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Ley de 1986 de Prácticas Leales de Comercio (actualizada el 1 de mayo de 2011), Nueva Zelandia

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Detalles Detalles Año de versión 2011 Fechas Entrada en vigor: 1 de marzo de 1987 Adoptado/a: 17 de diciembre de 1986 Tipo de texto Legislación relacionada con la PI Materia Marcas, Competencia, Observancia de las leyes de PI y leyes conexas Notas La Ley de Prácticas Leales de Comercio prohíbe determinadas conductas en el comercio, prevé la difusión de información sobre el consumidor relacionada con el suministro de bienes y servicios, y promueve la seguridad de los productos en Nueva Zelandia.

La parte I de la Ley se ocupa de las conductas que inducen a error o engaño, de las representaciones falsas y de las prácticas desleales.
Para las disposiciones específicas relativas a las prácticas desleales de comercio y las marcas, véase la Parte 1, secciones 9, 10, 13, 16 y 26.

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Textos principales Textos principales Inglés Fair Trading Act 1986 (reprint as at 1 May 2011)        

Reprint as at 1 May 2011

Fair Trading Act 1986
Public Act 1986 No 121
Date of assent 17 December 1986
Commencement see section 1(2)
Contents
Page
Title 4
1 Short Title and commencement 4
2 Interpretation 4
3 Application of Act to conduct outside New Zealand 8
4 Application of Act to the Crown 9
5 Application of Act to Crown corporations 9
5A No liability under Act if not liable under Securities Act 9
1978 or Securities Markets Act 1988
5B Act does not apply to certain conduct regulated by 10
Takeovers Code
6 Functions of Commission in relation to dissemination of 10
information
7 Money to be appropriated by Parliament for purposes of 10
this Act[Repealed]
8 Annual report[Repealed] 11
Note

Changes authorised by section 17C of the Acts and Regulations Publication Act 1989 have been made in this reprint.

Ageneraloutlineofthesechangesissetoutinthenotesattheendofthisreprint,togetherwith other explanatory material about this reprint.

This Act is administered by the Ministry of Consumer Affairs.

Part 1 Misleading and deceptive conduct, false representations, and unfair practices

Misleading and deceptive conduct

9 Misleading and deceptive conduct generally 11 10 Misleading conduct in relation to goods 11 11 Misleading conduct in relation to services 11 12 Misleading conduct in relation to employment 11

False representations

13 False or misleading representations 12 14 False representations and other misleading conduct in 13 relation to land 15 Limited application of sections 9 to 14 to news media 14 16 Certain conduct in relation to trade marks prohibited 15

Unfair practices

17 Offering gifts and prizes 16 18 Trading stamp schemes prohibited[Repealed] 17 19 Bait advertising 17 20 Referral selling 18 21 Demanding or accepting payment without intending to 18 supply as ordered 22 Misleading representations about certain business 19 activities 23 Harassment and coercion 19 24 Pyramid selling schemes 19 25 Provisions of this Part not limited by reference to other 20 provisions of this Part 26 Importation of goods bearing false trade description 21

Part 2 Consumer information

27 Consumer information standards 21 28 Compliance with consumer information standards 23

Part 3 Product safety

29 Product safety standards 24 30 Compliance with product safety standards 25 31 Unsafe goods 26 32 Compulsory product recall 26 33 Importation of certain goods prohibited 27

Part 4 Safety of services

34 Meaning of services 28 35 Safety standards in respect of services 28 36 Compliance with services safety standards 29

Part 5 Enforcement and remedies

Jurisdiction of courts

37 Jurisdiction of High Court 29 38 Jurisdiction of District Courts 30 39 Jurisdiction of Disputes Tribunals 30

Offences

40 Contraventions of provisions of Part 1, Part 2, Part 3, and 30 Part 4 an offence 40A Additional penalty for contravention of section 24 31 involving commercial gain

Civil proceedings

41 Injunctions may be granted by court for contravention of 32 Part 1, Part 2, Part 3, and Part 4 42 Order to disclose information or publish advertisement 33 43 Other orders 34 44 Defences 38 45 Conduct by servants or agents 40 46 Finding in proceedings to be evidence 41

Part 6 Miscellaneous provisions

47 Power to search 41 47A Powers conferred by warrant 42 47B Warrant to be produced 43 47C Other duties of person who executes a warrant 43 47D Duty to assist 44 47E Power to inspect documents and goods 45 47F Offence 45 47G Commission may require person to supply information 45 or documents 47H Notices 46 47I Service of notices 46 47J Offence to contravene section 47G 47 48 Proceedings privileged 48

Fair Trading Act 1986 Reprinted as at1 May 2011
48A Sharing of information and documents with Financial Markets Authority or Takeovers Panel 49 49 Repeals and consequential amendments 49 50 Saving of other laws 50 51 Application of Act to goods that are, or may be, exported to China 50 Schedule 1 52 Enactment amended [Repealed] Schedule 2 53 Enactments repealed Schedule 3 55 Orders and notices revoked

An Act to prohibit certain conduct and practices in trade, to provide for the disclosure of consumer information relating to the supply of goods and services and to promote product safety and also to repeal the Consumer Information Act 1969 and certain other enactments

1 Short Title and commencement

(1)
This Act may be cited as the Fair Trading Act 1986.
(2)
Except as provided in section 49(3), this Act shall come into force on 1 March 1987.

2 Interpretation

(1) In this Act, unless the context otherwise requires,acquire,

(a)
inrelationtogoods,includesobtainbywayofgift,purchase, or exchange; and also includes take on lease, hire, or hire purchase:
(b)
in relation to services, includes accept:
(c)
in relation to interests in land, includes obtain by way ofgift,purchase,exchange,leaseorlicenceand acquisition has a corresponding meaning

advertisementmeansanyformofcommunicationmadetothe public or a section of the public for the purpose of promoting

the supply of goods or services or the sale or granting of an interest in land business means any undertaking

(a)
thatiscarriedonwhetherforgainorrewardornot;or
(b)
in the course of which
(i)
goods or services are acquired or supplied; or
(ii)
any interest in land is acquired or disposed of

whether free of charge or not Commission means the Commerce Commission established by section 8 of the Commerce Act 1986

court means the High Court of New Zealand credit instrument means any agreement (whether in writing

or not) acknowledging an obligation to pay a sum or sums of money on demand or at any future time or times document means a document in any form whether signed or

initialled or otherwise authenticated by its maker or not; and includes

(a)
any writing on any material:
(b)
anyinformationrecordedorstoredbymeansofanytape recorder, computer, or other device; and any material subsequently derived from information so recorded or stored:
(c)
any label, marking, or other writing that identifies or describes any thing of which it forms part, or to which it is attached by any means:
(d)
any book, map, plan, graph, or drawing:
(e)
any photograph, film, negative, tape, or other device in which 1 or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced

goods

(a)
means personal property of every kind (whether tangible or intangible); and
(b)
includes
(i)
ships, aircraft, and vehicles:
(ii)
animals, including fish:
(iii) minerals, trees, and crops, whether on, under, or attached to land or not: (iv) gas and electricity:
(v)
to avoid doubt, water and computer software local authority includes every local authority andevery pub
licbodyorotherauthoritycreatedbyorpursuanttoanypublic Act or local Act Minister means the Minister of Consumer Affairs official standard means
(a)
aNewZealandStandardwithinthemeaningof section 2 of the Standards Act 1988; or
(b)
astandardspecificationprescribedbyabody,organisation, or association having or performing similar functionstothoseoftheStandardsCouncilwithinthemean ing of section 2 of the Standards Act 1988

person includes a local authority, and any association of per

sons whether incorporated or not place includesanypremises,building,aircraft,ship,carriage, vehicle, box, or receptacle

priceincludesvaluableconsiderationinanyform,whetherdirect or indirect; and includes any consideration that in effect relates to the acquisition or supply of goods or services or the acquisition or disposition of any interest in land, although ostensibly relating to any other matter or thing

servicesincludesanyrights(includingrightsinrelationto,and interests in, real or personal property), benefits, privileges, or facilities that are or are to be provided, granted, or conferred and, without limiting the generality of the foregoing, also includes the rights, benefits, privileges, or facilities that are or are tobeprovided, granted, orconferred under any ofthefollowing classes of contract:

(a)
a contract for, or in relation to,
(i)
the performance of work (including work of a professionalnature),whetherwithorwithoutthe supply of goods; or
(ii)
theprovisionof,ortheuseorenjoymentoffacilitiesfor,accommodation,amusement,thecareof persons or animals or things, entertainment, instruction, parking, or recreation; or
(iii) theconferringofrights,benefits,orprivilegesfor which remuneration is payable in the form of a royalty, tribute, levy, or similar exaction: (iv) to avoid doubt, the supply of electricity, gas, telecommunications, or water, or the removal of waste water:
(b)
acontractofinsurance,includinglifeassurance,andlife reassurance:
(c)
a contract between a bank and a customer of the bank:
(d)
anycontractfor,orinrelationto,thelendingofmoney orgrantingofcredit,orthemakingofarrangementsfor thelendingofmoneyorgrantingofcredit,orthebuying ordiscounting of a creditinstrument,orthe acceptance of deposits;

but does not include rights or benefits in the form of the supply of goods or the performance of work under a contract of service

supply

(a)
in relation to goods, includes supply (or resupply) by wayofgift,sale,exchange,lease,hire,orhirepurchase; and
(b)
in relation to services, includes provide, grant, or con

fer;

and supply as a noun, supplied, and supplier have corres

ponding meanings

trade means any trade, business, industry, profession, occupation, activity of commerce, or undertaking relating to the supplyoracquisitionofgoodsorservicesortothedisposition or acquisition of any interest in land.

(2)
InthisAct,areferencetoengaginginconductshallbereadas a reference to doing or refusing to do anact, andincludes,
(a)
omitting to do an act; or
(b)
makingitknownthatanactwillor,asthecasemaybe, will not be done.
(3)
In this Act
(a)
areferencetotheacquisitionofgoodsincludesareference to the acquisition of property in, or rights in relation to, goods, in pursuance of a supply of the goods:
(b)
areferencetothesupplyoracquisitionofgoodsorservices includes a reference to agreeing to supply or acquire goods or services:
(c)
a reference to the supply or acquisition of goods includesareferencetothesupplyoracquisitionofgoods together with other property or services or both:
(d)
a reference to the supply or acquisition of services includes a reference to the supply or acquisition of services together with property or other services or both:
(e)
a reference to the resupply of goods acquired from a person includes a reference to
(i)
asupplyofgoodstoanotherpersoninanaltered form or condition; and
(ii)
a supply to another person of other goods in which the goods have been incorporated.

Section2(1)Commission : amended,on25January2005,bysection200ofthe Crown Entities Act 2004 (2004 No 115).

Section 2(1) goods : substituted, on 8 July 2003, by section 3(1) of the Fair Trading Amendment Act (No 2) 2003 (2003 No 34).

Section 2(1) officer of the Commission: repealed, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).

Section 2(1) official standard : inserted, on 28 July 1997, by section 2 of the Fair Trading Amendment Act 1997 (1997 No 43).

