P. Discharge or rescission of contract of supply of goods 38
32PA. When does a discharge or rescission have effect? 39
32Q. Liability of supplier and person conducting antecedent
negotiations 40
32QA. Indemnity for supplier or dealer 42
32R. Certain contracts or provisions void 42
32RA. Penalty for including void provision relating to
antecedent negotiations 43
Division 4--General 43
32S. Implied terms do not negative express terms unless
inconsistent 43
32SA. Limit of liability of guarantors 43
32T. Limit of liability under security 46
32TA. Contract of supply not illegal etc. 47
12. Insertion of new Part 2B 47
PART 2B--UNFAIR TERMS IN CONSUMER
CONTRACTS 47
32U. Definitions 47
32V. Application of Part 48
32W. What is an unfair term? 48
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Clause Page
32X. Assessment of unfair terms 48
32Y. Effect of unfair term 50
32Z. Offences relating to prescribed unfair terms 50
32ZA. Injunctions to prevent continued use of unfair terms 51
32ZB. Director may require the supply of information 51
32ZC. Declaration by the Tribunal 53
32ZD. Advisory opinion by the Tribunal 53
13. Interim ban order 54
14. Permanent or fixed term ban order 54
15. General power to make permanent ban order or fixed term ban
order 54
16. New section 41 substituted 56
41. When does a permanent ban order or a fixed term ban
order take effect? 56
17. Notice of order 57
18. New section 43 substituted 57
43. Revocation or amendment of permanent ban order or
fixed term ban order 57
19. Offence to contravene permanent ban order or fixed term ban
order 57
20. Loss, injury or damage arising from a contravention of this
Division 57
21. Compulsory recall 57
22. Review of ban order or compulsory recall notice 58
23. Off-Business-Premises Sales 58
24. Application 58
25. What is a contact sales agreement? 59
26. Requirements for contact sales agreements 59
27. New sections 62A, 62B, 62C, 62D and 62E inserted 60
62A. Duty to obtain prior consent to visit 60
62B. Duty not to remain on premises for long periods 62
62C. Duty to leave premises 63
62D. Duty to produce identification 63
62E. Duty to inform 64
28. When can the purchaser cancel the agreement? 65
29. What can the supplier charge on cancellation? 66
30. Requirements for non-contact sales agreements 66
31. When can the purchaser cancel the agreement? 67
32. Sections 76 and 77 repealed 67
33. New section 80 substituted 67
80. Prohibition on payment for services during cooling-off
period 67
34. Statement of lay-by terms 68
35. New section 84A inserted 68
84A. Lay-by goods must be available 68
36. Cancellation of lay-by by purchaser 68
37. Cancellation where business closes 69
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Clause Page
38. Cancellation charge must not exceed a reasonable amount 69
39. Director of Consumer Affairs Victoria 69
40. Functions and powers of the Director 70
41. Part 8 headings amended 70
42. Conciliation 71
43. Power of the Director to institute and defend proceedings 71
44. Proceedings and costs 71
45. New Divisions 2, 3 and 4 inserted in Part 8 72
Division 2--Suppliers 72
106A. Substantiation of claims 72
106B. "Show cause" notice 73
Division 3--Licence Suspension 76
106C. Definitions 76
106D. Director may suspend licence 77
106E. Effect of suspension 79
106F. Lapsing or continuation of suspension 81
106G. Extension of period 82
106H. Right of review 83
Division 4--Obtaining Information, Documents and
Evidence 83
106I. Power to obtain information, documents and evidence 83
106J. Powers in relation to documents 85
106K. Copies of seized documents 86
106L. Retention and return of seized documents 86
106M. Magistrates' Court may extend 3 month period 87
106N. Complaints 88
106O. Service of documents 88
106P. Confidentiality 88
46. Consumer and trader disputes 89
47. Definition of consumer and trader dispute 89
48. New section 107A inserted 90
107A. What is a small claim? 90
49. Settlement of consumer and trader disputes 90
50. Exclusion of other jurisdiction 91
51. New sections 112A and 112B inserted 91
112A. Small claim commenced in a court 91
112B. Small Claims Suspense Account 92
52. New section 113A inserted 93
113A. Tribunal may order the provision of information 93
53. Publisher to produce information 93
54. Emergency entry 94
55. New section 129 substituted 94
129. Magistrates' Court may extend 3 month period 94
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Clause Page
56. New section 144 substituted 95
144. Conduct by officers, employees or agents 95
57. Repeal of section 145 97
58. New section 145 inserted 98
145. Interpretation 98
59. New sections 151A, 151B and 151C inserted 98
151A. Cease trading injunctions 98
151B. Interim cease trading injunctions 100
151C. Power to rescind or vary cease trading injunctions 100
60. Defences 100
61. Orders against persons found to have contravened this Act 101
62. Actions for damages 101
63. New Division 3 inserted in Part 11 102
Division 3--Infringement Notices 102
160A. Power to serve a notice 102
160B. Form of notice 102
160C. Late payment of penalty 103
160D. Withdrawal of notice 104
160E. Payment expiates offence 104
160F. Application of penalty 105
160G. Prosecution after service of infringement notice 105
160H. Enforcement of infringement penalty 106
64. New section 161A inserted 106
161A. Bills and receipts 106
65. New section 162A inserted 108
162A. Public warning statements 108
66. New section 163 substituted 109
163. Consumer documents to be clear 109
67. Supreme Court--limitation of jurisdiction 110
68. Amendment of regulation-making powers 110
69. New Schedule 2 substituted 111
70. Amendment to Schedule 3 113
71. Further amendment to Schedule 3 115
PART 3--REPEALS AND AMENDMENTS 116
72. Repeal of the Small Claims Act 1973 116
73. Amendment to section 97A of the Goods Act 1958 116
74. New section 97B inserted into the Goods Act 1958 116
97B. Exemption from waiver form requirement 116
75. Repeal of Part IV of the Goods Act 1958 117
76. New Part VI inserted in the Goods Act 1958 117
PART VI--TRANSITIONAL AND SAVING 117
122. Contracts to which Part IV of the Goods Act 1958 will
still apply 117
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Clause Page
77. New Part 3 inserted in the Business Licensing Authority Act
1998 118
PART 3--LICENCE SUSPENSION 118
20. Definitions 118
21. Authority may suspend licence 120
22. Effect of suspension 121
23. Lapsing or continuation of suspension 123
24. Extension of period 124
25. Right of review 125
78. Amendment to the Interpretation of Legislation Act 1984 125
79. New Part 7AA inserted in Schedule 1 to the Victorian
Civil and Administrative Tribunal Act 1998 126
80. Repeal of Part 18 of Schedule 1 to the Victorian Civil and
Administrative Tribunal Act 1998 128
81. Amendments to the Administrative Law Act 1978 128
82. Amendments to the Building Act 1993 128
83. Amendment to the Co-operative Housing Societies Act 1958 129
84. Amendments to the Domestic Building Contracts Act 1995 129
85. Amendments to the Electricity Industry Act 2000 131
86. Amendment to the Fundraising Appeals Act 1998 131
87. Amendments to the Gas Industry Act 2001 131
88. Amendments to the Partnership Act 1958 132
89. New section 79G inserted in the Partnership Act 1958 132
79G. Actions commenced by Commissioner for Corporate
Affairs 132
90. Amendment to the Petroleum Retail Selling Sites Act 1981 133
91. Amendment to the Residential Tenancies Act 1997 134
ENDNOTES 135
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PARLIAMENT OF VICTORIA
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 2003
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 2003
Act No.
Part 1--Preliminary
s. 1
(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 improve the operation of the pyramid
selling provisions;
(v) to provide for details that must be
included in advertisements promoting
the supply of goods or services;
15 (vi) to provide for the making of fixed term
ban orders;
(vii) to further regulate contact sales
agreements;
(viii) to provide for a procedure for small
20 claims;
(ix) to increase penalties for offences under
that Act;
(x) to improve the general operation of that
Act;
25 (b) to repeal the Small Claims Act 1973;
(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
30 conduct of business licence holders;
(e) to amend the Interpretation of Legislation
Act 1984 to clarify the requirements for the
tabling of incorporated documents;
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Fair Trading (Amendment) Act 2003
Act No.
Part 1--Preliminary
s. 2
(f) to amend the Partnership Act 1958 to
transfer the role of the Commissioner for
Corporate Affairs in relation to limited
partnerships to the Director.
5 2. Commencement
(1) This Part and sections 3(1), 3(3), 4 to 10, 13 to 25,
39 to 44, 53, 60, 61, 65, 70, 73, 74, 78 and 82 to
91 come into operation on the day after the day on
which this Act receives the Royal Assent.
10 (2) Subject to sub-section (3), the remaining
provisions of this Act come into operation on a
day or days to be proclaimed.
(3) If a provision referred to in sub-section (2) does
not come into operation before 31 December
15 2003, it comes into operation on that day.
__________________
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Fair Trading (Amendment) Act 2003
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) After section 1(a) of the Fair Trading Act 1999
Act No.
insert--
16/1999
and
5 "(aa) to protect consumers;".
amending
Act Nos
(2) After section 1(b) of the Fair Trading Act 1999
35/2000,
44/2001 and
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
the following definitions--
' "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 or
consumption, for the purposes of the
ordinary personal, domestic or household use
or consumption of those goods or services;
"fixed term ban order" means a fixed term ban
30 order under section 39 or 40;
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Fair Trading (Amendment) Act 2003
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;
"publisher" means a person who publishes a
publication intended for sale or public
distribution (whether to the public generally
or to a restricted class or number of persons)
10 or for public display (including in an
electronic form);
"Secretary" means the Secretary to the
Department of Justice;'.
(2) In section 3 of the Fair Trading Act 1999, in the
15 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 "Director" for "Consumer and
20 Business Affairs" substitute "Consumer Affairs
Victoria".
(4) In section 3 of the Fair Trading Act 1999, for the
definition of "unsolicited goods" substitute--
' "unsolicited goods" means goods supplied to a
25 person--
(a) without any request made by or on
behalf of the person; or
(b) on approval;'.
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Fair Trading (Amendment) Act 2003
Act No.
Part 2--Amendments to the Fair Trading Act 1999
s. 5
5. New section 6 substituted
For section 6 of the Fair Trading Act 1999
substitute--
"6. Extra-territorial application of this Act
5 (1) This Act applies within and outside Victoria.
(2) This Act applies outside Victoria to the full
extent of the extra-territorial legislative
power of the Parliament.".
6. Amendment to penalty provisions in Part 2
10 (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
"600 penalty units";
(b) for "600 penalty units" substitute
15 "1200 penalty units".
(2) In sections 16, 17(1), 17(2), 18(1) and 30(1) of the
Fair Trading Act 1999--
(a) for "120 penalty units" substitute
"600 penalty units";
20 (b) for "240 penalty units" substitute
"1200 penalty units".
(3) In sections 14(1), 15, 22(1), 22(2), 23(1), 24(1)
and 27(1) of the Fair Trading Act 1999--
(a) for "120 penalty units" substitute
25 "240 penalty units";
(b) for "240 penalty units" substitute
"600 penalty units".
7. Referral selling
(1) In section 18(1) of the Fair Trading Act 1999,
30 for "supplier" (where three times occurring)
substitute "person".
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Fair Trading (Amendment) Act 2003
Act No.
Part 2--Amendments to the Fair Trading Act 1999
s. 8
(2) In section 18(1)(b) of the Fair Trading Act 1999,
for "persons" substitute "purchasers".
(3) Section 18(2) of the Fair Trading Act 1999 is
repealed.
5 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
scheme for the supply of goods or services if
10 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.
Note: Section 130 of the Magistrates' Court Act
15 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
suggests a reasonable possibility of the
20 existence of facts that, if they existed, would
establish the exception.".
(2) In section 22(3) of the Fair Trading Act 1999, in
the definition of "pyramid selling scheme"--
(a) for "services; and" at the end of
25 paragraph (b) substitute "services--"; and
(b) paragraph (c) is repealed.
9. Right to payment for unauthorised entry or
advertisement
(1) For section 27(5)(a)(i) of the Fair Trading Act
30 1999 substitute--
"(i) a large proprietary company or a subsidiary
of such a company or a listed corporation or
a subsidiary of such a corporation; or".
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Fair Trading (Amendment) Act 2003
Act No.
Part 2--Amendments to the Fair Trading Act 1999
s. 10
(2) In section 27(6) of the Fair Trading Act 1999--
(a) insert the following definitions--
' "large proprietary company" has the
same meaning as in the Corporations
5 Act;
"listed corporation" has the same meaning
as in the Corporations Act;
"subsidiary" has the same meaning as in
the Corporations Act.'.
10 (b) the definition of "publisher" is repealed.
