Consumer Affairs Legislation Amendment (Reform) Act 2010

i Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1 Purposes 1 2 Commencement 3 PART 2—AMENDMENTS AND REPEALS RELATED TO UNCOLLECTED GOODS, INTRODUCTION AGENTS AND ACCOMMODATION PROVIDERS 4 Division 1—Disposal of uncollected goods 4 3 New Part 2D inserted into Fair Trading Act 1999 4 PART 2D—DISPOSAL OF UNCOLLECTED GOODS 4 Division 1—Preliminary 4 32ZP Definitions 4 32ZQ Uncollected goods 6 32ZR Relevant charge 7 32ZS Application 8 32ZT Common law 10 Division 2—Disposal of uncollected goods 10 32ZU Receiver may dispose of uncollected goods 10 32ZV Payment of relevant charge 11 32ZW Low value uncollected goods 11 32ZX Medium value uncollected goods 12 32ZY High value uncollected goods 13 32ZZ Additional requirement for disposal of motor vehicles 14 32ZZA Details of registered operator 14 32ZZB Perishable goods 16 32ZZC Form of notices under this Division 16 32ZZD Giving notice 17 -- 1 of 154 -- Section Page ii Division 3—Applications to court, court order and related provisions 17 32ZZE Application to court for disposal order 17 32ZZF Other applications to court 18 32ZZG Court orders 18 32ZZH Payment of relevant charge 19 32ZZI Effect of other proceeding 19 Division 4—Miscellaneous 20 32ZZJ Proceeds of sale 20 32ZZK Records held by receiver 20 32ZZL Good title 22 32ZZM Receiver to provide purchaser of motor vehicle with receipt 22 32ZZN Application of other provisions 23 4 New clause 21 inserted into Schedule 3 to the Fair Trading Act 1999 24 21 Transitional provisions for repeal of Disposal of Uncollected Goods Act 1961 24 5 Disposal of Uncollected Goods Act 1961 repealed 25 6 Consequential amendment to Road Safety Act 1986 25 Division 2—Introduction agents 25 7 New Part 5AA inserted into Fair Trading Act 1999 25 PART 5AA—INTRODUCTION AGENTS 25 Division 1—Interpretation 25 93AA Definitions 25 93AB Meaning of introduction agent 26 93AC Meaning of introduction service 26 93AD Who carries on a business? 27 93AE Introduction agency not to use sex work service premises 27 Division 2—Persons who are not introduction agents 28 93AF Effect of this Division 28 93AG Exemption for activities with a community purpose 28 93AH Exemption for non-profit activities 28 93AI Exemption for publishers of advertisements etc. 29 93AJ Exemption for information service providers 29 93AK Exemption for organisers of dances etc. 31 93AL Other exemptions 32 -- 2 of 154 -- Section Page iii Division 3—Persons who must not act as introduction agents 32 93AM Certain persons not to act as introduction agents 32 Division 4—Permission for disqualified persons to act as introduction agents 35 93AN Disqualified person may apply for permission to act as an introduction agent 35 93AO Permission to act as an introduction agent 35 93AP Authority may impose conditions on permission 36 93AQ Application for review 37 Division 5—Introduction agreements 38 93AR What must an introduction agreement contain? 38 93AS Restriction on prepayments 39 93AT Person may withdraw from agreement within 3 days without penalty 40 8 Schedule 1A inserted into Fair Trading Act 1999 41 SCHEDULE 1A—You have a Right to withdraw from this Agreement within 3 Days 41 9 Consequential amendments 42 10 Repeal of Introduction Agents Act 1997 42 11 Consequential Amendments to Business Licensing Authority Act 1998 43 Division 3—Accommodation providers 43 12 New Part 5C inserted into Fair Trading Act 1999 43 PART 5C—LIABILITY OF ACCOMMODATION PROVIDERS 43 93O Definitions 43 93P Application of common law 46 93Q Liability of accommodation providers under this Part 46 93R Limitation on accommodation providers' liability for property of guest 46 93S Accommodation provider to provide safekeeping service 47 93T Notice about this Part 49 93U Innkeeper's lien 50 93V Part 11 not to apply 50 13 New Schedule 2A inserted into Fair Trading Act 1999 51 SCHEDULE 2A—Notice 51 14 Carriers and Innkeepers Act 1958 52 -- 3 of 154 -- Section Page iv PART 3—AMENDMENTS TO GOODS ACT 1958 AND CONSEQUENTIAL REPEALS 53 15 Repeals and savings 53 16 Provisions relating to bills of lading repealed 53 PART II—CONSIGNEES, MERCANTILE AGENTS, DOCUMENTS OF TITLE TO GOODS". 53 17 New Parts IV and IVA inserted into Goods Act 1958 53 PART IV—VIENNA CONVENTION 53 84 Part binds the Crown 53 85 Convention 54 86 Convention to have the force of law 54 87 Convention to prevail in event of inconsistency 54 88 Evidence of certain matters 54 PART IVA—SEA-CARRIAGE DOCUMENTS 55 Division 1—Preliminary 55 89 Definitions 55 90 Electronic and computerised sea-carriage documents 58 91 Application where goods have ceased to exist, or cannot be identified 59 Division 2—Rights under contracts of carriage 59 92 Transfer of rights 59 93 Extinguishment of previous rights 61 Division 3—Liabilities under contracts of carriage 62 94 Transfer of liabilities 62 95 Liability of original parties 63 Division 4—Evidence 63 96 Shipment under bills of lading 63 18 New sections 124 and 125 inserted into Part VI 64 124 Saving provision for repeal of Sale of Goods (Vienna Convention) Act 1987 64 125 Saving provision for repeal of Sea-Carriage Documents Act 1998 64 19 New Schedule substituted 65 SCHEDULE—United Nations Convention on Contracts for the International Sale of Goods 65 20 Sale of Goods (Vienna Convention) Act 1987 98 21 Sea-Carriage Documents Act 1998 98 -- 4 of 154 -- Section Page v PART 4—AMENDMENTS TO CONSUMER AFFAIRS LEGISLATION AMENDMENT ACT 2010 99 22 Commencement of Consumer Affairs Legislation Amendment Act 2010 99 23 New Part 5B inserted into Fair Trading Act 1999 99 93L Offence to purchase debt for the purpose of collection 101 93M Prohibited debt collection practices 102 93N Additional remedy for contraventions of section 93M 106 24 New section 18A inserted 107 18A Provisions relating to enforcement and remedies amended 107 25 Power to delegate—Owners Corporations Act 2006 107 26 Notice of meetings—Owners Corporations Act 2006 107 27 Updated reference to prostitute and prostitution in Prostitution Control Act 1994 107 28 New section 3B inserted into Prostitution Control Act 1994 107 29 New section 18A inserted into Prostitution Control Act 1994 108 30 Amendment of licence—Prostitution Control Act 1994 108 31 New section 52AAA inserted into Prostitution Control Act 1994 108 32 Entry to licensed premises by police—Prostitution Control Act 1994 108 33 Power to serve an infringement notice