Section 2(1) place: inserted, on 1 July 1990, by section 2 of the Fair Trading Amendment Act 1990 (1990 No 42).

Section2(1) services paragraph (a)(iv): added, on 8 July 2003,by section 3(2) of the Fair Trading Amendment Act (No 2) 2003 (2003 No 34).

3 Application of Act to conduct outside New Zealand

(1)
This Act extends to the engaging in conduct outside New Zealand by any person resident or carrying on business in New Zealand to the extent that such conduct relates to the supply of goods or services, or the granting of interests in land, within New Zealand.
(2)
See section 51 for the application of this Act in relation to an international trade instrument. Section 3(2): added, on 1 October 2008, by section 5 of the Fair Trading

Amendment Act 2008 (2008 No 52).

4 Application of Act to the Crown

(1)
Subject to this section, this Act shall bind the Crown in so far as the Crown engages in trade.
(2)
The Crown shall not be liable to be prosecuted for an offence against this Act but in any case where it is alleged that the Crown has contravened any provision of this Act and that contravention constitutes an offence, the Commission or the persondirectlyaffectedbythecontraventionmayapplytothe court for a declaration that the Crown has contravened that provision; and, if the court is satisfied beyond a reasonable doubt that the Crown has contravened that provision, it may make a declaration accordingly. Compare: 1975 No 113 s 20B; 1979 No 140 s 12; Trade Practices Act 1974

s 2A (Aust)

5 Application of Act to Crown corporations

(1)
ThisActappliestoeverybodycorporatethatisaninstrument of the Crown in respect of the Government of New Zealand engaged in trade.
(2)
Notwithstanding any enactment or rule of law, proceedings under Part5 maybebroughtagainstabodycorporatereferred to in subsection (1). Compare: 1975 No 113 s 20A; 1979 No 140 s 11

5A No liability under Act if not liable under Securities Act 1978 or Securities Markets Act 1988

A court hearing a proceeding brought against a person under this Act must not find that person liable for conduct

(a)
thatisregulatedbythe SecuritiesAct1978 ifthatperson would not be liable for that conduct under that Act:
(b)
that is regulated by the Securities Markets Act 1988 if that person would not be liable for that conduct under that Act.

Section 5A: inserted, on 29 February 2008, by section 4 of the Fair Trading Amendment Act 2006 (2006 No 49).

s 5B Fair Trading Act 1986 Reprinted as at1 May 2011
5B Act does not apply to certain conduct regulated by
Takeovers Code
Nothing in this Act applies to conduct in relation to any trans
actionoreventregulatedbytheTakeoversCodethatisinforce
under the Takeovers Act 1993 or incidental or preliminary to
atransactionoreventthatisoris likelytoberegulatedbythat
code.
Section 5B: inserted, on 29 February 2008, by section 4 of the Fair Trading Amendment Act 2006 (2006 No 49).
6 Functions of Commission in relation to dissemination of
information
In addition to the functions conferred on the Commission by
this Act, the Commission shall
(a) make available or co-operate in making available
(i) for the guidance of persons engaged in trade,
andotherinterestedpersons,generalinformation
with respect to their rights and obligations under
this Act; and
(ii) for the guidance of consumers, general informa
tion with respect to the rights and obligations of
persons under this Act affecting the interests of
consumers; and
(b) undertake studies and publish reports and information
regarding matters affecting the interests of consumers;
and
(c) co-operate with and assist any association or body of
personsindevelopingandpromotingtheobservanceof
standards of conduct for the purpose of ensuring com
pliance with the provisions of this Act.
Compare: Trade Practices Act 1974 s 28(1)(a), (d), (e) (Aust)
7 Money to be appropriated by Parliament for purposes
of this Act
[Repealed]
Section 7: repealed, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).

Part 1 Misleading and deceptive conduct, false representations, and unfair practices

Misleading and deceptive conduct

9 Misleading and deceptive conduct generally Nopersonshall,intrade,engageinconductthatismisleading or deceptive or is likely to mislead or deceive. Compare: Trade Practices Act 1974 s 52 (Aust)

10 Misleading conduct in relation to goods No person shall, in trade, engage in conduct that is liable to mislead the public as to the nature, manufacturing process, characteristics, suitability for a purpose, or quantity of goods. Compare: Trade Practices Act 1974 s 55 (Aust)

11 Misleading conduct in relation to services No person shall, in trade, engage in conduct that is liable to mislead the public as to the nature, characteristics, suitability for a purpose, or quantity of services. Compare: Trade Practices Act 1974 s 55A (Aust)

12 Misleading conduct in relation to employment No person shall, in relation to employment that is, or is to be, ormaybeofferedbythatpersonoranyotherperson,engagein conductthatismisleadingordeceptive,orislikelytomislead or deceive, as to the availability, nature, terms or conditions, or any other matter relating to that employment. Compare: Trade Practices Act 1974 s 53B (Aust)

False representations

13 False or misleading representations

No person shall, in trade, in connection with the supply or possiblesupplyofgoodsorservicesorwiththepromotionby any means of the supply or use of goods or services,

(a)
makeafalseormisleadingrepresentationthatgoodsare of a particular kind, standard, quality, grade, quantity, composition, style, or model, or have had a particular history or particular previous use; or
(b)
make a false or misleading representation that services areofaparticularkind,standard,quality,orquantity,or thattheyaresuppliedbyanyparticularpersonorbyany person of a particular trade, qualification, or skill; or
(c)
makeafalseormisleadingrepresentationthataparticular person has agreed to acquire goods or services; or
(d)
makeafalseormisleadingrepresentationthatgoodsare new, or that they are reconditioned, or that they were manufactured,produced,processed,orreconditionedat a particular time; or
(e)
makeafalseormisleadingrepresentationthatgoodsor services have any sponsorship, approval, endorsement, performancecharacteristics,accessories,uses,orbenefits; or
(f)
makeafalseormisleadingrepresentationthataperson has any sponsorship, approval, endorsement, or affiliation; or
(g)
make a false or misleading representation with respect to the price of any goods or services; or
(h)
make a false or misleading representation concerning the need for any goods or services; or
(i)
make a false or misleading representation concerning theexistence,exclusion,oreffectofanycondition,warranty, guarantee, right, or remedy; or
(j)
make a false or misleading representation concerning

the place of origin of goods. Compare: Trade Practices Act 1974 s 53 (Aust) Section 13 heading: amended, on 15 November 2000, by section 3(b) of the Fair Trading Amendment Act 2000 (2000 No 64).

Section 13(a): amended, on 15 November 2000, by section 3(a) of the Fair Trading Amendment Act 2000 (2000 No 64).

Section 13(b): amended, on 15 November 2000, by section 3(a) of the Fair Trading Amendment Act 2000 (2000 No 64).

Section 13(c): amended, on 15 November 2000, by section 3(a) of the Fair Trading Amendment Act 2000 (2000 No 64).

Section 13(d): amended, on 15 November 2000, by section 3(a) of the Fair Trading Amendment Act 2000 (2000 No 64).

Section 13(e): amended, on 15 November 2000, by section 3(a) of the Fair Trading Amendment Act 2000 (2000 No 64).

Section 13(f): amended, on 15 November 2000, by section 3(a) of the Fair Trading Amendment Act 2000 (2000 No 64).

14 False representations and other misleading conduct in relation to land

(1)
Nopersonshall,intrade,inconnectionwiththesaleorgrantor possiblesaleorgrantofaninterestinlandorwiththepromotionbyanymeansofthesaleorgrantofaninterestinland,
(a)
makeafalseormisleadingrepresentationthataperson has any sponsorship, approval, endorsement, or affiliation; or
(b)
make a false or misleading representation concerning the nature of the interest in the land, the price payable forthe land,the location of theland, thecharacteristics oftheland,theusetowhichthelandiscapableofbeing putormaylawfullybeput,ortheexistenceoravailability of facilities associated with the land.
(2)
Nopersonshallusephysicalforce,harassment,orcoercionin connection with the sale or grant or possible sale or grant of an interest in land, or the payment for an interest in land.
(3)
In this section interest, in relation to land, means a legal or equitable estate or interest in the land; and includes
(a)
arightofoccupancyoftheland,orofabuildingorpart ofabuildingerectedontheland,arisingbyvirtueofthe holdingofshares,orbyvirtueofacontracttopurchase shares, in a company that owns the landor building; or
(b)
aright,power,orprivilege,over,orinconnectionwith,

the land. Compare: Trade Practices Act 1974 s 53A (Aust)

Section 14(1)(a): amended, on 8 July 2003, by section 3 of the Fair Trading Amendment Act 2003 (2003 No 31).

15 Limited application of sections 9 to 14 to news media

(1)
Nothing in sections 9 to 14 applies to the publication of any information or matter in a newspaper by the publisher of that newspaper, not being
(a)
the publication of an advertisement; or
(b)
the publication of any information or matter relating to the supply or possible supply or the promotion of the supplyoruseofgoodsorservicesorthesaleorgrantor thepossiblesaleorgrantorthepromotionofthesaleor grant of an interest in land by
(i)
that publisher or, where that publisher is a body corporate,byanyinterconnectedbodycorporate; or
(ii)
any person who is a party to any contract, arrangement, or understanding with that publisher relating to the content, nature or tenor of the information or matter.
(2)
Nothing in sections 9 to 14 applies to the broadcasting of any information or matter by a broadcasting body, not being
(a)
the broadcasting of an advertisement; or
(b)
the broadcasting of any information or matter relating tothesupplyorpossiblesupplyorthepromotionofthe supplyoruseofgoodsorservicesorthesaleorgrantor thepossiblesaleorgrantorthepromotionofthesaleor grant of an interest in land by
(i)
that broadcasting body, or where that broadcasting body is a body corporate, by any interconnected body corporate; or
(ii)
any person who is a party to any contract, arrangement,orunderstandingwiththatbroadcasting body relating to the content, nature or tenor of the information or matter.
(3)
For the purposes of this section
(a)
the expressions broadcasting and broadcasting body shall have the same meanings as they have in section 2 of the Broadcasting Act 1976:
(b)
newspaper has the meaning given to that term by sec tion2 oftheFilms,Videos,andPublicationsClassification Act 1993:
(ba) publisher,inrelationtoanewspaper,meansitsproprietor:
(c)
any2ormorebodiescorporatearetobetreatedasinterconnected if one of them is a body corporate of which theotherisasubsidiary(withinthemeaningofsections 158and158AoftheCompaniesAct1955or sections5 and 6 of the Companies Act 1993, as the case may be), or if both of them are subsidiaries (within the meaning of those sections) of one and the same body corporate; andinterconnectedbodycorporateshallbeconstrued accordingly.

Section 15(3)(b): substituted, on 27 April 1995, by section 4(3) of the News papers and Printers Act Repeal Act 1995 (1995 No 13).

Section15(3)(ba): inserted,on27April1995,bysection4(3)oftheNewspapers and Printers Act Repeal Act 1995 (1995 No 13).

Section15(3)(c): substituted,on1July1994,bysection2oftheCompanyLaw Reform (Transitional Provisions) 1994 (1994 No 16).