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) For section 29(1)(f) of the Fair Trading Act 1999
15 substitute--
"(f) one of the following--
(i) the full address (not being a post box)
of the place of business or residence of
the person;
20 (ii) if the person is carrying on a business
that is required to be licensed or
registered under an Act, the relevant
licence or registration number of the
business or person;
25 Example
This may include an LMCT number if the
person is a car dealer or the person's
registration or licence number if the person is a
plumber.
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Fair Trading (Amendment) Act 2003
Act No.
Part 2--Amendments to the Fair Trading Act 1999
s. 10
(iii) if the person is carrying on a business
under a business name registered under
the Business Names Act 1962, the
registered number of the business under
5 that Act.".
(3) For section 29(2) of the Fair Trading Act 1999
substitute--
'(2) This section does not apply to a person who
publishes or causes to be published, a
10 document, statement or advertisement for
prostitution services within the meaning of
the Prostitution Control Act 1994.
(3) A person, other than a person referred to in
sub-section (1)(f)(ii) or (iii), is not required
15 to comply with sub-section (1)(f) if the
person has provided his or her name and full
address to the publisher of the publication in
which the document, statement or
advertisement is to appear.
20 (4) A publisher must record and keep all
information provided to the publisher under
sub-section (3) for at least 12 months from
the date it is received.
Penalty: 60 penalty units, in the case of a
25 natural person.
120 penalty units, in the case of a
body corporate.
(5) In this section, "publish" in relation to a
document, statement or advertisement means
30 to make the document, statement or
advertisement generally known in any
manner (including in an electronic form).'.
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Fair Trading (Amendment) Act 2003
Act No.
Part 2--Amendments to the Fair Trading Act 1999
s. 11
11. 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 of goods or services, means
discharge of the contract so far as it is
executory;
25 "innocent misrepresentation" in relation to
a contract of supply of goods or
services means misrepresentation that is
not fraudulent;
"lease" includes hire;
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Fair Trading (Amendment) Act 2003
Act No.
Part 2--Amendments to the Fair Trading Act 1999
s. 11
"rescission" in relation to a contract of
supply of goods or services means
avoidance of the contract as from its
beginning.
5 32B. What are conditions and warranties?
(1) In this Part a reference to a condition in
relation to a contract of supply of goods or
services is a reference to a term of the
contract the breach of which may give rise to
10 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
services is a reference to a term of the
contract the breach of which may give rise to
15 a claim for damages but not to a right to treat
the contract as repudiated.
32BA. What are antecedent negotiations?
(1) In this Part a reference to antecedent
negotiations in relation to a contract of
20 supply of goods or services is a reference to
any negotiations or arrangements conducted
or made with the purchaser by a person--
(a) by which the purchaser was induced to
enter into the contract with the supplier;
25 or
(b) which otherwise promoted the making
of the contract.
(2) In this Part a reference to a person by whom
any antecedent negotiations are conducted is
30 a reference to a person by whom the
negotiations or arrangements concerned are
conducted or made.
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Fair Trading (Amendment) Act 2003
Act No.
Part 2--Amendments to the Fair Trading Act 1999
s. 11
32C. When is a person "aware" of a fact, matter
or circumstance?
(1) For the purposes of this Part, a person is not
deemed to be aware of a fact, matter or
5 circumstance by reason only that the person
has signed a document or writing--
(a) stating that fact, matter or
circumstance; or
(b) stating that the person is aware of that
10 fact, matter or circumstance.
(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
15 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
20 32CA. Application of Part
This Part applies to contracts of supply of
goods or services entered into on or after the
commencement of section 11 of the Fair
Trading (Amendment) Act 2003.
25 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 75 of the Fair Trading (Amendment)
30 Act 2003. See section 122 of the Goods Act
1958.
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Fair Trading (Amendment) Act 2003
Act No.
Part 2--Amendments to the Fair Trading Act 1999
s. 11
32D. This Part applies to certain kinds of
contracts
(1) In this Part a reference to a contract of
supply of goods or services is a reference to
5 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
10 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.
15 (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
prescribed amount.
20 32DA. This Part does not apply to certain kinds of
contracts
(1) In this Part a reference to a contract of
supply of goods or services does not include
a reference to--
25 (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
30 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
35 purchasing, the goods for the purpose
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Fair Trading (Amendment) Act 2003
Act No.
Part 2--Amendments to the Fair Trading Act 1999
s. 11
of transforming them or incorporating
them in other goods, in trade or
commerce, in the course of--
(i) a process of production or
5 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
10 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
15 commencement of section 11 of the
Fair Trading (Amendment) Act 2003.
(2) Sections 32NA, 32O, 32P and 32PA do not
apply to a contract of supply by way of lease
of goods.
20 (3) In sub-section (1) a reference to the re-
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
25 (b) a supply to another person of goods in
which the first-mentioned goods have
been incorporated.
32E. How is "cash price" determined for
contracts generally?
30 (1) Subject to sub-section (2), "cash price" in
section 32D in relation to a contract of
supply of goods or services means the
amount paid or payable by the purchaser for
the goods or services.
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Fair Trading (Amendment) Act 2003
Act No.
Part 2--Amendments to the Fair Trading Act 1999
s. 11
(2) If under a contract of supply of goods or
services, a purchaser purchases goods or
services together with other property or
services and a specified price is not allocated
5 to the goods or services in the contract or
agreement, "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
10 could have purchased from the supplier
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
15 available for purchase from the supplier
except together with other property or
services but, at that time, goods or
services of the kind purchased were
available for purchase from another
20 supplier without other property or
services--the lowest price at which the
purchaser could, at that time,
reasonably have purchased goods or
services of that kind from another
25 supplier; or
(c) if, at the time at which the contract is
made, goods or services of the kind
purchased were not available for
purchase from any supplier except
30 together with other property or
services--the value of the goods or
services at that time.
(3) This section does not apply to a contract of
supply of goods by way of lease.
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32EA. How is "cash price" determined for leases
of goods?
In section 32D "cash price" in relation to a
contract of supply of goods by way of lease
5 means--
(a) if at the time the contract is made the
goods are available for purchase from
the supplier--the lowest price at which
the purchaser might have purchased the
10 goods from the supplier; or
(b) if at the time the contract is made, the
goods are reasonably available for
purchase but are not available for
purchase from the supplier or are
15 available for purchase only together
with other property or services--the
lowest price at which, at that time, the
purchaser could reasonably have
purchased goods of that kind; or
20 (c) if at the time the contract is made, the
goods are not available for purchase or
are available for purchase only together
with other property or services--the
value of the goods at that time.
25 32EB. Presumption that this Part applies to supply
If it is alleged in any proceeding under this
Part or in any other proceeding in respect of
a matter arising under this Part that a
contract of supply of goods or services is a
30 contract to which this Part applies, it is to be
presumed, unless the contrary is established,
that this Part applies to the contract.
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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
5 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.
10 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
15 applies.
(2) Section 4(2) of the Goods Act 1958 is
deemed to apply in relation to this Part as
if--
(a) the reference to Part was a reference to
20 this Part; and
(b) the reference to contracts for the sale of
goods included a reference to contracts
of supply of goods.
(3) A reference in Part I of the Goods Act 1958
25 to a condition includes a reference to a
condition within the meaning of this Part.
(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.
30 (5) Except as otherwise expressly provided by
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.
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Division 3--Supply of Goods or Services
32G. Terms implied in contracts as to right to
supply
(1) Subject to section 32GA, in a contract of
5 supply of goods there is--
(a) an implied condition that--
(i) in the case of a contract, not being
an agreement to supply, the
supplier has a right to supply the
10 goods; and
(ii) in the case of an agreement to
supply, the supplier will have a
right to supply the goods at the
time when the property is to pass;
15 and
(b) an implied condition that, at the time
the property in the goods is to pass, the
goods will be free from any charge or
encumbrance other than a charge or
20 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; and
25 (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
benefit of a charge or encumbrance--
30 (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.
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(2) This section does not apply to a contract of
supply of goods by way of lease.
32GA. Transfer of limited interest in goods
(1) Section 32G does not apply to a contract of
5 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
transfer only such right, title or interest
10 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
under which the supplier intends to
15 transfer only such right, title or interest
as the supplier or a third party may
have.
(2) In a contract of supply of goods referred to in
sub-section (1) there is--
20 (a) an implied condition that--
(i) in the case of a contract, not being
an agreement to supply, the
supplier has a right to transfer that
right, title or interest in the goods;
25 and
(ii) in the case of an agreement to
supply, the supplier will have a
right to transfer that right, title or
interest in the goods at the time
30 when the property is to pass; and
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(b) an implied condition that, when the
property is to pass, there will be no
other right, title or interest in the goods
of which, when the contract is made,
5 the supplier is aware but the purchaser
is not aware; and
(c) an implied condition that at the time the
property in the goods is to pass the
goods will be free from any charge or
10 encumbrance other than a charge or
encumbrance subject to which the
purchaser has agreed to accept the
goods; and
(d) an implied warranty that the purchaser's
15 quiet possession of the goods will not
be disturbed by--
(i) the supplier; or
(ii) if the parties to the contract intend
that the supplier should transfer
20 only such right, title or interest as
a third person may have--that
third person; or
(iii) anyone claiming through or under
the supplier or that third person
25 otherwise than under a charge or
encumbrance subject to which the
purchaser has agreed to accept the
goods.
(3) This section does not apply to a contract of
30 supply of goods by way of lease.
32GB. 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 in a contract of
supply of goods under sub-section (1) or (2)
are--
30 (a) an implied condition that the goods will
correspond with the sample in quality;
and
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(b) an implied condition that the purchaser
will have a reasonable opportunity of
comparing the goods with the sample;
and
5 (c) an implied condition that the goods will
be free from any defect, rendering them
unmerchantable--
(i) that would not be apparent on
reasonable examination of the
10 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
supply of goods or services may be a
15 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
(1) In a contract of supply of goods by a supplier
20 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
are of merchantable quality if they are as fit
25 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
(b) the terms of the contract of supply; and
30 (c) the apparent condition of the goods
when the supply is made; and
(d) all other relevant circumstances.
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(3) The condition in a contract of supply of
goods referred to in sub-section (1) does not
extend to--
(a) defects of which the purchaser is aware
5 when the supply is made; or
(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.
10 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--
15 (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--
20 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
25 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
30 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
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(b) in the case of a supply of services by a
person who supplies the services in the
course of a business, an implied
condition that the services are as fit for
5 the purposes for which services of that
kind are commonly purchased as it is
reasonable to expect having regard to
the price of the services, the terms of
the supply and all other relevant
10 circumstances.
32JA. Fitness of services for purpose
(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
15 or by implication--
(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
20 supplier--
the particular purpose for which the services
are required or the result that the purchaser
desires the services to achieve, there is an
implied condition that the services are
25 reasonably fit for that purpose or are such as
might reasonably be expected to achieve that
result.
(2) Sub-section (1) does not apply if the
circumstances show that the purchaser does
30 not rely, or that it is unreasonable for the
purchaser to rely, on the skill or judgment of
the supplier, dealer or other person.
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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
5 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.
(2) The conditions set out in sub-section (3) are
10 implied in a contract of supply of services, if,
before entering the contract, the supplier, or
in the course of any antecedent negotiations,
a dealer or a person acting on behalf of the
supplier--
15 (a) shows to the purchaser a demonstration
of, or a result achieved by, services;
and
(b) the purchaser is induced by the
demonstration or by the showing of the
20 result to purchase services of that kind.
(3) The conditions implied in a contract of
supply of services under sub-section (1) or
(2) are--
(a) an implied condition that the services
25 will correspond in nature and quality
with the services shown in the
demonstration or will correspond in
quality with the services that achieved
that result; and
30 (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
purchased--
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(i) that would not be apparent on
reasonable examination of the
services shown in the
demonstration or the result
5 achieved by services of that kind;
and
(ii) of which the purchaser is not
aware when the contract is made.
32KA. Terms implied in contracts of supply of
10 both services and goods
(1) A term of a contract of supply of both goods
and services is to be treated for the purposes
of this Part as a condition of that contract if
the term--
15 (a) would be a condition of the contract if
it were a contract of supply only of the
goods; or
(b) would be a condition of the contract if
it were a contract of supply only of the
20 services.
(2) Sub-section (1) does not apply if, having
regard to the contract as a whole, it is shown
that the term ought not to be treated as a
condition of the contract.
25 (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
establish that the term should not be treated
as a condition.
30 (4) Despite anything to the contrary in
sub-section (1), a reference in that sub-
section to a supply of goods includes a
reference to the supply of materials in
connection with a supply of services.