under Prostitution Control Act 1994 108 34 Amendments to Prostitution Control Act 1994 109 PART 5—ESTATE AGENTS ACT 1980 110 35 Definitions 110 36 Director may approve registered education and training organisations 110 37 Auctioneers of real estate 111 38 Application for estate agent's licence 111 39 The Register 111 40 Section 35 amended 111 41 Name of the estate agency business 112 42 New section 38 substituted 112 38 Offence to pretend to be a licensed estate agent 112 43 Sections 39 and 40 repealed 112 44 Advertising 112 45 Sections relating to continuing professional development and employees statements repealed 113 46 Restriction on agent purchasing property 113 47 Annual audit of trust accounts 113 48 Regulations 114 -- 5 of 154 -- Section Page vi 49 Heading to Part IX amended 115 50 New section 102 inserted at end of Part IX 116 102 Authorised financial institutions 116 PART 6—AMENDMENTS TO CONVEYANCERS ACT 2006 117 51 Name of conveyancing business 117 52 Displaying information and licence at places of business 117 53 Letterhead 117 54 Annual audit of trust records 117 55 Annual record of trust records audit or statutory declaration 117 56 Application of Fair Trading Act 1999 118 PART 7—AMENDMENTS TO SALE OF LAND ACT 1962 119 57 Sale of land prior to approval of plan 119 58 Purchaser may call for a transfer on giving a mortgage back 120 59 Power of purchaser to terminate a contract for sale of land 120 60 Savings provision inserted into Part 3 121 51 Amendment to section 9AA—Consumer Affairs Legislation Amendment (Reform) Act 2010 121 PART 8—STANDARDISATION OF INFRINGEMENTS POWERS IN CONSUMER ACTS 122 61 Funerals Act 2006 122 81A Infringement notices 122 62 Owners Corporations Act 2006 123 203A Infringement notices 123 63 Travel Agents Act 1986 123 64 Residential Tenancies Act 1997 124 65 Retirement Villages Act 1986 124 42B Infringement notices 124 66 Sale of Land Act 1962 125 48B Infringement notices 125 PART 9—AMENDMENTS TO FAIR TRADING ACT 1999 126 67 Small claim commenced in a court 126 68 Section 143 amended 126 69 Defences 126 70 New sections 162AA and 162AB inserted 127 162AA Prohibited debt collection practices 127 162AB Additional remedy for contraventions of section 162AA 131 71 Sections 162AA and 162AB repealed 132 -- 6 of 154 -- Section Page vii 72 Savings and transitional 132 22 Transitional provision for repeal of Carriers and Innkeepers Act 1958 132 23 Transitional provision for repeal of Part IVA of Landlord and Tenant Act 1958 133 PART 10—AMENDMENT TO THE BUSINESS LICENSING AUTHORITY ACT 1998 134 73 Constitution of Authority 134 PART 11—AMENDMENTS TO PROSTITUTION CONTROL ACT 1994 135 74 Persons to answer questions in relation to suspected non-licensed sex work service providing business 135 PART 12—MISCELLANEOUS AMENDMENTS AND REPEALS 136 Division 1—Repeal 136 75 Landlord and Tenant Act 1958 136 Division 2—Consequential and other amendments 136 76 Motor Car Traders Act 1986 136 77 Owners Corporations Act 2006 137 78 Residential Tenancies Act 1997 138 Division 4—Consumer Affairs Legislation Amendment (Reform) Act 2010 139 12 Commencement day 139 13 Saving for protected tenants 139 14 Part V leases of prescribed premises to be transitioned to Residential Tenancies Act 1997 except in certain circumstances 139 79 Travel Agents Act 1986 140 33 Licensee must supervise conduct of business 140 80 Victorian Civil and Administrative Tribunal Act 1998 140 51ADA Tribunal may make orders for costs incurred by owners corporations 140 81 Consequential amendments for change of short title of Prostitution Control Act 1994 141 Division 3—Repeal of amending Act 141 82 Repeal of amending Act 141 __________________ -- 7 of 154 -- Section Page viii SCHEDULE—Consequential amendments for change of short title of Prostitution Control Act 1994 142 1 Business Licensing Authority Act 1998 142 2 Confiscation Act 1997 142 3 Consumer Affairs Legislation Amendment (Reform) Act 2010 142 4 Crimes Act 1958 143 5 Criminal Procedure Act 2009 143 6 Fair Trading Act 1999 143 7 Introduction Agents Act 1997 143 8 Police Regulation Act 1958 144 9 Public Health and Wellbeing Act 2008 144 10 Sentencing Act 1991 144 11 Serious Sex Offenders (Detention and Supervision) Act 2009 144 12 Sex Offenders Registration Act 2004 145 13 Summary Offences Act 1966 145 ═══════════════ ENDNOTES 146 -- 8 of 154 -- 1 Consumer Affairs Legislation Amendment (Reform) Act 2010 † No. 63 of 2010 [Assented to 28 September 2010] The Parliament of Victoria enacts: PART 1—PRELIMINARY 1 Purposes The main purposes of this Act are— (a) to repeal the Disposal of Uncollected Goods Act 1961 and insert a new framework for dealing with the disposal of uncollected goods into the Fair Trading Act 1999; Victoria -- 9 of 154 -- Part 1—Preliminary Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 2 (b) to repeal the Introduction Agents Act 1997 and insert a compliance framework for introduction agents into the Fair Trading Act 1999; (c) to repeal the Carriers and Innkeepers Act 1958 and insert provisions relating to the liability of accommodation providers into the Fair Trading Act 1999; (d) to re-enact the Sale of Goods (Vienna Convention) Act 1987 and the Sea- Carriage Documents Act 1998 in the Goods Act 1958; (e) to amend the Consumer Affairs Legislation Amendment Act 2010 to clarify certain provisions; (f) to make further miscellaneous amendments to the Estate Agents Act 1980, the Conveyancers Act 2006, the Fair Trading Act 1999, the Motor Car Traders Act 1986, the Owners Corporations Act 2006, the Sale of Land Act 1962 and the Travel Agents Act 1986 to modernise certain provisions and generally improve the operation of those Acts; (g) to amend the Funerals Act 2006, the Owners Corporations Act 2006, the Residential Tenancies Act 1997, the Retirement Villages Act 1986, the Sale of Land Act 1962 and the Travel Agents Act 1986 in relation to the powers for issuing infringement notices under those Acts; (h) to repeal the Landlord and Tenant Act 1958 and insert transitional and savings provisions into other Acts. s. 1 -- 10 of 154 -- Part 1—Preliminary Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 3 2 Commencement (1) This Part and Part 4 come into operation on the day after the day on which this Act receives the Royal Assent. (2) Section 81 and the Schedule come into operation on the day on which section 42 of the Consumer Affairs Legislation Amendment Act 2010 comes