16 Certain conduct in relation to trade marks prohibited

(1)
No person shall, in trade,
(a)
forge any trade mark; or
(b)
falsely apply to any goods any trade mark or sign so nearlyresemblingatrademarkastobelikelytomislead or deceive; or
(c)
falsely use in relation to the provision of services any trademarkorsignsonearlyresemblingatrademarkas to be likely to mislead or deceive.
(2)
For the purposes of this section a person shall be deemed to forge a trade mark if that person
(a)
withouttheconsentoftheproprietorofthetrademark, makes that trade mark or a sign so nearly resembling thattrade mark as to belikelytomislead or deceive; or
(b)
falsifiesanygenuinetrademark,whetherbyalteration, effacement or otherwise.
(3)
For the purposes of this Partsign includes
(a)
abrand,colour,device,heading,label,letter,name,numeral, signature, smell, sound, taste, ticket, or word; and
(b)
any combination of signs
trade mark means a trade mark within the meaning of the Trade Marks Act 2002; and includes,
(a)
inthecaseofgoods,anysignuseduponorinconnection with the goods for the purpose of indicating that they are
(i)
goods of the proprietor of the sign by virtue of manufacture, selection, certification, dealing with, or offering to supply; or
(ii)
goods of a member of a body of persons that is the proprietor of the sign; or
(iii) goods certified by the proprietor of the sign in respectoforigin,material,modeofmanufacture, quality, accuracy, or other characteristic; and
(b)
inthecaseofservices,anysignusedinconnectionwith the provision of the services for the purpose of indicating that they are
(i)
services of the proprietor of the sign; or
(ii)
servicesofamemberofabodyofpersonsthatis the proprietor of the sign.

Section16(1): substituted,on1May1988,bysection33(1)oftheTradeMarks Amendment Act 1987 (1987 No 156).

Section16(1)(b): amended,on1January1995,bysection2oftheFairTrading Amendment Act 1994 (1994 No 124).

Section16(1)(c): amended,on1January1995,bysection2oftheFairTrading Amendment Act 1994 (1994 No 124).

Section16(2)(a): amended,on1January1995,bysection2oftheFairTrading Amendment Act 1994 (1994 No 124).

Section 16(3) certification trade mark: repealed, on 1 April 2000, by section 8(1) of the Trade Marks Amendment Act 1999 (1999 No 121).

Section16(3)sign: inserted,on1April2000,bysection8(1)oftheTradeMarks Amendment Act 1999 (1999 No 121).

Section16(3) trade mark: substituted, on 1 April 2000, by section 8(1) of the Trade Marks Amendment Act 1999 (1999 No 121).

Section16(3) trademark : amended,on20August2003,bysection201ofthe Trade Marks Act 2002 (2002 No 49).

Unfair practices

17 Offering gifts and prizes

No person shall,

(a)
in connection with the supply or possible supply of goods or services or with the promotion by any means of the supply or use of goods or services; or
(b)
inconnectionwiththesaleorgrantorthepossiblesale or grant of an interest in land or with the promotion by any means of the sale or grant of an interest in land,

offer gifts,prizes, orother freeitems withthe intention ofnot providing them or of not providing them as offered. Compare: Trade Practices Act 1974 ss 53A(1)(c), 54 (Aust)

18 Trading stamp schemes prohibited

[Repealed]

Section 18: repealed, on 8 July 2003, by section 4 of the Fair Trading Amend ment Act 2003 (2003 No 31).

19 Bait advertising

(1) No person shall, in trade, advertise for supply at a specified price goods or services which that person

(a)
does not intend to offer for supply; or
(b)
does not have reasonable grounds for believing can be

supplied by that personat thatpricefor aperiodthatis, andinquantitiesthatare,reasonablehavingregardtothenatureofthemarketinwhichthe personcarriesonbusinessandthenatureoftheadvertisement.

(2)
Anypersonwhohasadvertisedgoodsorservicesforsupplyat a specified price shall offer such goods or services for supply at thatpricefor aperiodthatis, andinquantitiesthatare,reasonablehavingregardtothenatureofthemarketinwhichthe personcarriesonbusinessandthenatureoftheadvertisement.
(3)
In a prosecution of any person in relation to a failure to offer goods or services to a person (in this subsection referred to as the customer) in accordance with subsection (2), it is a defence if the person proves that

(a) heofferedtosupply,ortoprocureanotherpersontosupply, goods or services ofthe kind advertised to thecustomer within a reasonable time, in a reasonable quantity,andattheadvertisedpriceandwheretheofferwas acceptedbythecustomer,thepersonhassosuppliedor

17

procuredanotherpersontosupplythegoodsorservices; or

(b) heofferedtosupplyimmediately,ortoprocureanother person to supply within a reasonable time, equivalent goodsorservicestothecustomerinareasonablequantity and at the price at which the first-mentioned goods or services were advertised, and, where the offer was accepted by the customer, the person has so supplied, or procured another person to supply, such equivalent goods or services.

Compare: 1969 No 12 s 10(3), (4); Trade Practices Act 1974 s 56 (Aust)

20 Referral selling

(1)
Subject to subsection (2), no person shall induce another persontoacquiregoodsorservicesbyrepresentingthattheperson acquiring the goods or services will, after the contract for the acquisition of the goods or services is made, receive a rebate, commission, or other benefit in return for giving that person thenamesofprospectivecustomersorotherwiseassistingthat persontosupplygoodsorservicestootherusersorconsumers, ifreceiptoftherebate,commission,orotherbenefitiscontingent on an event occurring after that contract is made.
(2)
Nothing in subsection (1) applies to the acquisition of goods for resupply. Compare: Trade Practices Act 1974 s 57 (Aust)

21 Demanding or accepting payment without intending to supply as ordered No person shall demand or accept payment or other consideration for goods or services, if at the time of the demand or acceptance that person

(a)
does not intend to supply the goods or services; or
(b)
intendstosupplygoodsorservicesmateriallydifferent from thegoodsor services in respect of which the payment or other consideration is demanded or accepted; or
(c)
does not have reasonable grounds to believe that that person will be able to supply the goods or services

withinanyspecifiedperiod;orifnoperiodisspecified, within a reasonable time. Compare: Trade Practices Act 1974 s 58 (Aust)

22 Misleading representations about certain business activities

(1)
Nopersonshallmakearepresentationthatisfalseormisleading in a material particular concerning the profitability or risk or any other material aspect of any business activity that that personrepresentsasonethatcanbe,orcanbetoasubstantial extent, carried on at or from a person’s place of residence.
(2)
No person who invites, whether by advertisement or otherwise, persons to engage or participate, or to offer or apply to engage or participate, in a business activity requiring
(a)
theperformancebythepersonsconcernedofwork;or
(b)
theinvestmentofmoneybythepersonsconcernedand the performance by them of work associated with the investment

shallmake,withrespecttotheprofitabilityorriskoranyother materialaspectofthebusinessactivity,arepresentationthatis false or misleading in a material particular. Compare: 1975No113s48B;1979No40s23;TradePracticesAct1974s59

(Aust)

23 Harassment and coercion

No person shall use physical force or harassment or coercion in connection with the supply or possible supply of goods or services or the payment for goods or services. Compare: Trade Practices Act 1974 s 60 (Aust)

24 Pyramid selling schemes

(1)
Nopersonshallpromoteoroperateapyramidsellingscheme.
(2)
For the purposes of this section, the term pyramid selling scheme means

(a) a scheme

(i)
that provides for the supply of goods or services or both for reward; and
(ii)
that, to many participants in the scheme, constitutes primarily an opportunity to buy or sell

19

aninvestmentopportunity,whetherpersonallyor through an agent, rather than an opportunity to buy or supply goods or services; and

(iii) that is or is likely to be unfair to many of the participants in the scheme in that

(A)
thefinancialrewardsofmanyofthoseparticipants aredependentontherecruitment of additional participants (whether or not at successively lower levels); and
(B)
the number of additional participants in the scheme that must be recruited to produce reasonable financial rewards to participants inthe schemeis notattainable or isnotlikelytobeattainablebymanyofthe participants in the scheme:

(b) aschemeofthetypecommonlyknownasachainletter scheme (whether or not it provides for the supply of goods or services or both) that is likely to be unfair to many of the participants in the scheme, in that

(i)
the financial rewards of many of those participants are dependent on the recruitment of additional participants; and
(ii)
the number of additional participants in the scheme that must be recruited to produce reasonable financial rewards to participants in the scheme is not attainable or is not likely to be attainable by many of the participants in the scheme.

Compare: 1975 No 113 s 48A; 1979 No 140 s 22(1)

Section24(2)(a)(ii): substituted,on8July2003,bysection5oftheFairTrading Amendment Act 2003 (2003 No 31).

25 Provisions of this Part not limited by reference to other provisions of this Part No provision of this Part limits or affects any other provision of this Part.

26 Importation of goods bearing false trade description

(1)
This section applies to any goods to which a false trade description is applied.
(2)
All goods to which this section applies are hereby prohibited to be imported into New Zealand, and shall be deemed to be includedamonggoodsprohibitedtobeimportedunder section 54 of the Customs and Excise Act 1996 and the provisions of that Act shall apply to such goods accordingly.
(3)
Inthissection, falsetradedescription meansanyrepresentation which if made in connection with the supply or possible supply of goods or with the promotion by any means of the supplyoruseofgoodswouldconstituteacontraventionof sec tion 13(a), (d), or (j).
(4)
For the purposes of subsection (1), a false trade description shall be deemed to be applied to goods if
(a)
it is woven in, impressed on, worked into, or annexed or affixed to the goods; or
(b)
itisappliedtoacovering,label,reel,orthinginorwith which the goods are supplied.
(5)
For the purposes of this section, a trade mark is not a representation. Section 26: substituted, on 1 January 1995, by section 3(1) of the Fair Trading

Amendment Act 1994 (1994 No 124).

Section26(2): amended,on 1 October 1996, by section 289(1) of the Customs and Excise Act 1996 (1996 No 27).

Part 2 Consumer information

Part 2: substituted, on 28 July 1997, by section 3 of the Fair Trading Amend ment Act 1997 (1997 No 43).