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32L. Contract cannot exclude this Part
(1) A term of a contract of supply of goods or
services (including a term that is not set out
in the contract but is incorporated in the
5 contract by another term of the contract) is
void if the term purports to exclude, restrict
or modify or purports to have the effect of
excluding, restricting or modifying--
(a) the application in relation to that supply
10 of all or any of the provisions of this
Part; or
(b) the exercise of a right conferred by
such a provision; or
(c) any liability of the supplier for breach
15 of a condition or warranty implied by
such a provision.
(2) A term of a contract of supply of goods or
services must not be taken to exclude,
restrict or modify the application of a
20 provision of this Part unless the term does so
expressly or is inconsistent with that
provision.
32LA. Contract cannot exclude liability for
damages
25 Subject to sections 32MA and 32N, 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 provision--
30 (a) excludes, restricts or modifies or
purports to have the effect of excluding,
restricting or modifying liability for
damages in respect of a breach by a
supplier of a condition or warranty
35 implied by this Part in a contract; or
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(b) limits or purports to have 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
5 condition or warranty implied by this
Part in a contract; or
(c) requires a purchaser to indemnify a
supplier in respect of damages payable
for breach of a condition or warranty
10 implied by this Part in a contract; or
(d) provides that a purchaser is not entitled
to damages, or is entitled only to a
limited amount of damages, in respect
of a breach by a supplier of a condition
15 or warranty implied by this Part in a
contract unless the purchaser takes such
steps or follows such procedures as, but
for the provision, a purchaser would not
reasonably be expected to take or
20 follow.
32M. Penalties for including void provisions
(1) A supplier must not include or permit to be
included in a contract of supply of goods or
services a provision that by reason of section
25 32L is void.
Penalty: 60 penalty units, in the case of a
natural person.
120 penalty units, in the case of a
body corporate.
30 (2) Subject to sections 32MA and 32N, if there
is a contract of supply of goods or services or
a provision in or relating to a contract of
supply of goods or services of a kind referred
to in section 32LA, the supplier is guilty of
35 an offence and liable to a penalty not
exceeding 60 penalty units, in the case of a
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natural person or 120 penalty units, in the
case of a body corporate.
32MA. Limitation of liability generally
(1) Subject to sub-sections (2) and (3), a term of
5 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
warranty to--
10 (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;
(ii) the repair of the goods;
15 (iii) the payment of the cost of
replacing the goods or of
purchasing equivalent goods;
(iv) the payment of the cost of having
the goods repaired; or
20 (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.
(2) Sub-section (1) does not apply in relation to
25 a term of a contract of supply of goods or
services if the purchaser establishes that it is
unconscionable for the supplier to rely on
that term.
(3) In determining for the purposes of sub-
30 section (2) whether or not reliance on a term
is unconscionable and without in any way
limiting the matters to which a court or the
Tribunal may have regard, a court or the
Tribunal may have regard to all the
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circumstances of the case and in particular to
the following matters--
(a) the relative strengths of the bargaining
positions of the supplier and the
5 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
10 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,
15 among other things, to any custom of
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
20 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
25 (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
30 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
35 order of the purchaser.
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(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.
5 (5) This section does not apply to allow a
limitation of liability for a breach of a
condition or warranty implied by section
32G, 32GA or 32GB.
32N. Limitation of liability in relation to supply
10 of recreational services
(1) Subject to sub-section (2), a term of a
contract of supply of recreational services is
not void under section 32L or 32LA by
reason only that the term excludes, restricts
15 or modifies, or has the effect of excluding,
restricting or modifying--
(a) the application of section 32J or 32JA
to the supply of the recreational
services under the contract; or
20 (b) the exercise of a right conferred by
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
25 of condition implied by section 32J or
32JA in relation to the supply of the
recreational services under the contract.
(2) Sub-section (1) only applies if--
(a) the contract of supply of recreational
30 services was entered into on or after the
commencement of section 11 of the
Fair Trading (Amendment) Act 2003;
and
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(b) the exclusion, restriction or
modification contained in the term is
limited to liability for death or personal
injury; and
5 (c) the term--
(i) contains the prescribed particulars
(if any) and is in the prescribed
form (if any); or
(ii) is specified, or is of a class of term
10 specified, in an Order made under
section 32NA; and
(d) if there is a prescribed form for the
term, the supplier has not made a false
or misleading statement as to a material
15 particular in or in relation to the term;
and
(e) the term was signed by the purchaser
prior to the supply of the recreational
services.
20 (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--
(a) the person has done or omitted to do
25 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
section 32J or 32JA would apply;
30 or
(ii) give rise to the exercise of a right
conferred by section 32J or 32JA;
or
(iii) be a breach of a condition implied
35 by section 32J or 32JA; and
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(b) the act or omission was done or omitted
to be done with reckless disregard, with
or without consciousness, for the
consequences of the act or omission.
5 (4) In this section--
"disease" includes any physical or mental
ailment, disorder, defect or morbid
condition, whether of sudden onset or
gradual development and whether of
10 genetic or other origin;
"injury" means any physical or mental
injury;
"personal injury" means--
(a) an injury of a natural person
15 (including the aggravation,
acceleration or recurrence of an
injury of the individual); or
(b) the contraction, aggravation,
acceleration or recurrence of a
20 disease of a natural person; or
(c) the coming into existence, the
aggravation, acceleration or
recurrence of any other condition,
circumstance, occurrence, activity,
25 form of behaviour, course of
conduct or state of affairs in
relation to a natural person that is
or may be harmful or
disadvantageous to, or result in
30 harm or disadvantage to--
(i) the person; or
(ii) the community;
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"recreational services" means services that
consist of participation in--
(a) a sporting activity or a similar
leisure-time pursuit; or
5 (b) any other activity that--
(i) involves a significant degree
of physical exertion or
physical risk; and
(ii) is undertaken for the
10 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
15 provision of this Act other than this section.
32NA. Exemption from waiver form requirement
(1) The Governor in Council, on the
recommendation of the Minister, may, by
order published in the Government Gazette,
20 provide that a specified term of a contract of
supply of recreational services, or a class of
such term, does not need to comply with the
requirements of section 32N(2)(c)(i) or (e).
(2) The Governor in Council may make an
25 Order under this section subject to any
conditions the Governor in Council thinks fit
and specifies in the Order.
(3) An Order under this section has effect
according to its terms.
30 (4) The Governor in Council, on the
recommendation of the Minister, may, by
Order published in the Government Gazette,
vary or revoke an Order made under this
section.
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(5) An Order made under this section ceases to
have effect on--
(a) the expiry of the anniversary of the date
the Order was published in the
5 Government Gazette; or
(b) if an earlier expiry date is specified in
the Order, that earlier date.
32NB. Supplier to have reasonable opportunity to
make good title
10 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
32G(1), or in paragraph (a), (b) or (c) of
section 32GA(2), or an express term to a
15 similar effect, the purchaser may not
discharge the contract on the ground of the
breach unless--
(a) the purchaser has given notice to the
supplier to the effect that the purchaser
20 will discharge the contract unless the
supplier within a reasonable time
provides the title to the goods required
by the supply or removes the charge or
encumbrance on the goods, as the case
25 may be; and
(b) the supplier has not, within a
reasonable time after the notice was
given, provided the title required by the
contract or removed the charge or
30 encumbrance, as the case may be.
32O. Acceptance of goods
(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
35 supplier of a condition can only be treated as
the breach of a warranty and not as a ground
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for rejecting the goods and discharging the
contract of supply unless there is a term of
the contract, express or implied, to that
effect.
5 (2) Sub-section (3) applies if under a contract of
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
10 contract of supply; and
(b) the fact that they are so defective is
apparent at that time or becomes
apparent within a reasonable period
after that time; and
15 (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
20 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
25 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
30 (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
35 accepting the goods, by agreement with the
supplier delivers them to the supplier or to a
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person nominated by the supplier for repair
or replacement, the purchaser is not to be
deemed to have accepted the goods within
the meaning of section 42 of the Goods Act
5 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
which a purchaser under a contract of supply
10 of goods may, by reason of the breach of a
condition referred to in section 32NA, reject
the goods and discharge the contract of
supply.
(6) Nothing in this section confers on a
15 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
20 delivery to the purchaser.
32OA. Rescission for innocent misrepresentation
(1) If a purchaser enters into a contract of supply
of goods after an innocent misrepresentation
is made to the purchaser and, if the
25 misrepresentation had been fraudulent, the
purchaser would have been entitled to
rescind the contract by reason of the
misrepresentation, the purchaser may rescind
the contract by notice given to the supplier
30 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
goods.
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(2) Sub-section (1) applies whether or not the
misrepresentation has become a term of the
contract.
32P. Discharge or rescission of contract of
5 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
10 (b) in accordance with section 32OA(1)
rescinds a contract of supply of goods
after an innocent misrepresentation is
made.
(2) If the goods have been delivered to the
15 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.
(3) The purchaser is liable to the supplier for
20 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
a period of 21 days after discharging or
25 rescinding the contract; and
(b) by the purchaser wilfully while the
goods are in the purchaser's possession
after the expiration of a period of
21 days after discharging or rescinding
30 the contract.
(4) If the property in the goods passed to the
purchaser before the discharge or the
rescission, the property re-vests in the
supplier.
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(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 by the purchaser to the supplier.
5 (6) If--
(a) the purchaser used the goods before the
discharge or rescission; and
(b) the supplier acted honestly and
reasonably in supplying the goods--
10 the court may, if it is satisfied that, in all the
circumstances, it is just and convenient to do
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
15 the purchaser's use of the goods.
32PA. When does a discharge or rescission have
effect?
If a purchaser purports to discharge or
rescind a contract of supply of goods, the
20 purported discharge or rescission has effect
only if--
(a) the supplier is aware that the purchaser
treats the contract as at an end, whether
by reason of the return of the goods to
25 the supplier or by reason of any other
information which comes to the
knowledge of the supplier; or
(b) if the purchaser is unable, due to the
conduct or omission of the supplier,
30 after taking reasonable steps, to inform
the supplier or to cause the supplier to
become aware that the purchaser treats
the contract as at an end--
(i) the purchaser treats the contract as
35 at an end; and
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(ii) by the purchaser's conduct, shows
unequivocally that the purchaser
treats the contract as at an end.
32Q. Liability of supplier and person conducting
5 antecedent negotiations
(1) In a contract of supply of goods or services,
a representation made to the purchaser in the
course of any antecedent negotiations by a
dealer or by a person acting on behalf of the
10 supplier (otherwise than as an agent of the
supplier acting with the authority of the
supplier) confers on the purchaser--
(a) as against the supplier, the same right to
rescind the contract and the same right
15 of action in damages as the purchaser
would have had if the representation
had been made by an agent of the
supplier acting with the authority of the
supplier; and
20 (b) as against the person by whom the
representation was made, the same right
of action in damages as the purchaser
would have had if the purchaser had
purchased the goods or services from
25 that person; and
(c) if the antecedent negotiations were
conducted on behalf of another person,
as against that other person the same
right of action in damages as the
30 purchaser would have had if the
purchaser had purchased the goods or
services from that other person.
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(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
5 supplier (otherwise than as an agent of the
supplier acting with the authority of the
supplier) confers on the purchaser--
(a) as against the person by whom the
warranty was given, the same right of
10 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
15 from that person; and
(ii) the purchaser had purchased the
goods or services from that
person; and
(b) if the antecedent negotiations were
20 conducted on behalf of a dealer, as
against the dealer the same right of
action in damages as the purchaser
would have had if--
(i) the warranty had been given in
25 consideration of the purchaser
purchasing the goods or services
from the dealer; and
(ii) the purchaser had purchased the
goods or services from the dealer.
30 (3) For the purposes of sub-sections (1) and (2)
it is immaterial whether or not the goods or
services supplied to the purchaser were
purchased by the supplier from a dealer by
whom or on whose behalf any antecedent
35 negotiations were conducted.
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(4) Nothing in this section prevents a statement
being both a representation and a warranty.
(5) Nothing in this section confers on a
purchaser an entitlement to an amount of
5 damages arising from a representation or a
warranty exceeding the amount of the loss
suffered by the purchaser.
32QA. Indemnity for supplier or dealer
(1) Without prejudice to any other rights or
10 remedies to which a supplier may be entitled,
a supplier is entitled to be indemnified--
(a) by a person by whom any antecedent
negotiations were conducted who made
a representation or gave a warranty; and
15 (b) by a dealer on whose behalf any
antecedent negotiations were conducted
by another person who made a
representation or gave a warranty--
against any damage suffered by the supplier
20 by reason of the operation of section 32Q.
(2) Without prejudice to any other rights or
remedies to which a dealer may be entitled, a
dealer is entitled to be indemnified by a
person who conducted any antecedent
25 negotiations on behalf of the dealer and
made a representation or gave a warranty
against any damage suffered by the dealer by
reason of the operation of section 32Q.