into operation. (3) Subject to subsection (4), the remaining provisions of this Act come into operation on a day or days to be proclaimed. (4) If a provision referred to in subsection (3) does not come into operation before 1 September 2011, it comes into operation on that day. __________________ s. 2 -- 11 of 154 -- Part 2—Amendments and Repeals Related to Uncollected Goods, Introduction Agents and Accommodation Providers Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 4 PART 2—AMENDMENTS AND REPEALS RELATED TO UNCOLLECTED GOODS, INTRODUCTION AGENTS AND ACCOMMODATION PROVIDERS Division 1—Disposal of uncollected goods 3 New Part 2D inserted into Fair Trading Act 1999 After Part 2C of the Fair Trading Act 1999 insert— "PART 2D—DISPOSAL OF UNCOLLECTED GOODS Division 1—Preliminary 32ZP Definitions In this Part— bailment includes bailment for reward, bailment in the course of business, gratuitous bailment, involuntary bailment and any sub-bailment; court means any court of competent jurisdiction and includes the Tribunal; disposal costs means the costs incurred by the receiver for the disposal of goods under Division 2; high value, for goods, means the goods are of a value more than or equal to— (a) in the case of a motor vehicle, $200 or, if another value is prescribed by the regulations, that other value; or (b) in any other case, $5000 or, if another value is prescribed by the regulations, that other value; See: Act No. 16/1999. Reprint No. 4 as at 11 June 2009 and amending Act Nos 45/2009, 68/2009, 1/2010 and 11/2010. LawToday: www. legislation. vic.gov.au s. 3 -- 12 of 154 -- Part 2—Amendments and Repeals Related to Uncollected Goods, Introduction Agents and Accommodation Providers Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 5 low value, for goods, means the goods are of a value less than $200 or, if another value is prescribed by the regulations, that other value; medium value, for goods other than motor vehicles, means the goods are— (a) of a value equal to or more than $200 or, if another value is prescribed by the regulations, that other value; and (b) less than $5000 or, if another value is prescribed by the regulations, that other value; motor vehicle has the same meaning as it has in the Road Safety Act 1986; owner, in relation to a motor vehicle, means the registered operator within the meaning of the Road Safety Act 1986; provider means the person who gives possession of goods under a bailment (whether or not the person is the owner of the goods); public auction includes an auction conducted on the Internet; publicly registered interest means an interest in goods that is recorded— (a) in the register within the meaning of the Personal Property Securities Act 2009 of the Commonwealth if the goods are described by serial number in that register; or (b) in any register prescribed by the regulations; s. 3 -- 13 of 154 -- Part 2—Amendments and Repeals Related to Uncollected Goods, Introduction Agents and Accommodation Providers Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 6 receiver means the person who takes possession of goods under a bailment; Registrar means the Registrar appointed under section 4 of the Unclaimed Money Act 2008; relevant charge has the meaning given by section 32ZR; uncollected goods has the meaning given by section 32ZQ. 32ZQ Uncollected goods (1) Goods under bailment are uncollected goods if— (a) the goods are ready for delivery to the provider in accordance with the terms of the bailment, but the provider has not taken delivery of the goods and has not given directions as to their delivery; or (b) the receiver is required to give notice to the provider when the goods are ready for delivery but cannot locate or communicate with the provider; or (c) the receiver can reasonably expect to be relieved of any duty to safeguard the goods on giving notice to the provider but cannot locate or communicate with the provider; or (d) the provider has not paid the relevant charge payable to the receiver in relation to the goods within a reasonable time after being informed by the receiver that the goods are ready for delivery. (2) Goods are not uncollected goods for the purposes of subsection (1)(a) if the provider's failure to take delivery arises from— s. 3 -- 14 of 154 -- Part 2—Amendments and Repeals Related to Uncollected Goods, Introduction Agents and Accommodation Providers Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 7 (a) the receiver refusing to make delivery; or (b) the receiver preventing the provider from taking delivery. 32ZR Relevant charge (1) The relevant charge is the amount payable by the provider to the receiver for goods under bailment and payment of which entitles the provider to take delivery of the goods. (2) Unless determined otherwise by a court order, the amount payable to the receiver is the sum of the following— (a) for any carriage or storage of the goods or for any repairs, cleaning, treatment or other work done in connection with the goods— (i) the amount agreed to by the provider and receiver as the charge payable to the receiver; or (ii) in the absence of an agreement, an amount that is reasonable; (b) the amount of costs for any storage, maintenance or insurance of the goods incurred by the receiver from— (i) the giving of a notice under Division 2 of the receiver's intention to dispose of the goods until the disposal of the goods; or (ii) the making of an application for a court order under Division 3 until the disposal of the goods. s. 3 -- 15 of 154 -- Part 2—Amendments and Repeals Related to Uncollected Goods, Introduction Agents and Accommodation Providers Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 8 32ZS Application (1) This Part applies to the possession of goods under a bailment regardless of whether possession was taken before or after the commencement of this Part. (2) This Part does not apply to— (a) goods left behind at the end of a tenancy to which the Residential Tenancies Act 1997 applies; (b) unsolicited goods; (c) second-hand goods received in pawn under the Second-Hand Dealers and Pawnbrokers Act 1989; (d) any unclaimed goods to which section 122 of the Police Regulation Act 1958 applies; (e) any unclaimed non-monetary prize to which section 7.4.12 of the Gambling Regulation Act 2003 applies; (f) any goods or lost property within the meaning of section 251A of the Transport (Compliance and Miscellaneous) Act 