27 Consumer information standards

(1)
TheGovernor-Generalmay,fromtimetotime,ontherecommendation of the Minister, by Order in Council, make regulations prescribing, in respect of goods or services of any description or any class or classes of goods or services, a consumer information standard or 2 or more consumer information standards relating to all or any of the following matters:
(a)
thedisclosureofinformationrelatingtothekind,grade, quantity, origin, performance, care, composition, con-tents,design,construction,use,price,finish,packaging, promotion, or supply of the goods or services:
(b)
theformandmannerinwhichthatinformationmustbe disclosedonorinrelationto,orinconnectionwith,the supply or resupply, or possible supply or resupply, or promotion of the supply of the goods or services.
(2)
TheGovernor-Generalmay,fromtimetotime,ontherecommendation of the Minister, by Order inCouncil, makeregulations declaring that:
(a)
an official standard or an official standard with such additionsorvariationsasarespecifiedintheregulations is a consumer information standard:
(b)
a specified part or parts of an official standard or of an officialstandardwithsuchadditionsorvariationsasare specified in the regulations is a consumer information standard:
(c)
2 or more official standards or 2 or more official standardswithsuchadditionsorvariationsasarespecifiedin the regulations are consumer information standards:
(d)
specified parts of 2 or more official standards or of 2 or more official standards with such additions or variations as are specified in the regulations are consumer information standards.
(3)
TheMinistermustnotmakearecommendationunderthissection unless
(a)
the Minister has consulted with such persons or representativesofsuchpersonsastheMinisterconsiderswill besubstantiallyaffectedbyanyOrderinCouncilmade in accordance with the recommendation and those persons have had the opportunity to comment to the Minister; and
(b)
the Minister has considered any such comments.
(4)
A failure to comply with subsection (3) does not affect the validity of any Order in Council made under this section.
(5)
No Order in Council may be made under this section in respect of any medicine or related product, within the meaning

of the Medicines Act 1981, except in relation to the price of the medicine or related product. Section 27: substituted, on 28 July 1997, by section 3 of the Fair Trading

Amendment Act 1997 (1997 No 43).

28 Compliance with consumer information standards

(1)
Ifaconsumerinformationstandardinrespectofgoodsorser vices relates to a matter specified in section 27(1), a person mustnotsupply,oroffertosupply,oradvertisetosupplythose goods or services unless that person complies with that consumer information standard.
(2)
If 2 or more consumer information standards in respect of goodsorservicesrelatetoamatterspecifiedin section27(1) ,a personmustnotsupply,oroffertosupply,oradvertisetosupply those goods or services unless that person complies with one of those consumer information standards.
(3)
Nothing in subsection (1) or subsection (2) applies to goods that are intended for use outside New Zealand if there is applied to the goods
(a)
a statement that the goods are for export only; or
(b)
a statement indicating, by the use of words authorised by regulations made under this section, that the goods are intended to be used outside New Zealand,

and it must be presumed for the purposes of this section, unlessthecontraryisestablished,thatthegoodssoidentifiedare intended to be so used.

(4) For the purposes of subsection (3), a statement is deemed to be applied to goods if the statement is

(a)
woven in, impressed on, worked into, or annexed or affixed to the goods; or
(b)
applied to a covering, label, reel, or thing in or with which the goods are supplied.

Section 28: substituted, on 28 July 1997, by section 3 of the Fair Trading Amendment Act 1997 (1997 No 43).

Part 3 Product safety

29 Product safety standards

(1)
TheGovernor-Generalmay,fromtimetotime,ontherecommendation of the Minister, by Order inCouncil, makeregulations in respect of goods of any description or any class or classes of goods, prescribing for the purpose of preventing or reducing the risk of injury to any person, a product safety standard or 2 or more product safety standards relating to all or any of the following matters
(a)
the performance, composition, contents, manufacture, processing,design,construction,finishorpackagingof the goods:
(b)
the testing of the goods during or after manufacture or processing:
(c)
theformandcontentofmarkings,warnings,orinstructions to accompany the goods.
(2)
TheGovernor-Generalmay,fromtimetotime,ontherecommendation of the Minister, by Order inCouncil, makeregulations declaring that:
(a)
an official standard or an official standard with such additionsorvariationsasarespecifiedintheregulations is a product safety standard:
(b)
a specified part or parts of an official standard or of an officialstandardwithsuchadditionsorvariationsasare specifiedintheregulationsisaproductsafetystandard:
(c)
2 or more official standards or 2 or more official standardswithsuchadditionsorvariationsasarespecifiedin the regulations are product safety standards:
(d)
specified parts of 2 or more official standards or of 2 or more official standards with such additions or variations as are specified in the regulations are product safety standards.
(3)
TheMinistermustnotmakearecommendationunderthissection unless
(a)
the Minister has consulted with such persons or representativesofsuchpersonsastheMinisterconsiderswill besubstantiallyaffectedbyanyOrderinCouncilmade in accordance with the recommendation and those per
sons have had the opportunity to comment to the Minister; and
(b)
the Minister has considered any such comments.
(4)
A failure to comply with subsection (3) does not affect the validity of any Order in Council made under this section. Section 29: substituted, on 28 July 1997, by section 4 of the Fair Trading

Amendment Act 1997 (1997 No 43).

30 Compliance with product safety standards

(1)
If a product safety standard in respect of goods relates to a matter specifiedin section29(1) ,a person must notsupply, or offer to supply, or advertise to supply those goods unless that person complies with that product safety standard.
(2)
If 2 or more product safety standards in respect of goods re late to a matter specified in section 29(1), a person must not supply, or offer to supply, or advertise to supply those goods unless that person complies with one of those product safety standards.
(3)
Nothing in subsection (1) or subsection (2) applies to goods that are intended for use outside New Zealand if there is applied to the goods
(a)
a statement that the goods are for export only; or
(b)
a statement indicating, by the use of words authorised by regulations made under this section, that the goods are intended to be used outside New Zealand,

and it must be presumed for the purposes of this section, unlessthecontraryisestablished,thatthegoodssoidentifiedare intended to be so used.

(4) For the purposes of subsection (3), a statement is deemed to be applied to goods if the statement is

(a)
woven in, impressed on, worked into, or annexed or affixed to the goods; or
(b)
applied to a covering, label, reel, or thing in or with which the goods are supplied.

Section 30: substituted, on 28 July 1997, by section 4 of the Fair Trading Amendment Act 1997 (1997 No 43).

31 Unsafe goods

(1)
WhereitappearstotheMinisterthatgoodsofanydescription oranyclassorclassesofgoodswillormaycauseinjurytoany person,theMinistermay,bynoticeinthe Gazette,declarethe goods to be unsafe goods.
(2)
A notice made pursuant to subsection (1) shall, unless previouslyrevokedbytheMinisterbynoticeintheGazette,remain in force for 18 months after the date of publication of the notice in the Gazette.
(3)
Where
(a)
aperiodof18monthshaselapsedafterthedateofpublicationofanoticeintheGazette pursuanttosubsection
(1) declaring goods to be unsafe goods; and
(b)
a product safety standard has not been prescribed pur

suant to section 29 in respect of the goods, theMinistermay,bynoticeinthe Gazette,prohibitthesupply ofthegoodsindefinitelyorforsuchperiodasmaybespecified in the notice.

(4)
A notice made pursuant to subsection (3) may be amended or revoked at any time by the Minister by notice in the Gazette.
(5)
Nopersonshallsupply,oroffertosupply,oradvertisetosupply, goods
(a)
in respect of which there is in force a notice declaring the goods to be unsafe goods; or
(b)
inrespectofwhichthereisinforceanoticeundersub

section (3). Compare: Trade Practices Act 1974 s 62(1)(b), (2D), (2E) (Aust)

32 Compulsory product recall

(1) Whereaperson(inthissectionreferredtoasthesupplier)has in trade supplied goods which

(a)
donotcomplywithaproductsafetystandardprescribed in respect of the goods; or
(b)
are goods of a kind which will or may cause injury to

any personandthesupplierhasnotrecalledthegoodsortakensatisfactory action to recall the goods the Minister may, by notice to the supplier, require the supplier to take the action specified in subsection (3).

(2)
Whereaperson(inthissectionreferredtoasthesupplier)has in trade supplied goods which are goods of a kind in relation to which there is in force a notice under section 31(1) or (3), and the supplier has not recalled the goods or taken satisfactory action to recall the goods, the Minister may by notice to thesupplierrequirethesuppliertotake the actionspecifiedin subsection (3).
(3)
For the purposes of subsections (1) and (2), the Minister may requirethesupplier,inamannerandwithinaperiodspecified and at his own expense, to do all or any of the following:
(a)
recall the goods:
(b)
disclose to the public information relating to
(i)
the characteristics of the goods which render them unsafe; or
(ii)
the circumstances in which use of the goods is unsafe; or
(iii) anyothermattersrelatingtothegoodsortheuse of the goods as may be specified:
(c)
repair or replace the goods or refund to any person to whom the goods were supplied or resupplied the price paid for the goods or any lesser amount as may be reasonable having regard to the use that person has had of the goods.
(4)
Where a notice is given to a supplier under subsection (1) or subsection (2) that supplier shall comply in all respects with the notice.
(5)
Where a notice is given to a supplier under subsection (1) or subsection (2) that supplier shall not, in trade,
(a)
where the notice identifies a defect in, or a dangerous characteristic of the goods, supply goods of a kind to which the notice relates which contain that defect or have that characteristic; or
(b)
in any other case, supply goods of a kind to which the notice relates.

33 Importation of certain goods prohibited All goods the supply of which would constitute a contraventionofthisPartareherebyprohibitedtobeimportedintoNew Zealandandshallbedeemedtobeincludedamonggoodspro

27

hibited to be imported under section 54 of the Customs and Excise Act 1996 and the provisions of that Act shall apply to such goods accordingly. Section33: amended,on1October1996,bysection289(1)oftheCustomsand

Excise Act 1996 (1996 No 27).

Part 4 Safety of services

34 Meaning of services For the purposes of this Part services means the performance of work by way of

(a)
themaintenance,repair,treatment,processing,installation, assembly, cleaning or alteration of goods:
(b)
theconstruction,maintenance,repair,cleaningoralteration of any building or other fixture on land:
(c)
the development of land:
(d)
the transportation of goods. Compare: Trade Practices Act 1974 s 74(3) (Aust)

35 Safety standards in respect of services

(1)
TheGovernor-Generalmay,fromtimetotime,ontherecommendation of the Minister, by Order inCouncil, makeregulations in respect of services of any description or any class or classes of services, prescribing for the purpose of preventing or reducing the risk of injury to any person, a services safety standard or 2 or more services safety standards relating to the performance of those services.
(2)
TheGovernor-Generalmay,fromtimetotime,ontherecommendation of the Minister, by Order inCouncil, makeregulations declaring that:
(a)
an official standard or an official standard with such additionsorvariationsasarespecifiedintheregulations is a services safety standard:
(b)
a specified part or parts of an official standard or of an officialstandardwithsuchadditionsorvariationsasare specifiedintheregulationsisaservicessafetystandard:
(c)
2 or more official standards or 2 or more official standardswithsuchadditionsorvariationsasarespecifiedin the regulations are services safety standards:
(d)
specifiedpartsof2ormoreofficialstandardsorof2or moreofficialstandardswithsuchadditionsorvariations as are specified in the regulations are services safety standards.
(3)
TheMinistermustnotmakearecommendationunderthissection unless
(a)
the Minister has consulted with such persons or representativesofsuchpersonsastheMinisterconsiderswill besubstantiallyaffectedbyanyOrderinCouncilmade in accordance with the recommendation and those persons have had the opportunity to comment to the Minister; and
(b)
the Minister has considered any such comments.
(4)
A failure to comply with subsection (3) does not affect the validity of any Order in Council made under this section. Section 35: substituted, on 28 July 1997, by section 5 of the Fair Trading

Amendment Act 1997 (1997 No 43).