32R. Certain contracts or provisions void
30 A contract of supply of goods or services or
a provision in or that relates to a contract of
supply of goods or services that purports to
have the effect of excluding, restricting or
modifying the provisions of section 32Q or
35 32QA or purports to have the effect of
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precluding a right of action or a defence
based on or arising out of a representation or
a warranty referred to in section 32Q(1) or
(2), is void.
5 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
conducted must not include or permit to be
10 included in a contract of supply of goods or
services a provision that by reason of section
32R is void.
Penalty: 60 penalty units, in the case of a
natural person.
15 120 penalty units, in the case of a
body corporate.
Division 4--General
32S. Implied terms do not negative express terms
unless inconsistent
20 A condition or warranty implied by this Part
in a contract of supply of goods or services
does not negative an express term in the
contract except to the extent that the express
term is inconsistent with the implied
25 condition or warranty.
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 of
30 goods or services, the liability of the
guarantor in relation to the performance of
those obligations does not include liability in
respect of an amount exceeding the sum of--
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(a) the amount for which the purchaser is
liable by reason of the breach of the
contract of supply; and
(b) the reasonable costs of and incidental to
5 enforcing the contract of guarantee.
(2) Subject to sub-section (3), a guarantor of the
obligations of a purchaser under a contract of
supply of goods or services where the
purchaser is a minor is liable under the
10 contract of guarantee to the 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
15 to a contract of guarantee unless, when it was
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
20 respect of the obligations of a purchaser who
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.
25 (4) In this section--
"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
30 each of them provides personal or
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
35 living under the same roof, but does not
include a person who provides
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domestic support and personal care to
the person--
(a) for fee or reward; or
(b) on behalf of another person or an
5 organisation (including a
government or government
agency, a body corporate or a
charitable or benevolent
organisation);
10 "guarantee" includes indemnity;
"guarantor" means a person who enters
into a contract of guarantee in respect
of the performance of the obligations of
a purchaser under a contract of supply
15 of goods or services or of a person who
enters into a contract of indemnity in
relation to a contract of supply of goods
or services but does not include--
(a) a person who is the supplier, or
20 spouse or domestic partner of the
supplier of goods or services to
which the contract relates; or
(b) if the supplier is a body corporate,
a person who is a director or an
25 officer of the body corporate or is
a related body corporate within
the meaning of the Corporations
Act or a director or an officer of a
related body corporate or spouse
30 or domestic partner of that
director or officer; or
(c) a person who enters into a contract
of guarantee or a contract of
indemnity in respect of the
35 obligations, under a contract of
supply of goods or services, of a
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person who deals in goods or
services of the kind to which the
contract of supply relates;
"spouse" of a person means a person to
5 whom the person is married.
(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
10 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
15 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
20 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 of goods or services, the amount
secured in respect of the liability of that
25 person in respect of those 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
30 contract of supply of goods or services;
and
(b) the reasonable costs of, and incidental
to, enforcing the mortgage, charge,
pledge, lien or other security.
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32TA. Contract of supply not illegal etc.
(1) A contract of supply of goods or services is
not illegal, void or unenforceable by reason
only that the supplier is guilty of an offence
5 under this Part.
(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, aid, abet, counsel or procure the
10 commission of the offence.'.
12. Insertion of new Part 2B
Before Part 3 of the Fair Trading Act 1999
insert--
'PART 2B--UNFAIR TERMS IN CONSUMER
15 CONTRACTS
32U. Definitions
For the purposes of this Part--
"consumer", in relation to a consumer
contract, means a person to whom
20 goods or services have been or are to be
supplied under the contract;
"consumer contract" includes a standard
form contract;
"injunction" includes interim injunction;
25 "prescribed unfair term" means a term
that is prescribed by the regulations to
be an unfair term or a term to the like
effect;
"standard form contract" means a
30 consumer contract that has been drawn
up for general use in a particular
industry, whether or not the contract
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differs from other contracts used in that
industry;
"unfair term" has the meaning given by
section 32W and includes a prescribed
5 unfair term.
32V. Application of Part
This Part does not apply to contractual
terms--
(a) contained in a contract to which the
10 Consumer Credit (Victoria) Act 1995
applies;
(b) that are required or expressly permitted
by law, but only to the extent required
or permitted.
15 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
20 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
25 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
30 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;
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(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
5 the contract;
(d) permitting the supplier but not the
consumer to vary the terms of the
contract;
(e) permitting the supplier but not the
10 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;
15 (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
20 determine whether the contract had
been breached or to interpret its
meaning;
(i) limiting the supplier's vicarious liability
for its agents;
25 (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;
30 (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.
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32Y. Effect of unfair term
(1) An unfair term in a consumer contract is
void.
(2) A prescribed unfair term in a standard form
5 contract is void.
(3) The contract will continue to bind the parties
if it is capable of existing without the unfair
term or the prescribed unfair term.
(4) Sub-section (1) applies to any consumer
10 contract entered into on or after the
commencement of section 12 of the Fair
Trading (Amendment) Act 2003.
(5) Sub-section (2) applies to any standard form
contract whether entered into before or after
15 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.
20 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
25 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.
30 20 penalty units, in the case of a
body corporate.
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32ZA. Injunctions to prevent continued use of
unfair terms
(1) The Director may apply to the Tribunal for
an injunction against any person who, in the
5 Director's opinion, is using, or
recommending the use of--
(a) an unfair term in consumer contracts; or
(b) a prescribed unfair term in standard
form contracts.
10 (2) The Tribunal, if it is satisfied that, in all the
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.
15 (3) Section 123(2) to (7) of the Victorian Civil
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
20 of a particular term in a consumer contract or
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
25 information
(1) The Director may exercise the powers
conferred under this section for the purposes
of--
(a) facilitating the Director's consideration
30 of a complaint that--
(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
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(b) ascertaining whether a person has
complied with a Tribunal order as to--
(i) the continued use, or
recommendation for use of a term
5 in a consumer contract; or
(ii) the continued use of a prescribed
unfair term in a standard form
contract.
(2) The Director may, by notice in writing,
10 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);
15 (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
20 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.
25 (5) A person must not, without reasonable
excuse, refuse or fail to comply with a
requirement of the Director under this
section within the required time.
Penalty: 60 penalty units.
30 (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
35 would tend to incriminate the person.
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(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,
5 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
an order declaring that--
10 (a) a contract is a consumer contract or
standard form contract;
(b) a term of a consumer contract is an
unfair term;
(c) a term of a standard form contract is a
15 prescribed unfair term.
(2) The Tribunal may make a declaration in
relation to a matter under sub-section (1) or
any related matter.
(3) The Tribunal's power to make a declaration
20 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
Tribunal for an advisory opinion any matter,
25 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
is an unfair term;
30 (c) whether a term of a standard form
contract is a prescribed unfair term.
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(2) The Tribunal may provide an advisory
opinion in relation to a matter under sub-
section (1) or any related matter.'.
13. Interim ban order
5 After section 35(3) of the Fair Trading Act 1999
insert--
"(4) An interim ban order may apply, adopt or
incorporate, wholly or partially or as
amended by the order, any matter contained
10 in any document as existing--
(a) from time to time; or
(b) at a particular time.".
14. Permanent or fixed term ban order
(1) Insert the following heading to section 39 of the
15 Fair Trading Act 1999--
"Permanent ban order or fixed term ban order
made after interim ban order".
(2) In section 39 of the Fair Trading Act 1999, after
"permanent ban order" insert "or a fixed term ban
20 order".
15. General power to make permanent ban order or fixed
term ban order
(1) Insert the following heading to section 40 of the
Fair Trading Act 1999--
25 "General power to make permanent ban order or
fixed term ban order".
(2) In section 40(1) of the Fair Trading Act 1999,
after "permanent ban order" insert "or a fixed
term ban order".
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(3) For section 40(2) of the Fair Trading Act 1999
substitute--
"(2) The Minister must not make a permanent ban
order or a fixed term ban order under sub-
5 section (1) unless--
(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
10 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
15 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
20 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
25 1999, after "prohibited" insert "or restricted".
(5) For section 40(4) of the Fair Trading Act 1999
substitute--
"(4) If a permanent ban order or fixed term ban
order is made under this section, any interim
30 ban order applying to the goods or services
to which the permanent ban order or fixed
term ban order relates is revoked.
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(5) A permanent ban order or a fixed term ban
order may apply, adopt or incorporate,
wholly or partially or as amended by the
order, any matter contained in any document
5 as existing--
(a) from time to time; or
(b) at a particular time.".
16. New section 41 substituted
For section 41 of the Fair Trading Act 1999
10 substitute--
"41. When does a permanent ban order or a
fixed term ban order take effect?
(1) A permanent ban order or fixed term ban
order must be published in the Government
15 Gazette.
(2) A permanent ban order or fixed term ban
order takes effect on the date on which it is
published in the Government Gazette.
(3) The Minister must specify in a fixed term
20 ban order the period during which the order
has effect.
(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.
25 (5) Subject to section 43, at or before the end of
the term specified in a fixed term ban order
the Minister, by order published in the
Government Gazette, may--
(a) make a new fixed term ban order; or
30 (b) make a permanent ban order.".
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17. Notice of order
In section 42 of the Fair Trading Act 1999, after
"permanent ban order" (wherever occurring)
insert "or a fixed term ban order".
5 18. New section 43 substituted
For section 43 of the Fair Trading Act 1999
substitute--
"43. Revocation or amendment of permanent
ban order or fixed term ban order
10 The Minister may, by order published in the
Government Gazette, revoke or amend a
permanent ban order or a fixed term ban
order.".
19. Offence to contravene permanent ban order or fixed
15 term ban order
(1) Insert the following heading to section 44 of the
Fair Trading Act 1999--
"Offence to contravene permanent ban order or
fixed term ban order".
20 (2) In section 44 of the Fair Trading Act 1999, after
"permanent ban order" insert "or a fixed term ban
order".
20. Loss, injury or damage arising from a contravention
of this Division
25 In section 45(2)(a) of the Fair Trading Act 1999,
after "interim ban order" insert ", a fixed term ban
order".
21. Compulsory recall
(1) In section 50(1)(a)(iii) of the Fair Trading Act
30 1999, after "interim ban order" insert ", a fixed
term ban order".
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(2) After section 50(3) of the Fair Trading Act 1999
insert--
"(3A) A notice under sub-section (1) may apply,
adopt or incorporate, wholly or partially or
5 as amended by the notice, any matter
contained in any document as existing--
(a) from time to time; or
(b) at a particular time.".
22. Review of ban order or compulsory recall notice
10 (1) Insert the following heading to section 57 of the
Fair Trading Act 1999--
"Review of ban order or compulsory recall
notice".
(2) In section 57(1) of the Fair Trading Act 1999,
15 after "interim ban order" insert ", a fixed term ban
order".
23. Off-Business-Premises Sales
For the heading to Part 4 of the Fair Trading Act
1999 substitute--
20 "PART 4--OFF-BUSINESS-PREMISES
SALES AND OTHER SALES".
24. Application
In section 59 of the Fair Trading Act 1999--
(a) in paragraph (c) for "sale" substitute
25 "supply";
(b) in paragraph (d) for "sale" substitute
"supply".
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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"
5 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
10 (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--
15 "(4) Sections 62A to 62E do not apply to a
contact sales agreement referred to in sub-
section (1)(b)(iii).".
26. Requirements for contact sales agreements
(1) For section 61(1)(c) of the Fair Trading Act
20 1999 substitute--
"(c) the agreement must be accompanied by a
notice completed in accordance with Part 2
of Schedule 2 which may be used by the
purchaser to cancel the agreement;".
25 (2) In sections 61(1)(d) and 61(1)(h)(ii) of the Fair
Trading Act 1999 omit "office".
(3) In section 61(1)(e) of the Fair Trading Act 1999,
after "handwritten)" insert "and otherwise must
comply with section 163".
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(4) For section 61(2) of the Fair Trading Act 1999
substitute--
"(2) The information required under sub-sections
(1)(a)(i) and (ii) and (1)(b) must be
5 conspicuous and prominent in the agreement
or notice (as the case may be).".
27. New sections 62A, 62B, 62C, 62D and 62E inserted
After section 62 of the Fair Trading Act 1999
insert--
10 '62A. Duty to obtain prior consent to visit
(1) 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 8.00 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.
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(2) For the purposes of this section--
"prior consent to visit" means--
(a) consent given by a person to a
supplier or to a person acting on
5 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
10 negotiating a contact sales
agreement or for an incidental or
related purpose;
Example
S, a mobile phone seller, knocks on
15 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.