1983; (g) any vehicle that is able to be moved or impounded under clause 4 of Schedule 4 to the Road Management Act 2004; (h) any goods that are the subject of an order for forfeiture to which section 134 of the Petroleum (Submerged Lands) Act 1982 applies; (i) any goods seized to which section 171 of the Gene Technology Act 2001 applies; s. 3 -- 16 of 154 -- Part 2—Amendments and Repeals Related to Uncollected Goods, Introduction Agents and Accommodation Providers Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 9 (j) any motor vehicle not collected or released to which section 84Z of the Road Safety Act 1986 applies; (k) any unclaimed property to which section 16 of the National Gallery of Victoria Act 1966 applies; (l) any unclaimed property to which section 51 of the Libraries Act 1988 applies; (m) any unclaimed property to which section 25 of the Museums Act 1983 applies; (n) any goods forfeited or recovered by the Magistrates' Court of Victoria to which section 137 of the Magistrates' Court Act 1989 applies; (o) uncollected goods under any other Act that is prescribed for the purposes of this paragraph. (3) Subject to the exclusions in subsection (2), this Part applies in addition to any other remedy or right that may be available to dispose of uncollected goods under any other Act. (4) This Part applies to the disposal of uncollected goods— (a) if there is no agreement between the provider and the receiver about their disposal; or (b) if there is an agreement about their disposal, only in respect of matters not dealt with by the agreement. (5) This Part does not apply to a lease or other agreement to which Part IVA of the Landlord and Tenant Act 1958 applied s. 3 -- 17 of 154 -- Part 2—Amendments and Repeals Related to Uncollected Goods, Introduction Agents and Accommodation Providers Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 10 immediately before the commencement of section 75 of the Consumer Affairs Legislation Amendment (Reform) Act 2010. (6) For the avoidance of doubt, this Part does not affect the right of a provider and receiver to make an agreement about the disposal of uncollected goods. 32ZT Common law The common law relating to the bailment of goods remains in force to the extent to which it is not affected by this Part and a person is entitled to exercise any rights that the person may have at common law in relation to the recovery of goods or compensation for the loss of or damage to goods except to the extent to which this Part otherwise provides. Division 2—Disposal of uncollected goods 32ZU Receiver may dispose of uncollected goods (1) Subject to subsection (2), a receiver may dispose of uncollected goods under this Division. (2) A receiver must not dispose of uncollected goods if— (a) a dispute exists between the provider and receiver regarding the relevant charge, including such a dispute about the condition of the goods or the nature or quality of any repairs or other work done in connection with the goods; and (b) an application has been made to the court under section 32ZZF. s. 3 -- 18 of 154 -- Part 2—Amendments and Repeals Related to Uncollected Goods, Introduction Agents and Accommodation Providers Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 11 (3) Subsection (2) does not prevent the receiver from giving notice under this Division of the receiver's intention to dispose of the uncollected goods. (4) A receiver who disposes of uncollected goods in accordance with this Division is not liable in relation to the goods by reason of the disposal. 32ZV Payment of relevant charge The provider, the owner of the uncollected goods or any other person with an interest in the goods is entitled, on payment of the relevant charge, to delivery of the goods at any time before their disposal. 32ZW Low value uncollected goods (1) A receiver may dispose of low value uncollected goods if— (a) the receiver has given the provider written notice of the receiver's intention to dispose of the goods; and (b) 28 days have elapsed since the giving of the notice and the provider has not taken delivery of the goods or given directions as to their delivery. (2) A receiver may dispose of low value uncollected goods if— (a) the receiver cannot locate or communicate with the provider in order to provide written notice under subsection (1) after making reasonable attempts to do so; and (b) 60 days have elapsed since the goods became uncollected goods. s. 3 -- 19 of 154 -- Part 2—Amendments and Repeals Related to Uncollected Goods, Introduction Agents and Accommodation Providers Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 12 (3) Goods may be disposed of under this section by sale, destruction, appropriation or any other means. 32ZX Medium value uncollected goods (1) A receiver may dispose of medium value uncollected goods if— (a) the receiver has given written notice of the receiver's intention to dispose of the goods to the following— (i) the provider; and (ii) in a case where the provider and the owner are different people and the receiver is aware of that fact, the owner of the goods; and (b) 28 days have elapsed since the giving of the notice and the provider has not taken delivery of the goods or given directions as to their delivery. (2) A receiver may dispose of medium value uncollected goods if— (a) the receiver cannot locate or communicate with the provider or the owner of the goods in order to provide written notice under subsection (1) after making reasonable attempts to do so; and (b) 90 days have elapsed since the goods became uncollected goods. (3) Goods must be disposed of under this section by public auction or by private sale and with reasonable care to ensure that the goods are sold for the best price that can be reasonably obtained, having regard to the circumstances existing when the goods are sold. s. 3 -- 20 of 154 -- Part 2—Amendments and Repeals Related to Uncollected Goods, Introduction Agents and Accommodation Providers Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 13 32ZY High value uncollected goods (1) A receiver may dispose of high value uncollected goods if— (a) the receiver has given written notice of the receiver's intention to dispose of the goods to the following— (i) the provider; and (ii) in a case where the provider and the owner are different people and the receiver is aware of that fact, the owner of the goods; and (iii) any person who has a publicly