36 Compliance with services safety standards

(1)
Ifaservicessafetystandardinrespectofservicesisprescribed under section35(1) ,apersonmustnotsupply,oroffertosupply, or advertise to supply those services unless that person complies with that services safety standard.
(2)
If2ormoreservicessafetystandardsinrespectofservicesare prescribed under section 35(1), a person must not supply, or offertosupply,oradvertisetosupplythoseservicesunlessthat person complies with one of those services safety standards. Section 36: substituted, on 28 July 1997, by section 5 of the Fair Trading

Amendment Act 1997 (1997 No 43).

Part 5 Enforcement and remedies

Jurisdiction of courts

37 Jurisdiction of High Court In accordance with this Part, the High Court shall hear and determine the following matters

(a)
appeals from criminal proceedings in a District Court for offences against sections 40 and 47J:
(ab) appeals from proceedings in a District Court for orders under section 40A:
(b)
applications for injunctions under section 41:
(c)
applications for orders under sections 42 and 43.

Section 37(a): amended, on 8 July 2003, by section 6(1) of the Fair Trading Amendment Act 2003 (2003 No 31).

Section 37(ab): inserted, on 8 July 2003, by section 6(2) of the Fair Trading Amendment Act 2003 (2003 No 31).

38 Jurisdiction of District Courts InaccordancewiththisPart,theDistrictCourtsshallhearand determine the following matters

(a)
proceedings for offences against sections 40 and 47J:
(b)
applicationsforordersunder sections40A , 42 ,and 43 .

Section 38(a): amended, on 8 July 2003, by section 7(a) of the Fair Trading Amendment Act 2003 (2003 No 31).

Section 38(b): amended, on 8 July 2003, by section 7(b) of the Fair Trading Amendment Act 2003 (2003 No 31).

39 Jurisdiction of Disputes Tribunals In accordance with this Part, a Disputes Tribunal established under section4 oftheDisputesTribunalsAct1988shallhave jurisdiction to hear and determine applications for orders under section 43(2)(c) to (f) of this Act (except in respect of a contravention of section 9 of this Act). Section 39: substituted, on 1 March 1989, by section 82(2) of the Disputes

Tribunals Act 1988 (1988 No 110).

Offences

40 Contraventions of provisions of Part 1, Part 2, Part 3, and Part 4 an offence

(1) Everypersonwhocontravenesanyoftheprovisionsof Part1 (except sections 9, 14(2), 23, and 24), or Part 2, or Part 3 or Part 4, commits an offence and is liable on summary convic tion

(a)
inthecaseofapersonotherthanabodycorporate,toa fine not exceeding $60,000; and
(b)
in the case of a body corporate, to a fine not exceeding $200,000.

(1A) Everypersonwhocontravenessection24commitsanoffence and is liable on summary conviction to a fine not exceeding $200,000.

(2) Where a person is convicted, whether in the same or separate proceedings,of2ormoreoffencesinrespectofcontraventions of the same provisions of this Act and those contraventions are of the same or a substantially similar nature and occurred at or about the same time, the aggregate amount of any fines imposedonthatpersoninrespectofthoseconvictionsshallnot exceed the amountofthemaximum finethat maybe imposed in respect of a conviction for a single offence.

(3) Despite section14 oftheSummaryProceedingsAct1957,proceedings under this section may be commenced at any time within3yearsafterthemattergivingrisetothecontravention was discovered or ought reasonably to have been discovered. Compare: Trade Practices Act 1974 s 79(3) (Aust) Section40(1): amended,on 8 July 2003,by section 8(1)(a) of theFairTrading Amendment Act 2003 (2003 No 31).

Section40(1)(a): amended,on8July2003,bysection8(1)(b)oftheFairTrad ing Amendment Act 2003 (2003 No 31).

Section40(1)(b): amended,on8July2003,bysection8(1)(c)oftheFairTrad ing Amendment Act 2003 (2003 No 31).

Section 40(1A): inserted, on 8 July 2003, by section 8(2) of the Fair Trading Amendment Act 2003 (2003 No 31).

Section 40(3): substituted, on 8 July 2003, by section 8(3) of the Fair Trading Amendment Act 2003 (2003 No 31).

40A Additional penalty for contravention of section 24 involving commercial gain

(1)
Ifapersonisconvictedofanoffenceunder section40(1A) ,the court may, on the application of the Commission, in addition toanypenaltythatthecourtmayimposeunderthatsubsection, orderthatpersontopayanamountnotexceedingthevalueof any commercial gain resulting from the contravention if the court is satisfied that the contravention occurred in the course of producing a commercial gain.
(2)
The value of any gain must be assessed by the court, and any amount ordered to be paid is recoverable in the same manner as a fine.
(3)
The standard of proof in proceedings under this section is the standard of proof that applies in civil proceedings.
(4)
In this section, court includes a District Court.

Section40A:inserted,on8July2003,by section9 oftheFairTradingAmendment Act 2003 (2003 No 31).

Civil proceedings

41 Injunctions may be granted by court for contravention of Part 1, Part 2, Part 3, and Part 4

(1)
The court may, on the application of the Commission or any otherperson,grantaninjunctionrestrainingapersonfromengaging in conduct that constitutes or would constitute any of the following
(a)
acontraventionofanyoftheprovisionsof Parts1to4 :
(b)
any attempt to contravene such a provision:
(c)
aiding, abetting, counselling, or procuring any other person to contravene such a provision:
(d)
inducing, or attempting to induce, any other person, whether by threats, promises or otherwise, to contravene such a provision:
(e)
beinginanywaydirectlyorindirectly,knowinglyconcerned in, or party to, the contravention by any other person of such a provision:
(f)
conspiring with any other person to contravene such a provision.
(2)
The court may at any time rescind or vary an injunction granted under this section.
(3)
Whereanapplicationismadetothecourtunderthissectionfor the grant of an injunction restraining a person from engaging in conduct of a particular kind the court may,
(a)
if it is satisfied that the person has engaged in conduct of that kind, grant an injunction restraining the person from engaging in conduct of that kind; or
(b)
if in the opinion of the court it is desirable to do so, grant an interim injunction restraining the person from engaging in conduct of that kind,

whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind.

(4) Whereanapplicationismadetothecourtunderthissectionfor the grant of an injunction restraining a person from engaging in conduct of a particular kind, the court may,

(a)
ifitappearstothecourtthat,intheeventthataninjunctionisnotgranted,itislikelythatthepersonwillengage in conduct of that kind, grant an injunction restraining the person from engaging in conduct of that kind; or
(b)
if in the opinion of the court it is desirable to do so, grant an interim injunction restraining the person from engaging in conduct of that kind,

whether or not the person has previously engaged in conduct ofthatkindandwhetherornotthereisanimminentdangerof substantialdamagetoanypersonifthefirst-mentionedperson engages in conduct of that kind.

(5) If the Commission applies to the court for the grant of an interim injunction, the court must not, as a condition of granting an interim injunction, require the Commission to give an undertaking as to damages.

(6) However,indeterminingtheCommission’sapplicationforthe grantofaninteriminjunction,thecourtmustnottakeintoaccountthattheCommissionisnotrequiredtogiveanundertaking as to damages. Compare: 1986 No 5 s 88A; Trade Practices Act 1974 s 80(1)–(5) (Aust) Section41(5): added,on8July2003,bysection10oftheFairTradingAmend ment Act 2003 (2003 No 31).

Section41(6): added,on8July2003,bysection10oftheFairTradingAmend ment Act 2003 (2003 No 31).

Section 41 compare note: amended, on 8 July 2003, by section 10 of the Fair Trading Amendment Act 2003 (2003 No 31).

42 Order to disclose information or publish advertisement

(1) Where, on the application of the Commission, the court is satisfied that a person has engaged in conduct constituting a contraventionofanyoftheprovisionsof Parts1to4 ,thecourt may (whether or not that person has previously engaged in such conduct), make either or both of the following orders:

(a) an order requiring that person, or any other person involvedinthecontravention,todisclose,atthatperson’s own expense, to the public, or to a particular person or to persons included in a particular class of persons, in

33

such manner as is specified in the order, such information, or information of such a kind, as is so specified, beinginformationthatisinthepossessionoftheperson to whom the order is directed or to which that person has access:

(b) an order requiring that person, or any other person involved in the contravention,topublish, at that person’s own expense, in such manner and at such times as are specified in the order, corrective statements the terms ofwhicharespecifiedin,oraretobedeterminedinaccordance with, the order.

(2) The court may hear and determine an application under subsection (1) in conjunction with any other proceedings under any of sections 40, 40A, 41, or 43.

(3) In this section, court includes a District Court. Compare: Trade Practices Act 1974 s 80A(1) (Aust) Section42(2): added,on8July2003,bysection11oftheFairTradingAmend ment Act 2003 (2003 No 31).

Section42(3): added,on8July2003,bysection11oftheFairTradingAmend ment Act 2003 (2003 No 31).

43 Other orders

(1) Where, in any proceedings under this Part, or on the application of any person, the court finds that a person, whether or notthatpersonisapartytotheproceedings,hassuffered,oris likelytosuffer,lossordamagebyconductofanyotherperson that constitutes or would constitute

(a)
acontraventionofanyoftheprovisionsof Parts1to4 ; or
(b)
aiding, abetting, counselling, or procuring the contravention of such a provision; or
(c)
inducing by threats, promises, or otherwise the contravention of such a provision; or
(d)
being in any way directly or indirectly knowingly concerned in, or party to, the contravention of such a provision; or
(e)
conspiring with any other person in the contravention of such a provision

thecourtmay(whetherornotitgrantsaninjunctionormakes any other order under this Part) make all or any of the orders referred to in subsection (2).