S asks P if she can come back on Sunday
and P reluctantly agrees. This is not prior
20 consent to visit because it was given
face-to-face. If S had contacted P by
telephone, then it would have been prior
consent.
(b) consent given by a person to a
25 supplier or to a person acting on
behalf of a supplier to visit the
premises of that person for the
purpose of conducting a party plan
or for an incidental or related
30 purpose;
"party plan" means negotiations by a
supplier or person acting on behalf of a
supplier with at least three persons, at
the same time and in the same
35 premises, for the supply of goods or
services.
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62B. Duty not to remain on premises for long
periods
(1) Subject to sub-section (2), a supplier or
person acting on behalf of a supplier who is
5 carrying on negotiations at a premises which
may lead to a contact sales agreement or for
an incidental or related purpose must not
remain on the premises for more than one
hour.
10 Penalty: 120 penalty units, in the case of a
natural person.
240 penalty units, in the case of a
body corporate.
(2) Sub-section (1) does not apply if the supplier
15 or person acting on behalf of the supplier
remains on the premises with the consent of
the person with whom the negotiations are
being conducted and the consent complies
with sub-section (4).
20 (3) Sub-section (1) does not apply in the case
of a party plan (within the meaning of
section 62A).
Example
S, a kitchenware party plan seller, telephones P on
25 Friday afternoon and asks P if she is interested in
hosting a kitchenware party 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
30 party, section 62B(1) will not apply to S.
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(4) A consent under sub-section (2)--
(a) must be in writing; and
(b) must only apply to a period of one half
hour; and
5 (c) must not be given during a period
referred to in section 62A(1).
(5) More than one consent may be provided
under sub-section (4).
(6) Nothing in this section limits the operation
10 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
premises which may lead to a contact sales
15 agreement or for an incidental or related
purpose must leave the premises
immediately on the request of--
(a) the occupier of the premises, or any
person acting with the actual or implied
20 authority of the occupier; or
(b) the person with whom the negotiations
are being conducted.
Penalty: 120 penalty units, in the case of a
natural person.
25 240 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
30 which may lead to a contact sales agreement
or for an incidental or related purpose, must
produce evidence of his or her identity--
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(a) on his or her first entering into
negotiations; and
(b) at any time after that, if so requested by
the person with whom the negotiations
5 are being conducted.
Penalty: 120 penalty units, in the case of a
natural person.
240 penalty units, in the case of a
body corporate.
10 (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
person is representing and the business or
residential address of the person.
15 62E. Duty to inform
Before commencing negotiations which may
lead to a contact sales agreement, a supplier
or person acting on behalf of a supplier must
orally inform the person with whom the
20 negotiations are being conducted that the
supplier or person acting on behalf of a
supplier--
(a) is not permitted to remain on the
premises for more than one hour unless
25 the person with whom the negotiations
are being conducted consents in writing
to an extension in accordance with
section 62B(2) or the negotiations are
in the course of a party plan (within the
30 meaning of section 62A); and
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(b) must leave the premises if requested to
do so by the occupier of the premises,
or any person acting with the actual or
implied authority of the occupier, or the
5 person with whom the negotiations are
being conducted.
Penalty: 120 penalty units, in the case of a
natural person.
240 penalty units, in the case of a
10 body corporate.'.
28. When can the purchaser cancel the agreement?
(1) For section 63(1) of the Fair Trading Act 1999
substitute--
"(1) The purchaser under a contact sales
15 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
20 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
25 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".
30 (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
35 contact sales agreement, the purchaser under
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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
5 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".
29. What can the supplier charge on cancellation?
10 For sections 66(2) and 66(3) of the Fair Trading
Act 1999 substitute--
"(2) If a contact sales agreement is cancelled
under this Division, a supplier is not entitled
to charge for services provided under the
15 agreement before it is cancelled, except in
accordance with this section.
(3) If a purchaser cancels a contact sales
agreement under this Division, the supplier
may apply to the Tribunal for an order that
20 the purchaser must pay to the supplier a
reasonable amount (to be determined by the
Tribunal) for services provided under the
agreement before it was cancelled.
(3A) The Tribunal must not make an order under
25 sub-section (3) unless the Tribunal is
satisfied that the supplier or a person acting
on behalf of the supplier has not contravened
this Act in relation to the contact sales
agreement.".
30 30. Requirements for non-contact sales agreements
For section 69(2) of the Fair Trading Act 1999
substitute--
"(2) If a non-contact sales agreement is in
writing--
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(a) the document must comply with
section 163 and must include the full
business address of the supplier; and
(b) the information under sub-section (1),
5 and the full business address of the
supplier, must be conspicuous and
prominent in the agreement.".
31. When can the purchaser cancel the agreement?
In section 71(2) of the Fair Trading Act 1999,
10 for "5 business days after" substitute "10 days
from and including".
32. Sections 76 and 77 repealed
Sections 76 and 77 of the Fair Trading Act 1999
are repealed.
15 33. New section 80 substituted
For section 80 of the Fair Trading Act 1999
substitute--
"80. Prohibition on payment for services during
cooling-off period
20 A supplier must not require or accept
payment from a purchaser under a contact
sales agreement or a non-contact sales
agreement during the cooling-off period for
that agreement for services provided under
25 that agreement during that period.
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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34. 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
5 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
10 a post box) of the supplier; and".
35. New section 84A inserted
After section 84 of the Fair Trading Act 1999
insert--
"84A. Lay-by goods must be available
15 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
20 when the terms of the lay-by indicate they
will be available.
Penalty: 60 penalty units, in the case of a
natural person.
120 penalty units, in the case of a
25 body corporate.".
36. 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
30 cancellation of a lay-by, the supplier must
provide to the purchaser a prescribed
cancellation form--
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(a) if the request for oral cancellation is
made in person, by immediately
handing it to the purchaser; or
(b) if the request for oral cancellation is
5 made by telephone, by posting it to the
purchaser as soon as practicable.
Penalty: 60 penalty units, in the case of a
natural person.
120 penalty units, in the case of a
10 body corporate.".
(2) In section 85(2)(a)(ii) of the Fair Trading Act
1999, for "agreement" substitute "lay-by".
37. Cancellation where business closes
(1) In section 88 of the Fair Trading Act 1999, for
15 "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 "agreement" substitute "lay-by".
20 38. Cancellation charge must not exceed a reasonable
amount
In section 90(1) of the Fair Trading Act 1999--
(a) omit "agreement" (where first occurring);
and
25 (b) for "agreement" (where secondly and thirdly
occurring) substitute "lay-by".
39. Director of Consumer Affairs Victoria
(1) Insert the following heading to section 98 of the
Fair Trading Act 1999--
30 "Director of Consumer Affairs Victoria".
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(2) In section 98 of the Fair Trading Act 1999, for
"Consumer and Business Affairs" substitute
"Consumer Affairs Victoria".
40. Functions and powers of the Director
5 (1) In section 100(1) of the Fair Trading Act 1999--
(a) in paragraph (a) after "Act" insert "or a
Consumer Act";
(b) in paragraph (b) after "Act" insert "or a
Consumer Act";
10 (c) in paragraph (c) after "regulations" insert "or
of a Consumer Act or the regulations under a
Consumer Act";
(d) in paragraph (d) after "regulations" insert
"or of a Consumer Act or the regulations
15 under a Consumer Act";
(e) in paragraph (e) after "Act" insert "or with a
Consumer Act".
(2) In section 101 of the Fair Trading Act 1999,
after "delegation" insert "or a power of the
20 Director under section 106I".
41. Part 8 headings amended
(1) For the heading to Part 8 of the Fair Trading Act
1999 substitute--
"PART 8--POWERS OF DIRECTOR".
25 (2) After the heading to Part 8 of the Fair Trading
Act 1999 insert the heading--
"Division 1--Disputes".
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42. Conciliation
In section 104 of the Fair Trading Act 1999--
(a) in sub-section (1) for "fair trading employee"
substitute "consumer affairs employee";
5 (b) in sub-section (4) for "fair trading
employee" substitute "consumer affairs
employee".
43. Power of the Director to institute and defend
proceedings
10 For section 105(2) of the Fair Trading Act 1999
substitute--
"(2) The Director must not, under sub-section (1),
institute or defend proceedings on behalf of a
person unless that person has given consent
15 in writing.
(3) After consent has been given under sub-
section (2), the Director may institute or
continue with a proceeding or defence on
behalf of a person even if the person revokes
20 the consent.".
44. 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-
25 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--
30 "(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--
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(a) the Director must compensate the
person for--
(i) any loss suffered as the result of
the loss of any settlement offer
5 made to the person; and
(ii) out-of-pocket expenses incurred
by the person during the
proceedings after the revocation of
consent; and
10 (b) the Director is liable to pay any amount
awarded against the person in the
proceedings.
(1B) If the Director institutes, defends or
continues proceedings on behalf of a person
15 after the person revokes the consent to the
proceedings or defence, any amount
recovered in the proceedings (including any
amount for costs) that exceeds the amount
payable to the person under sub-section (1A)
20 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 Director in relation to the
proceedings.".
25 45. New Divisions 2, 3 and 4 inserted in Part 8
After section 106 of the Fair Trading Act 1999
insert--
'Division 2--Suppliers
106A. Substantiation of claims
30 (1) The Director may, by notice in writing,
require a person who publishes or causes to
be published a statement promoting, or
apparently intending to promote, the supply
of goods or services, to provide to the
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Director, within the period specified in the
notice, proof of any claim or representation
made in the statement.
(2) A person on whom a notice under this
5 section is served, who--
(a) fails to provide proof sufficient to
support the claim or representation; or
(b) fails, without reasonable excuse, to
provide that proof by the time specified
10 in the notice; or
(c) provides information which is false or
misleading--
is guilty of an offence and liable to a penalty
not exceeding--
15 (d) 600 penalty units, in the case of a
natural person; or
(e) 1200 penalty units, in the case of a
body corporate.
106B. "Show cause" notice
20 (1) The Director may, by notice in writing,
require a supplier to show cause why the
supplier should be allowed to continue
carrying on the business of supplying goods
or services.
25 (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
that--
(a) the supplier has engaged in conduct that
30 contravenes this Act or the regulations;
and
(b) it is likely that the supplier will
continue to engage in that conduct; and
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(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.
5 (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
10 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
15 corporation;
(b) specify the conduct which the supplier
is believed to have engaged in;
(c) state the time period within which the
supplier must respond to the notice, that
20 time period being not less than 14 days
from the date of service of the notice;
(d) state what steps need to be taken by the
supplier to respond to the notice;
(e) state the consequences for the supplier
25 of not responding to the notice.
(4) Despite sub-section (3)(a)(i), if, on the
application of the Director, it appears to the
Tribunal that service cannot be promptly
effected on a supplier who is a natural
30 person, the Tribunal may order that the
notice be served--
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(a) by sending it by post, facsimile or other
electronic transmission to the supplier
at his or her usual or last known
residential or business address; or
5 (b) by leaving it at the supplier's usual or
last known residential or business
address with a person on the premises
who is apparently at least 16 years old
and apparently residing or employed
10 there.
(5) If a supplier has not responded to a notice
under this section in accordance with sub-
section (3) within the period specified in the
notice, the supplier must, at the end of that
15 period, cease to carry on a business of
supplying goods or services to which the
notice relates or any business of a like kind.
Penalty: 600 penalty units, in the case of a
natural person.
20 1200 penalty units, in the case of a
body corporate.
(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.
25 (7) A supplier must not, in response to the
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.
30 1200 penalty units, in the case of a
body corporate.
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Division 3--Licence Suspension
106C. Definitions
In this Division--
"licence" means--
5 (a) a licence issued or granted
under--
(i) the Estate Agents Act 1980;
or
(ii) the Motor Car Traders Act
10 1986; or
(iii) the Prostitution Control
Act 1994; or
(iv) the Travel Agents Act 1986;
or
15 (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
20 a motor car trader within the
meaning of the Motor Car
Traders Act 1986; or
(d) an approval under Division 5 of
Part 3 of the Prostitution Control
25 Act 1994; or
(e) a registration granted under Part 4
of the Consumer Credit
(Victoria) Act 1995; or
(f) a right to engage in finance
30 broking within the meaning of
Part 4A of the Consumer Credit
(Victoria) Act 1995; or
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(g) a right to act as an introduction
agent within the meaning of the
Introduction Agents Act 1997;
or
5 (h) a registration or endorsement of
registration under the Second-
Hand Dealers and Pawnbrokers
Act 1989;
"licence suspension period" in relation to a
10 licence, means the period--
(a) commencing on the date of
service of the notice in relation to
the licence under section 106D;
and
15 (b) ending on--
(i) the lapsing of the suspension
of the licence under
section 106F; or
(ii) the date of an order referred
20 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
25 licence.