registered interest in the goods; and (iv) any other person having or claiming an interest in the goods of which the receiver is aware; and (b) 28 days have elapsed since giving the notice and neither of the following persons have taken delivery of the goods or given directions as to their delivery— (i) the provider; or (ii) the owner of the goods. (2) A receiver may dispose of high value uncollected goods if— (a) the receiver cannot locate or communicate with the provider or the owner of the goods in order to provide written notice under subsection (1) after making reasonable attempts to do so; and s. 3 -- 21 of 154 -- Part 2—Amendments and Repeals Related to Uncollected Goods, Introduction Agents and Accommodation Providers Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 14 (b) 180 days have elapsed since the goods became uncollected goods. (3) Goods must not be disposed of under this section otherwise than by way of public auction that is either— (a) advertised at least 7 days in advance; or (b) held over a period of at least 7 days. 32ZZ Additional requirement for disposal of motor vehicles A receiver must not dispose of a motor vehicle that is of a high value unless the receiver has obtained in relation to that motor vehicle a written search result under section 170(2)(b) of the Personal Property Securities Act 2009 of the Commonwealth. Penalty: 60 penalty units for a natural person; 120 penalty units for a body corporate. 32ZZA Details of registered operator (1) A receiver of a motor vehicle may apply to the Roads Corporation in accordance with subsection (2) for a certificate setting out the details of the registered operator of a motor vehicle. (2) The application must— (a) be accompanied by the fee prescribed (if any) under the Road Safety Act 1986 for an extract from the register within the meaning of that Act; and (b) be in the form of a statutory declaration; and s. 3 s. 3 -- 22 of 154 -- Part 2—Amendments and Repeals Related to Uncollected Goods, Introduction Agents and Accommodation Providers Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 15 (c) include the following particulars— (i) if the receiver is a natural person, the receiver's full name, address and date of birth; (ii) if the receiver is a body corporate, the receiver's business name and address and ABN; (iii) the vehicle's last registration number (if available) and vehicle identification number; (iv) if the receiver intends to dispose of the vehicle under section 32ZY, a copy of any notice given under that section; (v) if the receiver has applied under section 32ZZE for an order to dispose of the vehicle, a copy of the application; (vi) a copy of any written search result obtained under section 32ZZ; (vii) any other information prescribed by the regulations. (3) On receipt of an application under subsection (1), the Roads Corporation, if it is satisfied that the application is being made for the purposes of this Part, must give to the receiver a certificate setting out the details of the registered operator of the motor vehicle. (4) In this section— registered operator has the same meaning as it has in the Road Safety Act 1986; Roads Corporation has the same meaning as it has in the Transport Integration Act 2010; s. 3 -- 23 of 154 -- Part 2—Amendments and Repeals Related to Uncollected Goods, Introduction Agents and Accommodation Providers Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 16 vehicle identification number has the same meaning as it has in the Road Safety Act 1986. 32ZZB Perishable goods (1) A receiver may dispose of perishable uncollected goods by sale, appropriation or destruction if— (a) the receiver has given the provider oral or written notice of the receiver's intention to dispose of the goods; and (b) having regard to the nature and condition of the goods, a reasonable time in which to collect the goods has elapsed since the giving of the notice. Note Perishable goods need not have perished to be disposed of under this subsection. (2) A receiver may dispose of uncollected goods by any means if the goods have perished but must make reasonable attempts to give the provider oral or written notice of the disposal of the goods within a reasonable time after the disposal. 32ZZC Form of notices under this Division A notice of the receiver's intention to dispose of uncollected goods under this Division must specify— (a) the receiver's name; (b) a description of the goods; (c) an address at which the goods may be collected; (d) a statement of the relevant charge payable to the receiver for the goods and, if the relevant charge is likely to s. 3 -- 24 of 154 -- Part 2—Amendments and Repeals Related to Uncollected Goods, Introduction Agents and Accommodation Providers Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 17 increase, a statement of the current relevant charge and an estimate of further charges that will accrue; (e) a statement to the effect that on or after a specified date the goods will be disposed of unless they are collected and the relevant charge paid; (f) if applicable, a statement to the effect that the receiver will retain from the proceeds of sale of the goods an amount not exceeding the sum of the relevant charge and the disposal costs. 32ZZD Giving notice (1) A notice under this Division may be given to the person personally or left at, or sent by post to, the person's last known address. (2) A notice to a person with a publicly registered interest in uncollected goods is taken to have been given if it has been sent by post to the person's address in the register in which the interest is recorded. Division 3—Applications to court, court order and related provisions 32ZZE Application to court for disposal order (1) A receiver may apply to a court for an order to dispose of uncollected goods. (2) The application must— (a) state fully the grounds on which it is made; (b) include the information in section 32ZZC(a) to (d); s. 3 s. 3 -- 25 of 154 -- Part 2—Amendments and Repeals Related to Uncollected Goods, Introduction Agents and Accommodation Providers Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 18 (c) in the case of the disposal of a motor vehicle, include the written search result required under section 32ZZ and any certificate obtained under section 32ZZA. (3) The receiver must give a copy of the application to— (a) the provider, if the provider can be located after reasonable enquiries have been made; (b) the owner of the goods, if the owner can be located after reasonable enquiries have been made; (c) any person with a publicly registered interest in the goods; (d) any other person known by the receiver to have or to be claiming an interest in the goods. 