(2)
For the purposes of subsection (1), the court may make the following orders
(a)
an order declaring the whole or any part of a contract made between the person who suffered, or is likely to suffer, the loss or damage and the person who engaged intheconductreferredtoinsubsection(1)orofacollateral arrangement relating to such a contract, to be void and, if the court thinks fit, to have been void ab initio oratalltimesonandaftersuchdate,beforethedateon which the order is made, as is specified in the order:
(b)
anordervaryingsuchacontractorarrangementinsuch manner as is specified in the order and, if the court thinksfit,declaringthecontractorarrangementtohave hadeffectassovariedonandaftersuchdate,beforethe date on which the order is made, as is so specified:
(c)
an order directing the person who engaged in the conduct, referred to in subsection (1) to refund money or return property to the person who suffered the loss or damage:
(d)
an order directing the person who engaged in the conduct, referred to in subsection (1) to pay to the person whosuffered thelossordamage the amount of the loss or damage:
(e)
an order directing the person who engaged in the conduct, referred to in subsection (1) at that person’s own expense, to repair, or provide parts for, goods that had been supplied by the person who engaged in the conduct to the person who suffered, or is likely to suffer, the loss or damage:
(f)
an order directing the person who engaged in the conduct, referred to in subsection (1) at that person’s own expense,tosupplyspecifiedservicestothepersonwho suffered, or is likely to suffer, the loss or damage.
(3)
In the exercise of its jurisdiction under this section a District Court shall not
(a)
make any order under subsection (2)(a) in any case where the value of the consideration for the promise or actofanypartytothecontractorcollateralarrangement exceeds $200,000:
(b)
makeanorderundersubsection(2)(b)inanycasewhere the value of the consideration for the promise or act of any party to the contract or arrangement exceeds $200,000:
(c)
makeanorderundersubsection(2)(c)directingaperson torefundmoneyorreturnpropertywheretheamountof money or the value of the property exceeds $200,000:
(d)
make an order under subsection (2)(d) requiring a person to pay an amount exceeding $200,000:
(e)
make an order under subsection (2)(e) directing a person to repair goods or provide parts for goods where the value of the work required to repair the goods, or the value of the parts, as the case may be, exceeds $200,000:
(f)
make an order under subsection (2)(f) directing a person to supply services where the value of the services exceeds $200,000.
(4)
Subject to subsection (4A), in the exercise of its jurisdiction under this section a Disputes Tribunal shall not
(a)
makeanorderundersubsection(2)(c)directingaperson torefundmoneyorreturnpropertywheretheamountof money or the value of the property exceeds $15,000:
(b)
make an order under subsection (2)(d) requiring a person to pay an amount exceeding $15,000:
(c)
makeanorderundersubsection(2)(e)directingaperson to repair goods or provide parts for goods where the value of the work required to repair the goods, or the valueoftheparts,asthecasemaybe,exceeds$15,000:
(d)
make an order under subsection (2)(f) directing a person to supply services where the value of the services exceeds $15,000.

(4A) Where, in respect of any proceedings properly before a Disputes Tribunal, the jurisdiction of the Tribunal has been ex tended under an agreement made pursuant to section 13 of the Disputes Tribunals Act 1988, subsection (4) of this section shall be read as if every reference in that subsection to $15,000 were a reference to $20,000.

(5)
Anapplicationundersubsection(1)maybemadeatanytime within 3 years after the date on which the loss or damage, or the likelihood of loss or damage, was discovered or ought reasonably to have been discovered.
(6)
Anordermadeundersubsection(2)(a)or(b)shallnotprevent proceedings being instituted or commenced under this Part.
(7)
Nothing in this section limits or affects the Illegal Contracts Act 1970.
(8)
For the purposes of subsection (1), a reference to court includesareferencetoaDistrictCourtandaDisputesTribunal.

(9) Nothing in this section affects section 317 of the Accident Compensation Act 2001. Compare: Trade Practices Act 1974 s 87(1), (1A), (2) (Aust) Section 43(3)(a): amended, on 1 July 1992, by section 19(1) of the District Courts Amendment Act 1991 (1991 No 61).

Section 43(3)(b): amended, on 1 July 1992, by section 19(1) of the District Courts Amendment Act 1991 (1991 No 61).

Section 43(3)(c): amended, on 1 July 1992, by section 19(1) of the District Courts Amendment Act 1991 (1991 No 61).

Section 43(3)(d): amended, on 1 July 1992, by section 19(1) of the District Courts Amendment Act 1991 (1991 No 61).

Section 43(3)(e): amended, on 1 July 1992, by section 19(1) of the District Courts Amendment Act 1991 (1991 No 61).

Section 43(3)(f): amended, on 1 July 1992, by section 19(1) of the District Courts Amendment Act 1991 (1991 No 61).

Section 43(4): substituted, on 1 March 1989, by section 82(2) of the Disputes Tribunals Act 1988 (1988 No 110).

Section 43(4)(a): amended, on 1 August 2009, by section 8 of the Disputes Tribunals Amendment Act 2009 (2009 No 22).

Section 43(4)(b): amended, on 1 August 2009, by section 8 of the Disputes Tribunals Amendment Act 2009 (2009 No 22).

Section 43(4)(c): amended, on 1 August 2009, by section 8 of the Disputes Tribunals Amendment Act 2009 (2009 No 22).

Section 43(4)(d): amended, on 1 August 2009, by section 8 of the Disputes Tribunals Amendment Act 2009 (2009 No 22).

Section 43(4A): inserted, on 1 March 1989, by section 82(2) of the Disputes Tribunals Act 1988 (1988 No 110).

Section 43(4A): amended, on 1 August 2009, by section 8 of the Disputes Tri bunals Amendment Act 2009 (2009 No 22).

Section 43(5): substituted, on 3 May 2001, by section 3 of the Fair Trading Amendment Act 2001 (2001 No 20).

Section 43(8): amended, on 1 March 1989, by section 82(2) of the Disputes Tribunals Act 1988 (1988 No 110).

Section 43(9): amended, on 3 March 2010, pursuant to section 5(1)(b) of the Accident Compensation Amendment Act 2010 (2010 No 1).

Section 43(9): amended, on 1 April 2002, by section 337(1) of the Injury Pre vention, Rehabilitation, and Compensation Act 2001 (2001 No 49).

44 Defences

(1)
Subject to this section, it is a defence to a prosecution for an offence against section 40 if the defendant proves
(a)
thatthecontraventionwasduetoareasonablemistake; or
(b)
thatthecontraventionwasduetoreasonablerelianceon information supplied by another person; or
(c)
that
(i)
thecontraventionwasduetotheactordefaultof anotherperson,ortoanaccidentortosomeother cause beyond the defendant’s control; and
(ii)
the defendant took reasonable precautions and exercised due diligence to avoid the contravention.
(2)
Forthepurposesofsubsection(1)(b)and(c),thetermanother person does not include
(a)
a servant or agent of the defendant; or
(b)
wherethedefendantisabodycorporate,adirector,servant or agent of the defendant.
(3)
A defendant is not, without the leave of the District Court, entitled to rely on the defence provided by subsection (1)(b) thatthecontraventionwasduetoreasonablerelianceoninformation supplied by another person, or by subsection (1)(c)(i) that the contravention was due to the act or default of another person, unless the defendant has, not later than 7 days before thedate onwhichthehearingoftheproceedings commences, servedontheinformantanoticeinwritingidentifyingthatperson.
(4)
It is a defence to a prosecution for an offence against section 40 , or to any other proceedings under this Part, in relation to

a contravention of a provision of this Act committed by the publication of an advertisement, if the defendant proves

(a)
thatthedefendant’sbusinessispublishingorarranging for the publication of advertisements; and
(b)
thatthedefendantreceivedtheadvertisement,ortheinformation contained in the advertisement, as the case may be, in the ordinary course of that business and did not know and had no reason to suspect that the publication of the advertisement or the publication of the advertisement containing that information, as the case may be, would constitute a contravention of the provision.
(5)
Subjecttosubsection(6),itisadefencetoaprosecutionforan offence against section 40, or to any other proceedings under this Part, in relation to a contravention of section 28, if the defendant proves
(a)
that the goods to which the proceedings relate were acquired by the defendant for the purpose of resupply from a person (not being an agent of a person outside NewZealand)whocarriedoninNewZealandthebusiness of supplying such goods; and
(b)
thatthedefendantdidnotknow,andcouldnotwithreasonable diligence have ascertained, that the goods did not comply with the consumer information standard or that the defendant had not complied with that standard in relation to the goods, as the case may be, or that the defendantreliedingoodfaithonarepresentationbythe person from whom the defendant acquired the goods thataconsumerinformationstandardhadnotbeenprescribed for those goods.
(6)
A defendant is not, without the leave of the District Court, entitledto relyonanydefence providedbysubsection(5)unlessthedefendanthas,notlaterthan7daysbeforethedateon which the hearing of the proceedings commences, served, in thecaseofproceedingsforanoffence,ontheinformant,andin thecaseof any otherproceedings, onthepersoncommencing those proceedings, a notice in writing identifying the person by whom the goods were supplied. Compare: Trade Practices Act 1974 s 85(1)–(5) (Aust)

Section 44(5): amended, on 8 July 2003, by section 12 of the Fair Trading Amendment Act 2003 (2003 No 31).

45 Conduct by servants or agents

(1)
Where, in proceedings under this Part in respect of any conductengagedinbyabodycorporate,beingconductinrelation to which any of the provisions of this Act applies, it is necessary to establish the state of mind of the body corporate, it is sufficient to show that a director, servant or agent of the body corporate, acting within the scope of that person’s actual or apparent authority, had that state of mind.
(2)
Any conduct engaged in on behalf of a body corporate
(a)
by a director, servant, or agent of the body corporate, actingwithinthescopeofthatperson’sactualorapparent authority; or
(b)
byanyotherpersonatthedirectionorwiththeconsent oragreement(whetherexpressorimplied)ofadirector, servant,oragentofthebodycorporate,givenwithinthe scopeoftheactualorapparentauthorityofthedirector, servant or agent

shall be deemed, for the purposes of this Act, to have been engaged in also by the body corporate.

(3)
Where, in a proceeding under this Part in respect of any conductengagedinbyapersonotherthanabodycorporate,being conduct in relation to which a provision of this Act applies, it is necessary to establish the state of mind of the person, it is sufficient to show that a servant or agent of the person, acting within the scope of that person’s actual or apparent authority, had that state of mind.
(4)
Any conduct engaged in on behalf of a person other than a body corporate
(a)
by a servant or agent of the person acting within the scope of that person’s actual or apparent authority; or
(b)
byanyotherpersonatthedirectionorwiththeconsent or agreement (whether express or implied) of a servant oragentofthefirst-mentionedperson,givenwithinthe scope of the actual or apparent authority of the servant or agent

shall be deemed, for the purposes of this Act, to have been engaged in also by the first-mentioned person.

(5) A reference in this section to the state of mind of a person in-cludesareferencetotheknowledge,intention,opinion,belief or purpose of the person and the person’s reasons for that intention, opinion, belief or purpose. Compare: Trade Practices Act 1974 s 84 (Aust)

46 Finding in proceedings to be evidence In any application for an order against a person under section 43 ,afindingofanyfactmadeinproceedingsforaninjunction under section 41 or for an order under section 40A or section 42 , or for an offence under section 40, being proceedings be fore the High Court or a District Court in which that person was found to have engaged in conduct of the kind referred to in section 43(1)(a) to (e) is prima facie evidence of that fact and the finding may be proved by production of a document under the seal of the court or District Court, as the case may be, in which the finding was made. Compare: Trade Practices Act 1974 s 83 (Aust) Section46: amended,on8July2003,bysection13oftheFairTradingAmend ment Act 2003 (2003 No 31).

Part 6 Miscellaneous provisions 47 Power to search

(1)
The Commission may, from time to time, authorise an employee of the Commission to search, under a warrant issued under subsection (2), any place named in the warrant for any of the purposes set out in that subsection.
(2)
A District Court Judge, Justice, Community Magistrate, or court Registrar (not being a constable) may, by warrant, authorise a person who is authorised under subsection (1) to search a place specified in the warrant if he or she is satisfied on application made on oath by that employee that there arereasonablegroundstobelievethatasearchisnecessaryfor the purpose of
(a)
investigating
(i)
whether a person has engaged in, or is engaging in, conduct that constitutes, or may constitute, a contravention of this Act; or
(ii)
the nature or extent of any conduct that constitutes, or may constitute, a contravention of this Act; or
(b)
gathering, obtaining, or recovering evidence of
(i)
conduct that constitutes, or may constitute, a contravention of this Act; or
(ii)
the nature or extent of any conduct that constitutes, or may constitute, a contravention of this Act.
(3)
Apersonwhoappliesforawarrantshall,havingmadereasonable inquiries, disclose
(a)
details of every previous application for a warrant to search the place that the person knows has been made within the preceding 28 days; and
(b)
the result of the application.