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
30 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--
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(a) the licensee has engaged in conduct that
under the relevant business licensing
Act would constitute grounds for the
initiation of disciplinary action against
5 the licensee or the bringing of
proceedings for an offence or for an
injunction; and
(b) it is likely that the licensee will
continue to engage in that conduct; and
10 (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.
(3) A notice under sub-section (1)--
15 (a) must be served--
(i) personally on a licensee who is a
natural person; or
(ii) at the registered office and the last
known business address of a
20 licensee that is a corporation; or
(iii) at the last known business address
of a licensee that is a body
corporate, other than a
corporation;
25 (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;
(d) has effect, whether or not the licensee
30 has been afforded an opportunity to be
heard on the matter.
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(4) Despite sub-section (3)(a)(i), if, on the
application of the Director, it appears to the
Tribunal that service cannot be promptly
effected on a licensee who is a natural
5 person, the Tribunal may order that the
notice be served--
(a) by sending it by post, facsimile or other
electronic transmission to the person at
his or her usual or last known
10 residential or business address; or
(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
15 apparently residing or employed there.
(5) The suspension takes effect on the service of
the notice.
106E. Effect of suspension
(1) This section applies despite anything to the
20 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
suspending--
(a) an estate agent's licence under the
25 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
30 (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.
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(3) If a notice is issued under this Division
suspending a licensee's right to act as an
agent's representative within the meaning of
the Estate Agents Act 1980, the licensee is
5 deemed to be ineligible to act as an agent's
representative for the purposes of that Act
for the licence suspension period.
(4) If a notice is issued under this Division
suspending a licensee's right to participate in
10 a customer service capacity in the business
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
15 customer service capacity by a motor car
trader for the licence suspension period.
(5) If a notice is issued under this Division
suspending an approval under Division 5 of
Part 3 of the Prostitution Control Act 1994,
20 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 Division
suspending the registration of a licensee
25 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 Division
30 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
35 for the purposes of that Act for the licence
suspension period.
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(8) If a notice is issued under this Division
suspending a licensee's right to act as an
introduction agent within the meaning of the
Introduction Agents Act 1997, the licensee
5 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 Division
suspending the registration or endorsement
10 of registration of a licensee under the
Second-Hand Dealers and Pawnbrokers
Act 1989, the registration or endorsement is
deemed to be suspended for the purposes of
that Act for the licence suspension period.
15 106F. Lapsing or continuation of suspension
(1) A suspension under this Division lapses if
within the required period after the service of
the notice--
(a) an application is not made to the
20 Tribunal under a business licensing Act
to inquire into the conduct of the
licensee that is the subject of the notice;
or
(b) proceedings have not commenced in a
25 court in relation to the conduct of the
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
30 under a business licensing Act to
inquire into the conduct of the licensee
that is the subject of the notice; or
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(b) proceedings are commenced in a court
in relation to the conduct of the licensee
that is the subject of the notice--
the suspension continues until a further order
5 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
this Division for a period of 6 months from
10 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
person or body by or under a business
15 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--
(a) 14 days; or
20 (b) if the Tribunal or a court makes an
order under section 106G extending
that period, that extended period.
106G. Extension of period
(1) The Director may apply to the Tribunal or
25 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
extension, to extend the period within which
30 an application must be made or proceedings
commenced for the purposes of section
106F(1) and (2).
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(2) On an application under sub-section (1), the
Tribunal or court--
(a) must consider the likelihood that an
application or proceedings referred to
5 in section 106F(1) and (2) will be made
or commenced; and
(b) may make an order extending the
period if in all the circumstances it
considers it just and convenient to do
10 so.
(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
15 notice of the application to be given to any
person.
106H. Right of review
A licensee may apply to the Tribunal for a
review of the decision to issue a notice under
20 this Division.
Division 4--Obtaining Information,
Documents and Evidence
106I. Power to obtain information, documents
and evidence
25 (1) If the Director believes that a person is
capable of providing information, producing
documents or giving evidence relating to a
matter that constitutes, or may constitute, a
contravention of this Act, the Director may,
30 by notice in writing, require that person--
(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
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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
5 the Director's behalf, in accordance
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
10 writing, and produce those documents.
(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.
15 (3) A person must not--
(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
20 (b) in purported compliance with a notice
under this section, knowingly provide
information or give evidence that is
false or misleading; or
(c) obstruct or hinder the Director in
25 exercising a power under this section.
Penalty: 60 penalty units.
(4) Subject to sub-section (5), a person is not
excused from answering a question,
providing information or producing or
30 permitting the inspection of a document on
the ground that the answer, information or
document may tend to incriminate the
person.
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(5) Despite sub-section (4), the answer by a
person to any question asked in a notice
under this section or the provision by a
person of any information in compliance
5 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
corporate--in any criminal proceedings
other than proceedings under this
10 section; or
(b) in the case of a body corporate--in any
criminal proceedings other than
proceedings under this Act.
106J. Powers in relation to documents
15 If any documents are produced to the
Director under this Division, the Director
may--
(a) inspect the documents or authorise a
person to inspect the documents;
20 (b) make copies of or take extracts of the
documents;
(c) seize the documents if the Director--
(i) considers the documents
necessary for obtaining evidence
25 for the purpose of any proceedings
against any person under this Act
or the regulations; or
(ii) considers the documents
necessary for obtaining evidence
30 for the purpose of any proceedings
against any person under any
other Consumer Act or the
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.'.
46. 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".
47. 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.".
48. 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.'.
49. 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.".
50. 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.".
51. 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 52. 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.".
53. 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--
35 "specified information which--
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(a) is required by this Act or the regulations to
be kept by the publisher; or
(b) has been published by the publisher".
54. Emergency entry
5 In section 121(1) of the Fair Trading Act 1999,
after "interim ban order" insert ", a fixed term ban
order".
55. New section 129 substituted
For section 129 of the Fair Trading Act 1999
10 substitute--
"129. Magistrates' Court may extend 3 month
period
(1) An inspector may apply to the Magistrates'
Court--
15 (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
20 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
25 12 months.
(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
30 exceed 12 months; and
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(c) retention of the document or other thing
is necessary--
(i) for the purposes of an
investigation into whether a
5 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
10 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
15 document or thing described in the
application.".
56. New section 144 substituted
For section 144 of the Fair Trading Act 1999
substitute--
20 '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--
25 (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
30 (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
consent or agreement of the body
35 corporate; and
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(ii) the agent had that state of mind;
and
(iii) the body corporate was aware of
the agent's state of mind when the
5 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
engaged in also by the body corporate if the
10 conduct was engaged in by--
(a) an officer of the body corporate within
the scope of the officer's actual or
apparent authority; or
(b) any other person at the specific
15 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
scope of the actual or apparent
20 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
relation to particular conduct, it is sufficient
25 to show--
(a) that the conduct was engaged in by an
employee of that person within the
scope of the employee's actual or
apparent authority and the employee
30 had that state of mind; or
(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
35 consent or agreement of the
person; and
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(ii) the agent had that state of mind;
and
(iii) the person was aware of the
agent's state of mind when the
5 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
principal") is deemed to have been engaged
10 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
apparent authority; or
15 (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,
consent or agreement is within the
20 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
knowledge, intention, opinion, belief or
25 purpose of the person and the person's
reasons for the intention, opinion, belief or
purpose.'.
57. Repeal of section 145
Section 145 of the Fair Trading Act 1999 is
30 repealed.
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58. New section 145 inserted
In Division 2 of Part 11 of the Fair Trading Act
1999, before section 146 insert--
"145. Interpretation
5 A reference in this Division to a person
involved in a contravention of this Act
means a reference to a person who--
(a) has aided, abetted, counselled or
procured the contravention;
10 (b) has induced, whether by threats or
promises or otherwise, the
contravention;
(c) has been in any way, directly or
indirectly, knowingly concerned in or
15 party to, the contravention;
(d) has conspired with others to effect the
contravention.".
59. New sections 151A, 151B and 151C inserted
After section 151 of the Fair Trading Act 1999
20 insert--
"151A. Cease trading injunctions
(1) The Minister or the Director may apply to
the Supreme Court for the grant of an
injunction restraining a person from carrying
25 on a business of supplying goods or services
(whether or not as part of, or incidental to,
the carrying on of another business) if the
person is or has been engaging in conduct
that constitutes--
30 (a) a contravention of any provision of this
Act; or
(b) attempting or conspiring to contravene
such a provision; or
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(c) aiding, abetting, counselling or
procuring a person to contravene such a
provision; or
(d) inducing or attempting to induce a
5 person, whether by threats, promises or
otherwise, to contravene such a
provision; or
(e) being in any way directly or indirectly,
knowingly concerned in, or party to, the
10 contravention by a person of such a
provision.
(2) The Supreme Court may grant the injunction
sought--
(a) if--
15 (i) the Court is satisfied that the
person is engaging in or has been
engaging in conduct of that kind;
and
(ii) it appears to the Court that, in the
20 event that the injunction is not
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
25 if the first-mentioned person
engages in conduct of that kind; or
(b) if the Court determines it to be
appropriate, by consent of all the
parties to the proceedings, whether or
30 not the person has engaged in, or is
likely to engage in conduct of that kind.
(3) An injunction under this section may be
granted--
(a) for a specified period; and
35 (b) on specified terms and conditions.
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151B. Interim cease trading injunctions
The Supreme Court may grant an interim
injunction pending determination of an
application under section 151A, if, in the
5 opinion of the Court it is desirable to do so
and it appears to the Court that--
(a) the person intends to engage in or
continue to engage in conduct of a kind
referred to in paragraphs (a) to (e) of
10 section 151A(1); and
(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.
15 151C. Power to rescind or vary cease trading
injunctions
The Supreme Court may rescind or vary an
injunction granted by it under section 151A
or an interim injunction granted by it under
20 section 151B.".
60. Defences
In section 155(1) of the Fair Trading Act 1999--
(a) for paragraph (a) substitute--
"(a) that the contravention in respect of
25 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";
30 (b) paragraph (b) is repealed.
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61. Orders against persons found to have contravened
this Act
(1) For section 158(1) of the Fair Trading Act 1999
substitute--
5 '(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--
10 (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
15 (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--
20 (a) in paragraph (g) for "person; or" substitute
"person.";
(b) paragraph (h) is repealed.
(3) After section 158(3) of the Fair Trading Act
1999 insert--
25 "(4) The court may also make an order under this
section against a person involved in a
contravention of a provision of this Act.".
62. Actions for damages
After section 159(1) of the Fair Trading Act
30 1999 insert--
"(1A) Except in accordance with section 107(3), a
person may not recover in the Tribunal an
amount for any personal injury suffered.".
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63. New Division 3 inserted in Part 11
After Division 2 of Part 11 of the Fair Trading
Act 1999 insert--
'Division 3--Infringement Notices
5 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
offence specified by the regulations as an
10 offence in respect of which an infringement
notice may be issued.
(2) In this Division "authorised officer"
means--
(a) an inspector;
15 (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
person--
20 (a) by delivering it personally to the
person; or
(b) by sending it by post addressed to the
person at the person's last known place
of residence or business.
25 160B. Form of notice
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
30 regulations that creates the offence;
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(c) the date, time and place of the alleged
offence;
(d) the nature and a brief description of the
alleged offence;
5 (e) the infringement penalty for the alleged
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
10 after the date on which the notice is
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
15 time specified in the notice, the matter
will not be brought before the
Magistrates' Court unless the notice is
withdrawn within 28 days after the date
on which it was served;
20 (i) that the person is entitled to disregard
the notice and defend any proceedings
in respect of the alleged offence in the
Magistrates' Court;
(j) any other prescribed particulars.
25 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
the infringement notice if--
30 (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
which the infringement penalty relates;
35 and
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(b) the infringement notice has not been
withdrawn.
160D. Withdrawal of notice
(1) A member of the police force may withdraw
5 an infringement notice issued by a member
of the police force under this Part within
28 days after it was served.
(2) The Director may withdraw an infringement
notice issued by any other authorised officer
10 under this Part within 28 days after it was
served.
(3) The withdrawal of an infringement notice is
to be effected by serving a withdrawal notice
on the person on whom the infringement
15 notice was served.
(4) If the penalty sought in the infringement
notice has been paid before the notice is
withdrawn, the amount of the penalty must
be refunded on the notice being withdrawn,
20 and the Consolidated Fund is, to the
necessary extent, appropriated accordingly.
(5) Proceedings for the offence in respect of
which the infringement notice has been
served may still be taken or continued
25 despite the withdrawal of the notice.
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
30 accepted in accordance with section 160C,
then--
(a) the person on whom the notice was
served has expiated the offence by that
payment; and
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(b) no proceedings may be taken against
that person in respect of that offence;
and
(c) no conviction is to be taken to have
5 been recorded against that person for
the offence.