32ZZF Other applications to court If a dispute exists between the provider and the receiver regarding the relevant charge for uncollected goods, either party may apply to a court for an order determining the amount of the relevant charge payable to the receiver. 32ZZG Court orders (1) On an application under section 32ZZE or 32ZZF, the court may make any of the following orders— (a) an order authorising the disposal of specified goods under bailment; (b) an order determining the relevant charge payable to the receiver; s. 3 -- 26 of 154 -- Part 2—Amendments and Repeals Related to Uncollected Goods, Introduction Agents and Accommodation Providers Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 19 (c) any other orders that it considers necessary to give effect to an order made under paragraph (a) or (b). (2) An order under subsection (1)(a) must specify the following— (a) the authorised means of disposal of the goods; (b) the date by which the goods may be disposed of; (c) the amount of the relevant charge payable to the receiver for the goods. 32ZZH Payment of relevant charge If a court order has been made for the disposal of uncollected goods, the provider, the owner of the uncollected goods or any other person with an interest in the goods is entitled, on payment to the receiver of the relevant charge, to delivery of the goods at any time before their disposal. 32ZZI Effect of other proceeding (1) If, at any time before the disposal of uncollected goods under Division 2, a person (other than the provider) starts a proceeding for the recovery of the goods, an order made under section 32ZZG is suspended until the proceeding is decided. (2) If an order is made for the recovery of the goods, the order made under section 32ZZG ceases to have effect. s. 3 -- 27 of 154 -- Part 2—Amendments and Repeals Related to Uncollected Goods, Introduction Agents and Accommodation Providers Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 20 Division 4—Miscellaneous 32ZZJ Proceeds of sale (1) If uncollected goods are sold under Division 2, the receiver is entitled to retain the relevant charge payable to the receiver for the goods and the disposal costs. (2) The balance (if any) of the proceeds of sale are to be dealt with as if the receiver were a business and the money were unclaimed money for the purposes of the Unclaimed Money Act 2008. (3) If the proceeds of the sale are insufficient to pay the relevant charge and disposal costs, the receiver may recover the deficiency from the provider as a debt in court. 32ZZK Records held by receiver (1) Within 7 days after disposing of uncollected goods under Division 2, the receiver must prepare a record of the following particulars— (a) a description of the goods; (b) if the goods were disposed of under section 32ZW, 32ZX, 32ZY or 32ZZB— (i) the date and means of giving notice of intention to dispose of the goods; and (ii) the name and address of any person to whom the notice was given; (c) the date of disposal; (d) the manner of disposal; s. 3 -- 28 of 154 -- Part 2—Amendments and Repeals Related to Uncollected Goods, Introduction Agents and Accommodation Providers Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 21 (e) if the goods were sold— (i) the name and address of the purchaser; (ii) the sale price; (iii) the amount retained by the receiver to cover the relevant charge payable to the receiver for the goods; (iv) the amount retained by the receiver to cover the disposal costs; (f) if the goods were sold by public auction, the name and address of the principal place of business of the auctioneer who sold the goods; (g) if applicable, the amount of the balance of the proceeds of sale paid to the Registrar and the date of payment. Penalty: 10 penalty units for a natural person; 50 penalty units for a body corporate. (2) The receiver must— (a) retain the record for 6 years from the date of disposal; and (b) make the record available on request by any of the following— (i) the provider; (ii) the owner; (iii) any other person claiming to have an interest in the goods. s. 3 -- 29 of 154 -- Part 2—Amendments and Repeals Related to Uncollected Goods, Introduction Agents and Accommodation Providers Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 22 32ZZL Good title (1) The purchaser of goods sold under Division 2 acquires good title to the goods, free from any interest that existed in the goods in favour of another person before the goods were sold, if the purchaser buys the goods— (a) without notice of any failure of the receiver to comply with this Part; and (b) without notice of any defect or want of title of the provider. (2) A receiver who disposes of goods by appropriation in accordance with Division 2 acquires good title to the goods. 32ZZM Receiver to provide purchaser of motor vehicle with receipt (1) If a receiver sells a motor vehicle under Division 2, the receiver must provide the purchaser with a receipt that complies with this section. Penalty: 10 penalty units for a natural person; 50 penalty units for a body corporate. (2) The receipt must contain the following— (a) if the receiver is a natural person, the receiver's full name, address and date of birth; (b) if the receiver is a body corporate, the receiver's business name and address and ABN; s. 3 -- 30 of 154 -- Part 2—Amendments and Repeals Related to Uncollected Goods, Introduction Agents and Accommodation Providers Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 23 (c) the vehicle's last registration number (if available) and vehicle identification number; (d) the purchaser's full name, address and date of birth; (e) the date of sale; (f) the sale price; (g) the name of the owner of the vehicle; (h) any other prescribed information. (3) The receipt must state that the vehicle has been disposed of under this Part and must be signed by both the purchaser and the receiver. 