Section47: substituted,on1July1990,bysection3oftheFairTradingAmendment Act 1990 (1990 No 42).

Section 47(1): substituted, on 8 July 2003, by section 14 of the Fair Trading Amendment Act 2003 (2003 No 31).

Section 47(2): substituted, on 8 July 2003, by section 14 of the Fair Trading Amendment Act 2003 (2003 No 31).

47A Powers conferred by warrant

(1)
Awarrantissuedunder section47 authorisesthepersonnamed in it
(a)
to enter and search the place specified in the warrant on 1occasion within 30days of the date ofissue of the warrantatatimethatisreasonableinthecircumstances:
(b)
to use such assistance as is reasonable in the circumstances:
(c)
to use such force for gaining entry and for breaking openanyarticleorthingasisreasonableinthecircumstances:
(d)
to search for and remove documents or any article or thing that the person executing the warrant believes on reasonable grounds may be relevant:
(e)
to search for and remove goods that the person executing the warrant believes on reasonablegrounds may be relevant:
(f)
where necessary, to take copies of documents, or extracts from documents, that the person executing the warrant believes on reasonable grounds may be relevant:
(g)
where necessary, to require a person to reproduce, or assistanypersonexecutingthewarranttoreproduce,in usable form, information recorded or stored in a document.
(2)
A person assisting the person executing the warrant also has the powers referred to in paragraphs (c), (d), (e), and (f) of subsection (1).
(3)
Thewarrantshallbeexecutedinaccordancewithsuchreasonable conditions as may be specified in the warrant when it is issued. Section47A:inserted,on1July1990,bysection3oftheFairTradingAmend

ment Act 1990 (1990 No 42).

47B Warrant to be produced

A person executing a warrant under section 47

(a)
must have the warrant with him or her; and
(b)
mustproduceitoninitialentryand,ifrequested,atany subsequent time; and
(c)
mustidentifyhimselforherselftotheowneroroccupier orpersoninchargeoftheplaceifthatpersonispresent; and
(d)
must produce evidence of his or her identity.

Section47B:inserted,on1July1990,bysection3oftheFairTradingAmendment Act 1990 (1990 No 42).

47C Other duties of person who executes a warrant

(1)
Apersonwhoexecutesawarrantissuedunder section47 must, beforecompletingthesearch,leaveinaprominentplaceatthe place searched,
(a)
in the case of a search carried out at a time when the owneroroccupierwasnotpresent,awrittennoticestating
(i)
thedateandtimewhenthewarrantwasexecuted; and
(ii)
thenameofthepersonwhoexecutedthewarrant; and
(b)
inthecaseofasearchwheredocumentsorgoodswere removed from the place being searched, a schedule of documents or goods that were removed during the search.
(2)
If it is not practicable to prepare a schedule before completing the search, or if the owner or occupier of the place being searched consents, the person executing the warrant
(a)
may,insteadofleavingaschedule,leaveanoticestating thatdocumentsorgoodshavebeenremovedduringthe search and that, within 7 days of the search, a schedule will be delivered, left, or sent stating what documents or goods have been removed; and
(b)
must, within 7 days of the search,
(i)
deliver a schedule to the owner or occupier; or
(ii)
leave a schedule in a prominent position at the place searched; or
(iii) sendaschedulebymailtotheowneroroccupier of the place searched.
(3)
Every schedule must state
(a)
the documents or goods that have been removed; and
(b)
the location from where they were removed; and
(c)
the location where they are being held.

Section47C:inserted,on1July1990,bysection3oftheFairTradingAmendment Act 1990 (1990 No 42).

47D Duty to assist The occupier or person in charge of the place that a person authorisedpursuanttoawarrantissuedunder section47 enters forthepurpose ofsearching mustprovidethatpersonwithall reasonable facilities and assistance in executing the warrant. Section47D:inserted,on1July1990,bysection3oftheFairTradingAmend

ment Act 1990 (1990 No 42).

47E Power to inspect documents and goods

The Commission, or any person authorised in writing by the Commission for the purpose, may

(a)
inspect and take copies of any documents or extracts from documents obtained pursuant to a warrant issued under section 47; or
(b)
inspect any goods obtained under any such warrant.

Section47E:inserted,on1July1990,bysection3oftheFairTradingAmendment Act 1990 (1990 No 42).

47F Offence

Every person who resists, obstructs, or delays any authorised person acting pursuant to a warrant issued under section 47 commits an offence and is liable on summary conviction to a fine not exceeding $10,000 in the case of an individual, or $30,000 in the case of a body corporate. Section47F:inserted,on1July1990,bysection3oftheFairTradingAmend

ment Act 1990 (1990 No 42).

47G Commission may require person to supply information or documents

(1)
If the Commission considers it necessary or desirable for the purposesofcarryingoutitsfunctionsandexercisingitspowers under this Act, the Commission may, by notice in writing served on any person, require that person
(a)
tosupplytotheCommission,bywritingsignedbythat personor, inthe caseofabody corporate, by adirector or competent employee or agent of the body corporate, withinthetimeandinthemannerspecifiedinthenotice, anyinformationorclassof information specifiedin the notice; or
(b)
to supply to the Commission, or to a person specified inthenoticeactingonitsbehalfinaccordancewiththe notice,anydocumentorclassofdocumentsspecifiedin the notice.
(2)
Every person who is required to supply information or documentstotheCommissionhasthesameprivilegesinrelationto

the supply of the informationordocuments as witnesseshave in any court. Compare: 1986 No 5 s 98; 1994 No 143 s 138(2)

Section47G:inserted,on8July2003,by section15 oftheFairTradingAmendment Act 2003 (2003 No 31).

47H Notices

(1) Any notice given by the Commission under section 47G is sufficiently given if

(a)
it is in writing; and
(b)
it is
(i)
under the seal of the Commission; or
(ii)
signed by the Chairman of the Commission; or
(iii) signedby1ormoreofthemembersoftheCommission; or (iv) signed by any person purporting to act by direction of the Commission; and
(c)
itisservedinaccordancewith section47I ontheperson or persons primarily concerned or on any person or organisation considered by the Commission to represent the person or persons primarily concerned.

(2) In all courts and in all proceedings under this Act, notices given under section 47G that purport to be signed by, or on behalf of, the Commission or to be sealed with the seal of the Commission must be treated as having been signed or sealed withdueauthorityinaccordancewithsubsection(1)(b)unless the contrary is proved. Compare: 1986 No 5 s 101 Section47H:inserted,on8July2003,by section15 oftheFairTradingAmendment Act 2003 (2003 No 31).

47I Service of notices

(1)
Anynoticethatisauthorisedtobeservedon,orgivento,any personforthepurposesof section47G maybeservedorgiven by
(a)
delivering it to that person; or
(b)
leaving it at
(i)
his or her usual or last known place of residence or business; or
(ii)
at the address specified by him or her in any notice,application,orotherdocumentmade,given, ortenderedtotheCommissionunderthisAct;or
(c)
postingitbyletteraddressedtohimorheratthatplace of residence or business or at that address.
(2)
Ifanynoticeissenttoanypersonbyregisteredletter,then,
(a)
unlessthecontraryisproved,thenoticemustbetreated as having been delivered to him or her when it would have been delivered in the ordinary course of post; and
(b)
in proving the delivery, it is sufficient to prove that the letter was properly addressed and posted.
(3)
Ifthenoticeisrequiredtobeservedonanassociationorbody of persons,
(a)
thenoticemaybeservedonthesecretary,executiveofficer,manager,orotherofficerholdingasimilarposition in the association or body; and
(b)
service on the association or body must, unless otherwise directed by the Commission, be treated as service on all persons who are members of the association or body,orwhoarerepresentedontheassociationorbody by those members.

Compare: 1986 No 5 s 102

Section47I:inserted,on8July2003,by section15 oftheFairTradingAmendment Act 2003 (2003 No 31).

47J Offence to contravene section 47G

(1)
No person may,
(a)
withoutreasonableexcuse,refuseorfailtocomplywith a notice under section 47G; or
(b)
in purported compliance with the notice, supply information,orsupplyadocument,knowingittobefalseor misleading.
(2)
Every person who contravenes subsection (1) commits an offenceandisliableonsummaryconvictiontoafinenotexceeding$10,000inthecaseofanindividual,or$30,000inthecase of a body corporate.
(3)
Proceedings for an offence against subsection (2) may be commenced within 6 months after the matter giving rise to

thecontraventionwasdiscoveredoroughtreasonablytohave been discovered. Compare: 1986 No 5 s 103

Section47J:inserted,on8July2003,by section15 oftheFairTradingAmendment Act 2003 (2003 No 31).

48 Proceedings privileged

(1)
No proceedings, civil or criminal, shall lie against the Commissionforanythingitmaydoorfailtodointhecourseofthe exercise or intended exercise of its functions under this Act unless it is shown that the Commission acted without reasonable care or in bad faith.
(2)
No proceedings, civil or criminal, lie against any member of the Commission, or any officer or employee of the Commission, or any member of a committee of the Commission, for anything that person may do or say or fail to do or say in the courseoftheoperationsoftheCommission,unlessitisshown that the person acted in bad faith.
(3)
Nothing in subsections (1) and (2) applies in respect of proceedings for
(a)
an offence against section 78 or section 78A or section 105 or section 105A of the Crimes Act 1961; or
(b)
the offence of conspiring to commit an offence against section78 or section78A or section105 or section105A of the Crimes Act 1961; or
(c)
the offence of attempting to commit an offence against section78 or section78A or section105 or section105A of the Crimes Act 1961.
(4)
Section59(3) oftheCrownEntitiesAct2004(whichprovides that a statutory entity may bring an action against a member for breach of an individual duty) does not apply, unless it is shown by the Commissionthat the person acted inbad faith.
(5)
Sections122to126 oftheCrownEntitiesAct2004applyasif theconductforwhichapersonmaybeindemnifiedorinsured under those sections were conduct that is covered by the protection from liability in this section.
(6)
Thissectioncontainsanexceptionto section121 oftheCrown Entities Act 2004.

Section 48(2): substituted, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).

Section48(4): added,on25January2005,bysection200oftheCrownEntities Act 2004 (2004 No 115).

Section48(5): added,on25January2005,bysection200oftheCrownEntities Act 2004 (2004 No 115).

Section48(6): added,on25January2005,bysection200oftheCrownEntities Act 2004 (2004 No 115).