160F. Application of penalty
(1) An infringement penalty paid under this
Division must be applied in the same way as
10 a fine paid under an order of a court made on
an offender being convicted or found guilty
of the offence to which the infringement
penalty relates.
(2) The payment of an infringement penalty
15 under this Division is not and must not be
taken to be--
(a) an admission of guilt in relation to the
offence; or
(b) an admission of liability for the purpose
20 of any civil claim or proceeding arising
out of the same occurrence, and the
payment does not in any way affect or
prejudice any such claim or proceeding.
(3) The payment of an infringement penalty
25 under this Division must not be referred to in
any report provided to a court for the
purpose of determining sentence for any
offence.
160G. Prosecution after service of infringement
30 notice
A charge may be filed in respect of an
offence to which an infringement notice
relates if--
(a) the infringement penalty has not been
35 paid within the time for payment
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specified in the notice or in accordance
with section 160C; or
(b) the notice is withdrawn.
160H. Enforcement of infringement penalty
5 Payment of the infringement penalty may be
enforced in accordance with Part 2 of
Schedule 7 to the Magistrates' Court Act
1989 if--
(a) the infringement notice is an
10 infringement notice within the meaning
of Schedule 7 to that Act; and
(b) the infringement penalty has not been
paid within the time specified in the
notice or in accordance with
15 section 160C; and
(c) the notice has not been withdrawn; and
(d) a charge has not been filed in
accordance with section 160G.'.
64. New section 161A inserted
20 After section 161 of the Fair Trading Act 1999
insert--
'161A. Bills and receipts
(1) Within 30 days after receipt of a bill or
account from a supplier for services
25 supplied, a purchaser to whom the services
were supplied may request an itemised bill.
(2) A supplier must provide an itemised bill
within 7 days of receiving a request under
sub-section (1).
30 Penalty: 60 penalty units, in the case of a
natural person.
120 penalty units, in the case of a
body corporate.
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(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.
5 120 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),
10 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
15 body corporate.
(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
20 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
25 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
30 Legal Practice Act 1996 applies.
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(8) In this section--
"GST" has the same meaning as in the
A New Tax System (Goods and
Services Tax) Act 1999 of the
5 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
10 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
15 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
20 (Goods and Services Tax) Act 1999 of the
Commonwealth, a cash-register receipt, a credit
or debit card statement, a hand-written receipt,
a lay-by agreement and a confirmation or
receipt number provided in a telephone or
25 internet transaction.'.
65. New section 162A inserted
After section 162 of the Fair Trading Act 1999
insert--
"162A. Public warning statements
30 If satisfied it is in the public interest to do so,
the Minister or the Director may publish a
public statement or issue a public warning,
identifying and giving information about the
following--
35 (a) goods that are unsatisfactory and the
persons who supply those goods;
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(b) services supplied in an unsatisfactory
manner and persons who supply those
services;
(c) unfair business practices and persons
5 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
10 services from suppliers.".
66. New section 163 substituted
For section 163 of the Fair Trading Act 1999
substitute--
'163. Consumer documents to be clear
15 (1) In this section "consumer document"
means--
(a) a consumer contract; or
(b) a statement, notice or other document
required by this Act to comply with this
20 section.
(2) A consumer document does not include a
contract to which the Consumer Credit
(Victoria) Act 1995 applies;
(3) A consumer document--
25 (a) must be easily legible; and
(b) to the extent that it is printed or typed,
must use a minimum 10 point font; and
(c) must be clearly expressed.
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(4) If the Tribunal is satisfied, on application by
the Director, that any provision of a
consumer contract does not comply with the
requirements of this section, the Tribunal
5 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
this section.
10 Penalty: 60 penalty units, in the case of a
natural person.
120 penalty units, in the case of a
body corporate.'.
67. Supreme Court--limitation of jurisdiction
15 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
1975.".
20 68. Amendment of regulation-making powers
Before section 165(1)(a) of the Fair Trading Act
1999 insert--
"(aa) prescribing for the purposes of section 32N
the form of and the particulars to be included
25 in a contractual term referred to in that
section;
(ab) prescribing terms which are unfair terms for
the purposes of Part 2B;".
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69. New Schedule 2 substituted
For Schedule 2 to the Fair Trading Act 1999
substitute--
'SCHEDULE 2
5 CONTACT SALES AGREEMENTS
PART 1--NOTICE TO PURCHASER
The following notice is to appear on the front page of a
Contact Sales agreement and must be signed by the
purchaser:
10 "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.
IMPORTANT DETAILS ABOUT YOUR RIGHTS ARE
15 SET OUT IN THE CANCELLATION NOTICE
PROVIDED WITH THIS AGREEMENT.
Signed by the Purchaser: _____________________
Date: _________________________"
PART 2--CANCELLATION NOTICE
20 A Cancellation Notice in the following form must
accompany a Contact Sales Agreement:
'CANCELLATION NOTICE
(supplier or supplier's agent details and date and details of
agreement must be completed by supplier or supplier's
25 agent)
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TO THE SUPPLIER or SUPPLIER'S AGENT:
Supplier or supplier's agent's name:
Supplier or supplier's agent's address:
Supplier or supplier's agent's facsimile number (if any):
5 Date of Agreement:
Details of goods or services to be supplied under
Agreement:
I WISH TO CANCEL THIS AGREEMENT.
If this is an agreement for the supply of goods:
10 *I RETURN THE GOODS WITH THIS NOTICE or
*THE GOODS CAN BE COLLECTED FROM THE
FOLLOWING ADDRESS:
(*Cross out whichever does not apply)
Signed by the Purchaser: ____________
15 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
appearing on any other part of the notice)
20 "NOTICE TO THE PURCHASER WANTING TO
CANCEL THIS AGREEMENT
IF YOU WISH TO CANCEL THIS AGREEMENT
PLEASE SIGN AND DATE THIS NOTICE OF
CANCELLATION AND LEAVE THE NOTICE AT THE
25 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.
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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
5 PRICE FOR GOODS WHICH CANNOT BE RETURNED
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
10 NEED FOR THE GOODS.
THE SUPPLIER OR THE SUPPLIER'S AGENT MUST
NOT REQUIRE YOU TO PAY FOR SERVICES
PROVIDED TO YOU DURING THE COOLING-OFF
PERIOD.
15 IF YOU CANCEL THIS AGREEMENT DURING THE
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
20 AMOUNT FOR THE SERVICES YOU RECEIVED
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
25 TRADING ACT 1999 IN RELATION TO THIS
AGREEMENT, FOR EXAMPLE, BY MAKING A FALSE
OR MISLEADING STATEMENT TO YOU ABOUT
YOUR NEED FOR THE SERVICES.".'.
70. Amendment to Schedule 3
30 After clause 7 of Schedule 3 to the Fair Trading
Act 1999 insert--
"8. Superseded references
On the commencement of section 70 of the
Fair Trading (Amendment) Act 2003, in any
35 Act (other than this Act), or in any instrument
made under any Act or in any other document
of any kind--
(a) a reference to the Director of Fair
Trading or the Director of Consumer and
40 Business Affairs is deemed to be a
reference to the Director of Consumer
Affairs Victoria; and
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(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
5 reference to Consumer Affairs Victoria
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
10 against or in relation to the Director of
Consumer and Business Affairs or the Director
of Fair Trading and existing immediately before
the commencement of section 70 of the Fair
Trading (Amendment) Act 2003, may be
15 continued and completed on and after that
commencement by or against or in relation to
the Director of Consumer Affairs Victoria.
(2) If, immediately before the commencement of
section 70 of the Fair Trading (Amendment)
20 Act 2003, proceedings to which the Director of
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
25 substituted for the Director of Consumer and
Business Affairs as a party to the proceedings
and has the same rights and obligations in the
proceedings as had the Director of Consumer
and Business Affairs.
30 10. Validation of ban orders
(1) An interim ban order or a permanent ban order
that was made before the commencement of
section 70 of the Fair Trading (Amendment)
Act 2003 is valid and effective, and is deemed
35 always to have been valid and effective, despite
any failure to comply with the requirements of
section 32 of the Interpretation of Legislation
Act 1984 or section 40(2)(b) of the Fair
Trading Act 1999.
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(2) An interim order under section 57C of the
Consumer Affairs Act 1972 (as in force before
its repeal) is deemed to have been and always
to have been valid and effective, despite any
5 failure to comply with the requirements of
section 32 of the Interpretation of Legislation
Act 1984 or section 57C(1)(b) of the
Consumer Affairs Act 1972.
(3) An order under section 57D of the Consumer
10 Affairs Act 1972 (as in force before its repeal)
is deemed to have been and always to have
been valid and effective, despite any failure to
comply with the requirements of section 32 of
the Interpretation of Legislation Act 1984 or
15 section 57D(1)(b) of the Consumer Affairs
Act 1972.".
71. Further amendment to Schedule 3
At the end of Schedule 3 to the Fair Trading Act
1999 insert--
20 "11. Continuation of existing small claims
(1) Despite the repeal of the Small Claims Act
1973 by section 72 of the Fair Trading
(Amendment) Act 2003, the Small Claims
Act 1973 as in force immediately before its
25 repeal continues to apply to any proceeding
under that Act existing immediately before the
commencement of that section in respect of a
small claim.
(2) Until 31 July 2004, any application made to the
30 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
in respect of a small claim under Part 9 of the
35 Fair Trading Act 1999.".
__________________
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PART 3--REPEALS AND AMENDMENTS
72. Repeal of the Small Claims Act 1973
See: The Small Claims Act 1973 is repealed.
Act No.
8486/1973.
Reprint No. 5
as at
1 July 1998
and
amending
Act Nos
101/1998 and
17/1999.
LawToday:
www.dms.
dpc.vic.
gov.au
See: 73. Amendment to section 97A of the Goods Act 1958
Act No.
6265/1958.
5 For section 97A(2)(c) of the Goods Act 1958
Reprint No. 9
substitute--
as at
8 October
"(c) the term--
1998
and
amending (i) contains the prescribed particulars (if
Act Nos
any) and is in the prescribed form (if
27/2001,
10 44/2001 and any); or
49/2002.
LawToday:
(ii) is specified in, or is of a class of term
www.dms.
specified in, an Order made under
dpc.vic.
gov.au
section 97B; and".
74. New section 97B inserted into the Goods Act 1958
15 After section 97A of the Goods Act 1958
insert--
"97B. Exemption from waiver form requirement
(1) The Governor in Council, on the
recommendation of the Minister, may, by
20 order published in the Government Gazette,
provide that a specified term of a sale of
recreational services, or a class of such term,
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does not need to comply with the
requirements of section 97A(2)(c)(i) or (e).
(2) The Governor in Council may make an
Order under this section subject to any
5 conditions the Governor in Council thinks fit
and specifies in the Order.
(3) An Order under this section has effect
according to its terms.
(4) The Governor in Council, on the
10 recommendation of the Minister, may, by
Order published in the Government Gazette,
vary or revoke an Order made under this
section.
(5) An Order made under this section ceases to
15 have effect on--
(a) the expiry of the anniversary of the date
the Order was published in the
Government Gazette; or
(b) if an earlier expiry date is specified in
20 the Order, that earlier date.".
75. Repeal of Part IV of the Goods Act 1958
Part IV of the Goods Act 1958 is repealed.
76. New Part VI inserted in the Goods Act 1958
After Part V of the Goods Act 1958 insert--
25 'PART VI--TRANSITIONAL AND SAVING
122. Contracts to which Part IV of the Goods
Act 1958 will still apply
(1) Despite the repeal of Part IV by section 75 of
the Fair Trading (Amendment) Act 2003,
30 that Part, as in force immediately before its
repeal, continues to apply to a sale of goods
or services or lease of goods entered into
before the commencement of that section.
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s. 77
(2) In this section "sale" and "lease" have the
same meanings as they had in Part IV
immediately before its repeal.'.
77. New Part 3 inserted in the Business Licensing
5 Authority Act 1998
See: After Part 2 of the Business Licensing Authority
Act No.
Act 1998 insert--
49/1998
and
amending
'PART 3--LICENCE SUSPENSION
Act Nos
46/1998 and
17/1999. 20. Definitions
LawToday:
www.dms.