32ZZN Application of other provisions (1) For the purposes of Part 9— (a) a provider is taken to be a consumer; and (b) a receiver is taken to be a trader; and (c) any dispute under this Part between a provider and a receiver is taken to be a consumer and trader dispute. (2) Section 121 does not apply to this Part. (3) Division 2 of Part 11 does not apply to this Part. __________________". s. 3 -- 31 of 154 -- Part 2—Amendments and Repeals Related to Uncollected Goods, Introduction Agents and Accommodation Providers Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 24 4 New clause 21 inserted into Schedule 3 to the Fair Trading Act 1999 After clause 20 of Schedule 3 to the Fair Trading Act 1999 insert— "21 Transitional provisions for repeal of Disposal of Uncollected Goods Act 1961 (1) In this clause— commencement date means the date on which section 5 of the Consumer Affairs Legislation Amendment (Reform) Act 2010 comes into operation; former Act means the Disposal of Uncollected Goods Act 1961 as in force immediately before the commencement date. (2) This clause applies despite section 32ZS(1) and the repeal of the former Act. (3) If, under section 3 of the former Act, a person has given notice of an intention to sell goods, the former Act continues to apply to those goods. (4) If section 3A or 3B of the former Act applies to uncollected goods, the receiver may elect to dispose of those goods in accordance with Part 2D of this Act. (5) Despite the repeal of the former Act, a person who has disposed of uncollected goods under that Act is still required to keep the records required by section 5 of that Act until the expiry of the period specified in that section in relation to those goods. (6) Despite the repeal of the former Act, if an action to reopen a transaction under section 13 of that Act began before the s. 4 -- 32 of 154 -- Part 2—Amendments and Repeals Related to Uncollected Goods, Introduction Agents and Accommodation Providers Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 25 commencement date that section will continue to apply to that action.". 5 Disposal of Uncollected Goods Act 1961 repealed The Disposal of Uncollected Goods Act 1961 is repealed. 6 Consequential amendment to Road Safety Act 1986 After section 92(3)(ga) of the Road Safety Act 1986 insert— "(gb) for the purposes of Part 2D of the Fair Trading Act 1999;". Division 2—Introduction agents 7 New Part 5AA inserted into Fair Trading Act 1999 Before Part 5A of the Fair Trading Act 1999 insert— 'PART 5AA—INTRODUCTION AGENTS Division 1—Interpretation 93AA Definitions In this Part— business day, in relation to an introduction agent, means a day on which the introduction agent is open for business; introduction agent has the meaning given by section 93AB; introduction agreement means an agreement to provide an introduction service; See: Act No. 6815. Reprint No. 4 as at 19 March 2009. LawToday: www. legislation. vic.gov.au s. 5 -- 33 of 154 -- Part 2—Amendments and Repeals Related to Uncollected Goods, Introduction Agents and Accommodation Providers Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 26 introduction service has the meaning given by section 93AC. 93AB Meaning of introduction agent An introduction agent is a person who carries on a business of providing, or offering to provide, an introduction service. 93AC Meaning of introduction service (1) An introduction service is any one or more of the following— (a) giving a name (or other identifying details) to a person; or (b) giving a document containing names (or other identifying details) to a person; or Note Document is defined in section 38 of the Interpretation of Legislation Act 1984. (c) arranging for a person to attend a meeting; or (d) doing anything else specified by the regulations for the purposes of this subsection in relation to a person— for the purpose of introducing the person to one or more other persons who might be interested in having a personal relationship with the person, or in attending a social outing with the person. (2) For the purposes of subsection (1), it is irrelevant— (a) whether the intended introduction is direct or indirect; or (b) whether the personal relationship is intended to be for a long or short time. s. 7 -- 34 of 154 -- Part 2—Amendments and Repeals Related to Uncollected Goods, Introduction Agents and Accommodation Providers Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 27 93AD Who carries on a business? (1) For the purposes of this Part, a person carries on a business if the person— (a) owns, or partly owns, the business; or (b) is entitled to share in the proceeds of the business; or (c) is in effective control of the business. (2) A person is in effective control of a business if he or she— (a) is regularly or usually in charge of the business; or (b) regularly directs the staff of the business in their duties; or (c) establishes and oversees the office procedures of the business; or (d) employs or directs any person who does anything referred to in paragraph (a), (b) or (c). 93AE Introduction agency not to use sex work service premises (1) A person must not act as an introduction agent on any premises that are occupied by a sex work service provider and on or from which the sex work service provider is operating a brothel or escort agency. Penalty: 240 penalty units. (2) In this section, brothel, escort agency and sex work service provider have the same meanings as they have in the Sex Work Act 1994. s. 7 -- 35 of 154 -- Part 2—Amendments and Repeals Related to Uncollected Goods, Introduction Agents and Accommodation Providers Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 28 Division 2—Persons who are not introduction agents 93AF Effect of this Division If this Division states that a person does not act as an introduction agent in carrying out an activity, nothing in this Part applies to that person in carrying out that activity. 93AG Exemption for activities with a community purpose (1) A person does not act as an introduction agent by carrying out an activity if— (a) the activity is carried out for a community purpose; and (b) the net proceeds from the activity are solely applied (or to be applied) to furthering that purpose. (2) In this section, community purpose means— (a) a philanthropic or benevolent purpose (including the promotion of art, culture, science, religion, education, medicine or charity); or (b) a sporting or recreational purpose (including the benefiting of any sporting or recreational club or association). 