48A Sharing of information and documents with Financial Markets Authority or Takeovers Panel

(1)
The Commission may provide to the Financial Markets Authority or the Takeovers Panel any information, or a copy of any document, that the Commission
(a)
holds in relation to the exercise of the Commission’s powers, or the performance of its functions and duties, in respect of this Act; and
(b)
considers may assist the Financial Markets Authority or the Takeovers Panel in the exercise of its powers, or the performance of its functions and duties, under the Financial Markets Authority Act 2011, any enactment listedin Schedule1 ofthatAct,the TakeoversAct1993 , or the Takeovers Code in force under that Act.
(2)
The Commission may use any information, or a copy of any document, provided to it by the Financial Markets Authority under section30 oftheFinancialMarketsAuthorityAct2011 orbytheTakeoversPanelunder section15B oftheTakeovers Act 1993 in the Commission’s exercise of its powers, or the performanceofitsfunctionsandduties,inrespectofthisAct.
(3)
This section applies despite anything to the contrary in any contract, deed, or document.
(4)
Nothing in this section limits the Privacy Act 1993.

Section48A:substituted,on1May2011,by section82 oftheFinancialMarkets Authority Act 2011 (2011 No 5).

49 Repeals and consequential amendments

(1)
The enactment specified in Schedule 1 is hereby amended in the manner indicated in that schedule.
(2)
The enactments specified in Part A of Schedule 2 are hereby repealed with effect from the commencement of this Act.
(3)
The enactments specified in Part B of Schedule 2 are hereby repealed with effect from 1 May 1987.
(4)
The orders and notices specified in Schedule 3 are hereby re voked.

50 Saving of other laws

(1)
NothinginthisActlimitsoraffectstheoperationofanyother Act.
(2)
Nothing in this Act limits or affects any liability that any person may incur under any rule of law or enactment other than this Act. Compare: 1978 No 103 s 65; Trade Practices Act 1974 s 75 (Aust)

51 Application of Act to goods that are, or may be, exported to China

(1)
This Act applies to conduct or representations relating to goods that are, or may be, exported from New Zealand pursuant to the Conformity Cooperation Agreement in the same wayasthisActappliestogoodssuppliedwithinNewZealand as follows:
(a)
section10 appliestoconductrelatingtogoodsthatare, or may be, exported from New Zealand for supply to China:
(b)
section 13 applies to representations relating to goods that are, or may be, exported from New Zealand for supply to China:
(c)
a contravention of section 10 or 13 is an offence under section 40 and may authorise a warrant being issued in New Zealand under section 47(2) to search a place in New Zealand if the contravention relates to goods that are, or may be, exported from New Zealand for supply to China.
(2)
In this section, Conformity Cooperation Agreement means the Agreement between theGovernment of New Zealandand theGovernmentofthePeople’sRepublicofChinaonCooperation in the Field of Conformity Assessment in Relation to Electrical and Electronic Equipment and Components, which is Annex 14 of the Free Trade Agreement between the Gov

ernment of New Zealand and the Government of the People’s Republic of China done at Beijing on 7 April 2008. Section51: added,on1October2008,bysection6oftheFairTradingAmend

ment Act 2008 (2008 No 52).

Schedule 1 s 49(1) Enactment amended

[Repealed]

Schedule1: repealed,on1April1993,bysection62(1)oftheHealthandSafety in Employment Act 1992 (1992 No 96).

Schedule 2 s 49(2), (3) Enactments repealed

Part A

Commerce Act 1986 (1986 No 5)

Amendment(s) incorporated in the Act(s) .

Consumer Information Act 1969 (1969 No 12) Employment Agents Act 1908 (1908 No 174) (RSVol 17, p 201) Employment Agents Amendment Act 1960 (1960 No 24) (RS

Vol 17, p 209)

Employment Agents Amendment Act 1967 (1967 No 30) (RS Vol 17, p 210) Employment Agents Amendment Act 1975 (1975 No 74) (RS

Vol 17, p 211) Fertilisers Act 1982 (1982 No 134)

Amendment(s) incorporated in the Act(s).

Labour Department Act 1954 (1954 No 71)

Amendment(s) incorporated in the Act(s).

Medicines Act 1981 (1981 No 118)

Amendment(s) incorporated in the Act(s) .

Merchandise Marks Act 1954 (1954 No 43) (RS Vol 10, p 113) Unsolicited Goods and Services Act 1975 (1975 No 46)

Amendment(s) incorporated in the Act(s) .

Part B Safety of Children’s Night Clothes Act 1977 (1977 No 87) Wool Labelling Act 1949 (1949 No 41) (RS Vol 11, p 903)

Schedule 3 s 49(4) Orders and notices revoked Clothing Marking Order 1956 (SR 1956/118) Consumer Information (Quantity) Notice 1971 (SR 1971/150) Consumer Information (Quantity) Notice 1973 (SR 1973/139) Dry Cell Batteries Marking Order (No 2) 1957 (SR 1957/205) Footwear Marking Order 1955 (SR 1955/208)

Fair Trading Act 1986 Reprinted as at1 May 2011
Fair Trading Amendment Act 1997
Public Act Date of assent Commencement 1997 No 43 28 July 1997 28 July 1997
1 Short Title This Act may be cited as the Fair Trading Amendment Act 1997, and is part of the Fair Trading Act 1986 (“the principal Act”).
6 (1) (2) Transitional provisions relating to regulations in force before commencement of this Act Regulations made under section 27 or section 28 of the principal Act (as in force before the commencement of this Act) andthatwere inforceimmediatelybeforethecommencement of this Act are deemed to have been made under section 27 of the principal Act (as substituted by this Act). Regulationsmadeundersection29orsection30orunderboth sections 29 and 30 of the principal Act (as in force before the commencement of this Act) and that were in force immediatelybeforethecommencementofthisActaredeemedtohave beenmadeundersection29oftheprincipalAct(assubstituted by this Act).

Contents

1 General

2 Status of reprints

3 How reprints are prepared

4 Changesmadeundersection17CoftheActsandRegulations Publication Act 1989

5 List of amendments incorporated in this reprint (most recent first)

Notes

1 General

This is a reprint of the Fair Trading Act 1986. The reprint incorporates all the amendments to the Act as at 1 May 2011, asspecifiedinthelistofamendmentsattheendofthesenotes.

Relevantprovisionsofany amending enactments thatcontain transitional, savings, or application provisions that cannot be compiled in the reprint are also included, after the principal enactment, in chronological order. For more information, see http://www.pco.parliament.govt.nz/reprints/ .

2 Status of reprints

Under section 16D of the Acts and Regulations Publication Act 1989, reprints are presumed to correctly state, as at the dateofthereprint,thelawenactedbytheprincipalenactment and by the amendments to that enactment. This presumption applies even though editorial changes authorised by section 17C of the Acts and Regulations Publication Act 1989 have been made in the reprint.

This presumption may be rebutted by producing the official volumes of statutes or statutory regulations in which the principal enactment and its amendments are contained.

3 How reprints are prepared

A number of editorial conventions are followed in the preparation of reprints. For example, the enacting words are not included in Acts, and provisions that are repealed or revoked are omitted.

57

For a detailed list of the editorial conventions, see http://www.pco.parliament.govt.nz/editorial-conventions/ or Part8ofthe Tables of New Zealand Acts and Ordinances and Statutory Regulations and Deemed Regulations in Force.

Changes made under section 17C of the Acts and Regulations Publication Act 1989

Section17C oftheActsandRegulationsPublicationAct1989 authorises the making of editorial changes in a reprint as set out in sections 17D and 17E of that Act so that, to the extent permitted, the format and style of the reprinted enactment is consistent with current legislative drafting practice. Changes thatwould alter the effect of the legislation are not permitted.

Anewformatoflegislationwasintroducedon1January2000. Changestolegislativedraftingstylehavealsobeenmadesince 1997, and are ongoing. To the extent permitted by section 17C of the Acts and Regulations Publication Act 1989, all legislationreprintedafter1January2000isinthenewformat forlegislationandreflectscurrentdraftingpracticeatthetime of the reprint.

In outline, the editorial changes made in reprints under the authority of section 17C of the Acts and Regulations Publication Act 1989 are set out below, and they have been applied, where relevant, in the preparation of this reprint:

omission of unnecessary referential words (such as “of this sectionand “of this Act”)

  • typefaceandtypesize(TimesRoman,generallyin11.5 point)
    • layout of provisions, including:
      • indentation
      • positionofsectionheadings(eg,thenumberand heading now appear above the section)
  • formatofdefinitions(eg,thedefinedtermnowappears in bold type, without quotation marks)
  • format of dates (eg, a date formerly expressed as “the 1stdayofJanuary1999”isnowexpressedas“1January 1999”)
  • positionofthedateofassent(itnowappearsonthefront page of each Act)
  • punctuation (eg, colons are not used after definitions)
  • Partsnumberedwithromannumeralsarereplacedwith arabic numerals, and all cross-references are changed accordingly
    • case and appearance of letters and words, including:
      • format of headings (eg, headings where each word formerly appeared with an initial capital letter followed by small capital letters are amended so that the heading appears in bold, with only the first word (and any proper nouns) appearing with an initial capital letter)
      • small capital letters in section and subsection references are now capital letters
  • schedules are renumbered (eg, Schedule 1 replaces First Schedule), and all cross-references are changed accordingly
  • running heads (the information that appears at the top of each page)
  • format of two-column schedules of consequential amendments, and schedules of repeals (eg, they are rearranged into alphabetical order, rather than chronologican( �/span>.

List of amendments incorporated in this reprint (most recent first)

Financial Markets Authority Act 2011 (2011 No 5): section 82 Accident Compensation Amendment Act2010 (2010 No 1): section 5(1)(b) Disputes Tribunals Amendment Act 2009 (2009 No 22): section 8 Fair Trading Amendment Act 2008 (2008 No 52) Fair Trading Amendment Act 2006 (2006 No 49) Crown Entities Act 2004 (2004 No 115): section 200 Fair Trading Amendment Act (No 2) 2003 (2003 No 34) Fair Trading Amendment Act 2003 (2003 No 31) Trade Marks Act 2002 (2002 No 49): section 201 Injury Prevention, Rehabilitation, and Compensation Act 2001 (2001 No 49):

section 337(1) Fair Trading Amendment Act 2001 (2001 No 20)

Fair Trading Amendment Act 2000 (2000 No 64) Trade Marks Amendment Act 1999 (1999 No 121): section 8(1) Fair Trading Amendment Act 1997 (1997 No 43) Customs and Excise Act 1996 (1996 No 27): section 289(1) Newspapersand Printers Act Repeal Act 1995 (1995No 13): section 4(3) Fair Trading Amendment Act 1994 (1994 No 124) Company Law Reform (Transitional Provisions) Act 1994 (1994 No 16):

section 2 Health and Safety in Employment Act 1992 (1992 No 96): section 62(1) District Courts Amendment Act 1991 (1991 No 61): section 19(1) Fair Trading Amendment Act 1990 (1990 No 42) Disputes Tribunals Act 1988 (1988 No 110): section 82(2) Trade Marks Amendment Act 1987 (1987 No 156): section 33(1)

Wellington, New Zealand: Published under the authority of the New Zealand Government—2011


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N° WIPO Lex NZ115