10 In this Part--
dpc.vic.
gov.au
"licence" means--
(a) a licence issued or granted
under--
(i) the Estate Agents Act 1980;
15 or
(ii) the Motor Car Traders Act
1986; or
(iii) the Prostitution Control
Act 1994; or
20 (iv) the Travel Agents Act 1986;
or
(b) a right to act as an agent's
representative within the meaning
of the Estate Agents Act 1980; or
25 (c) a 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; or
30 (d) an approval under Division 5 of
Part 3 of the Prostitution Control
Act 1994; or
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(e) a registration granted under Part 4
of the Consumer Credit
(Victoria) Act 1995; or
(f) a right to engage in finance
5 broking within the meaning of
Part 4A of the Consumer Credit
(Victoria) Act 1995; or
(g) a right to act as an introduction
agent within the meaning of the
10 Introduction Agents Act 1997;
or
(h) a registration or endorsement of
registration under the Second-
Hand Dealers and Pawnbrokers
15 Act 1989;
"licence suspension period" in relation to a
licence, means the period--
(a) commencing on the date of
service of the notice in relation to
20 the licence under section 21; and
(b) ending on--
(i) the lapsing of the suspension
of the licence under section
23; or
25 (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
30 licence.
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s. 77
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
5 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--
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 Authority, 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 22. 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 Part.
(2) If a notice is issued under this Part
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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Part 3--Repeals and Amendments
s. 77
(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 Part
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 Part
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 Part
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 Part
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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s. 77
(7) If a notice is issued under this Part
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 Part
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 Part
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.
23. Lapsing or continuation of suspension
(1) A suspension under this Part lapses if within
25 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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s. 77
(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 Authority must not
serve another notice on the licensee under
15 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
20 other 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 24 extending that
period, that extended period.
24. Extension of period
30 (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
35 the end of the period of the extension, to
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Act No.
Part 3--Repeals and Amendments
s. 78
extend the period within which an
application must be made or proceedings
commenced for the purposes of section 23(1)
and (2).
5 (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
10 commenced; and
(b) may make an order extending the
period if in all the circumstances it
considers it just and convenient to do
so.
15 (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
20 person.
25. Right of review
A licensee may apply to the Tribunal for a
review of the decision to issue a notice under
this Part.'.
25 78. Amendment to the Interpretation of Legislation Act
1984
See:
In section 32(4)(a) of the Interpretation of Act No.
Legislation Act 1984, for "must cause--" insert 10096/1984.
Reprint No. 7
"must, if the subordinate instrument is itself as at
30 required to be laid before each House of the 19 June 2002.
LawToday:
Parliament, cause--". www.dms.
dpc.vic.
gov.au
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Act No.
Part 3--Repeals and Amendments
s. 79
79. New Part 7AA inserted in Schedule 1 to the Victorian
Civil and Administrative Tribunal Act 1998
See: After Part 7 of Schedule 1 to the Victorian Civil
Act No.
and Administrative Tribunal Act 1998 insert--
53/1998.
Reprint No. 2
as at
5 'PART 7AA--FAIR TRADING ACT 1999
15 July 2001
and
amending 28AA. What is a "small claim"?
Act Nos
In this Part "small claim" has the meaning that
98/2000;
2/2001, it has in Part 9 of the Fair Trading Act 1999.
68/2001,
96/2001, 28BB. Representation
36/2002,
10 41/2002 and (1) A party to a proceeding relating to a small
45/2002. claim may be represented by a professional
LawToday:
advocate only if--
www.dms.
dpc.vic.
(a) the Tribunal is satisfied that no other
gov.au
party to the proceeding will be unfairly
15 disadvantaged if the representation is
allowed; and
(b) either--
(i) all parties to the proceeding agree;
or
20 (ii) the Tribunal directs that the
representation be allowed.
(2) Section 62(1)(b) does not apply to a proceeding
relating to a small claim.
28CC. Withdrawal of application
25 Despite section 74(1), a person who lodges an
application relating to a small claim may
withdraw that application without the leave of
the Tribunal.
28DD. Tribunal cannot extend time for commencing
30 proceedings
Section 126(1) does not apply to a proceeding
relating to a small claim.
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Part 3--Repeals and Amendments
s. 79
28EE. 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
5 party may object to the mediator constituting
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
10 commencement of the hearing.
28FF. 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
15 a compulsory conference in the proceeding, or
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
20 member may continue to constitute the Tribunal
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
25 the member against whom the objection was
made.
(3) Section 86(3) does not apply to a proceeding
relating to a small claim.
28GG. Costs and security for costs
30 (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
such a proceeding.
(2) Section 79 does not apply to a review of a
35 determination under section 120 in respect of a
proceeding relating to a small claim.
28HH. Reasons must be requested at time of decision
Despite anything to the contrary in section
117(2), the Tribunal is not obliged to give a
40 person written reasons for an order made in a
proceeding relating to a small claim unless the
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Part 3--Repeals and Amendments
s. 80
person has made a request to the Tribunal for
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
5 in the proceeding.'.
80. Repeal of Part 18 of Schedule 1 to the Victorian Civil
and Administrative Tribunal Act 1998
Part 18 of Schedule 1 to the Victorian Civil and
Administrative Tribunal Act 1998 is repealed.
10 81. Amendments to the Administrative Law Act 1978
See: (1) In section 4(3) of the Administrative Law Act
Act No.
1978, for "under the Small Claims Act 1973"
9234/1978.
Reprint No. 4 substitute "under Part 9 of the Fair Trading Act
as at
1999 in relation to a small claim".
1 October
1998
15 (2) At the end of section 15 of the Administrative
and
amending
Law Act 1978 insert--
Act Nos
52/1998 (as
"(2) It is the intention of section 4(3), as amended
amended by
by the Fair Trading (Amendment) Act
101/1998) and
74/2000.
2003, to alter or vary section 85 of the
LawToday:
20 Constitution Act 1975.".
www.dms.
dpc.vic.
gov.au
82. Amendments to the Building Act 1993
See: (1) In sections 137B(4) and 137B(5) of the Building
Act No.
Act 1993, for "Consumer and Business Affairs"
126/1993.
Reprint No. 4 substitute "Consumer Affairs Victoria".
as at
8 June 2001
25 (2) In the heading to section 196A of the Building
and
Act 1993, for "Consumer and Business Affairs"
amending
Act Nos
substitute "Consumer Affairs Victoria".
26/2001,
30/2001,
(3) In section 196A of the Building Act 1993, for
32/2001,
"Consumer and Business Affairs" substitute
68/2001,
11/2002,
30 "Consumer Affairs Victoria".
15/2002 and
36/2002.
LawToday:
www.dms.
dpc.vic.
gov.au
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Fair Trading (Amendment) Act 2003
Act No.
Part 3--Repeals and Amendments
s. 83
83. Amendment to the Co-operative Housing Societies Act
1958
See:
In section 72B(2)(c)(iv) of the Co-operative Act No.
Housing Societies Act 1958, for "Consumer and 6226/1958.
5 Reprint No. 8
Business Affairs" substitute "Consumer Affairs as at
Victoria". 11 October
2001.
LawToday:
www.dms.
dpc.vic.
gov.au
84. Amendments to the Domestic Building Contracts Act
1995
See:
(1) For section 43D(2) of the Domestic Building Act No.
10 Contracts Act 1995 substitute-- 91/1995.
Reprint No. 5
"(2) The Director must not, under sub-section (1), as at
1 July 2002.
institute or defend proceedings on behalf of a LawToday:
building owner unless that building owner www.dms.
dpc.vic.
has given consent in writing. gov.au
15 (3) After consent has been given under sub-
section (2), the Director may institute or
continue with a proceeding or defence on
behalf of a building owner even if the
building owner revokes the consent.".
20 (2) In section 43E(1) of the Domestic Building
Contracts Act 1995--
(a) in paragraph (c) for "an amount" (where first
occurring) substitute "subject to sub-
sections (1A) and (1B), an amount";
25 (b) in paragraph (e) for "the building owner"
substitute "subject to sub-section (1A), the
building owner".
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Act No.
Part 3--Repeals and Amendments
s. 84
(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.".
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Fair Trading (Amendment) Act 2003
Act No.
Part 3--Repeals and Amendments
s. 85
85. Amendments to the Electricity Industry Act 2000
See:
After section 35(7) of the Electricity Industry Act No.
Act 2000 insert-- 68/2000.
Reprint No. 1
"(7A) If an agreement for the sale and supply of as at
13 June 2002.
5 electricity is amended as a result of a and
variation under sub-section (3) or (4) and the amending
Act No.
agreement is a contact sales agreement 10/2002.
within the meaning of the Fair Trading Act LawToday:
www.dms.
1999, section 61(1)(g) of that Act does not dpc.vic.
10 apply to that amendment.". gov.au
86. Amendment to the Fundraising Appeals Act 1998
See:
In section 3 of the Fundraising Appeals Act Act No.
1998, in the definition of "Director", for "of 78/1998.
Reprint No. 1
Consumer and Business Affairs" substitute as at
15 "within the meaning of the Fair Trading Act 1 January
2002
1999". and
amending
Act Nos
23/2002.
LawToday:
www.dms.
dpc.vic.
gov.au
87. Amendments to the Gas Industry Act 2001
See:
After section 42(7) of the Gas Industry Act 2001 Act No.
insert-- 31/2001.
Reprint No. 1
20 "(7A) If an agreement for the sale and supply of as at
2 July 2002.
gas is amended as a result of a variation LawToday:
under sub-section (3) or (4) and the www.dms.
dpc.vic.
agreement is a contact sales agreement gov.au
within the meaning of the Fair Trading Act
25 1999, section 61(1)(g) of that Act does not
apply to that amendment.".
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Fair Trading (Amendment) Act 2003
Act No.
Part 3--Repeals and Amendments
s. 88
88. Amendments to the Partnership Act 1958
See: (1) In section 49(1) of the Partnership Act 1958--
Act No.
6330/1958.
(a) the definition of "Commissioner" is
Reprint No. 5
repealed;
as at
4 February
5 (b) insert the following definition--
1999
and
amending ' "Director" means Director within the
Act Nos
meaning of the Fair Trading Act
35/2000,
27/2001, 1999;'.
44/2001 and
9/2002.
(2) In sections 49(2), 54(1), 54(2), 55(1), 55(2), 55(3),
LawToday:
10 56(1), 56(3), 56(4), 57(1), 57(2), 57(3), 57(4),
www.dms.
dpc.vic.
57(5), 58(1), 58(2), 58(3), 72(1), 72(2), 72(3), 78,
gov.au
79(1), 79(2), 79A(1), 79A(2), 79C(1), 79C(2),
79C(3), 79D(1), 79D(3), 79D(4), 79D(5), 79D(6),
79E, 79F(1), 79F(2), 80(2), of the Partnership
15 Act 1958, for "Commissioner" (wherever
occurring) substitute "Director".
(3) Insert the following heading to section 79F of the
Partnership Act 1958--
"Power of Director to refuse to register or
20 reject documents".
89. New section 79G inserted in the Partnership Act 1958
After section 79F of the Partnership Act 1958
insert--
"79G. Actions commenced by Commissioner for
25 Corporate Affairs
(1) Any act, matter or thing of a continuing
nature commenced under this Act or
regulations made under this Act, by or
against or in relation to the Commissioner
30 for Corporate Affairs and existing
immediately before the commencement of
section 89 of the Fair Trading
(Amendment) Act 2003, may be continued
and completed on and after that
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Fair Trading (Amendment) Act 2003
Act No.
Part 3--Repeals and Amendments
s. 90
commencement by or against or in relation to
the Director of Consumer Affairs Victoria.
(2) If, immediately before the commencement of
section 89 of the Fair Trading
5 (Amendment) Act 2003, proceedings under
this Act to which the Commissioner for
Corporate Affairs was a party were pending
or existing in any court or tribunal, then, on
and after that commencement, the Director
10 of Consumer Affairs Victoria is substituted
for the Commissioner for Corporate Affairs
as a party to the proceedings and has the
same rights and obligations in the
proceedings as had the Commissioner for
15 Corporate Affairs.".
90. Amendment to the Petroleum Retail Selling Sites Act
1981
See:
In section 4(9) of the Petroleum Retail Selling Act No.
Sites Act 1981, for "Consumer and Business 9704/1981
20 and
Affairs" substitute "Consumer Affairs Victoria". amending
Act Nos
17/1999 and
35/2000.
LawToday:
www.dms.
dpc.vic.
gov.au
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Fair Trading (Amendment) Act 2003
Act No.
Part 3--Repeals and Amendments
s. 91
91. Amendment to the Residential Tenancies Act 1997
See: In Part 12 of the Residential Tenancies Act 1997,
Act No.
in the heading to Division 1, for "Consumer and
109/1997.
Reprint No. 2 Business Affairs" substitute "Consumer
as at
5 Affairs Victoria".
13 January
2000
and
amending
Act Nos
28/2000,
35/2000,
74/2000,
11/2001,
27/2001,
11/2002
and 45/2002.
LawToday:
www.dms.
dpc.vic.
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Fair Trading (Amendment) Act 2003
Act No.
Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
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