93AH Exemption for non-profit activities A person does not act as an introduction agent by carrying out an activity— (a) that does not have a significant commercial purpose or character; and (b) that does not primarily seek to make a profit for the person or any other person. s. 7 -- 36 of 154 -- Part 2—Amendments and Repeals Related to Uncollected Goods, Introduction Agents and Accommodation Providers Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 29 93AI Exemption for publishers of advertisements etc. (1) A person does not act as an introduction agent by— (a) publishing or making available, details of persons who are seeking a personal or social relationship with one or more other persons— (i) in a newspaper, magazine or similar document that is readily available to members of the public; or (ii) in a television, radio or similar broadcast that is readily accessible to members of the public who possess the necessary equipment; and (b) providing a means of enabling persons seeing or hearing the details to make contact with the persons supplying the details. (2) Subsection (1) applies even if— (a) it is necessary for members of the public to pay to obtain the newspaper, magazine, document or broadcast; and (b) a charge is imposed on persons making use of the means referred to in subsection (1)(b). 93AJ Exemption for information service providers (1) In this section— information provider means a person who operates an information service; s. 7 -- 37 of 154 -- Part 2—Amendments and Repeals Related to Uncollected Goods, Introduction Agents and Accommodation Providers Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 30 information service means the provision of details of persons seeking a personal or social relationship with one or more other persons. (2) An information provider does not act as an introduction agent in operating an information service if— (a) a person can obtain details of persons seeking a personal or social relationship with one or more other persons from the information service without the need to speak to, or to otherwise communicate with, the information provider (or any person employed by the information provider); and (b) a person who provides information to the information provider (or any person employed by the information provider) for the purpose of having that information provided to other persons is not, by providing that information, placed under any obligation— (i) to use the service again; or (ii) to pay a fee of more than $250 (or any other amount fixed by the regulations for the purposes of this paragraph); and (c) a person to whom the information is provided is not, by using the information service, placed under any obligation— (i) to use the service again; or (ii) to pay a fee of more than $250 (or any other amount fixed by the regulations for the purposes of this paragraph). s. 7 -- 38 of 154 -- Part 2—Amendments and Repeals Related to Uncollected Goods, Introduction Agents and Accommodation Providers Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 31 (3) If the fees for providing information to, or obtaining information from, an information service are based on the length of time a person has electronic or mechanical access to the information service and the length of that time is automatically recorded by electronic or mechanical means, subsections (2)(b)(ii) and (2)(c)(ii) do not apply in determining whether an information provider falls within the exemption provided by subsection (2). 93AK Exemption for organisers of dances etc. (1) A person does not act as an introduction agent merely by organising a social activity with the intention of enabling persons to meet if— (a) the activity is publicly advertised and is open to any member of the public who is willing to pay the admission cost set for the activity; and (b) the admission cost is the only cost a person attending the activity is liable to pay the organiser of the activity; and (c) no person attending the activity is placed under any obligation to the organiser of the activity by reason of being allowed to attend the activity, other than an obligation concerning the person's conduct at the activity itself. (2) The condition specified by subsection (1)(a) is met even if a member of the public is refused admission to the activity, if the refusal is based on a failure by that person to obtain admission to the activity before a limit on the number of persons who could attend the activity was reached. s. 7 -- 39 of 154 -- Part 2—Amendments and Repeals Related to Uncollected Goods, Introduction Agents and Accommodation Providers Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 32 (3) The condition specified by subsection (1)(b) is met even if food or drink is sold by the organiser in relation to the activity. (4) A reference in this section to the organiser of an activity includes a reference to any agent or person associated with the organiser. 93AL Other exemptions (1) A person who is a licensee or an approved manager under the Sex Work Act 1994 does not act as an introduction agent merely by providing a sex work service or by doing anything incidental to the provision of a sex work service. (2) A person does not act as an introduction agent merely by providing a means that enables another person to offer to provide an introduction service. Division 3—Persons who must not act as introduction agents 93AM Certain persons not to act as introduction agents (1) Subject to section 93AO, a natural person must not act as an introduction agent if he or she— (a) is under 18 years of age; or (b) is an insolvent under administration; or (c) has been found guilty of a serious offence within the last 5 years; or (d) has been found guilty of an offence under the Introduction Agents Act 1997 or an equivalent offence in another jurisdiction within the last 5 years; or s. 7 -- 40 of 154 -- Part 2—Amendments and Repeals Related to Uncollected Goods, Introduction Agents and Accommodation Providers Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 33 (e) in offering to provide, or in the provision of, an introduction service, has been found guilty of an offence under this Part or an equivalent offence in another jurisdiction within the last 5 years; or (f) in offering to provide, or in the provision of, an introduction service, has been found guilty of an offence under Part 2 of this Act or an equivalent offence in another jurisdiction within the last 5 years; or (g) is a represented person within the meaning of the Guardianship and Administration Act 1986; or (h) is a licensee or an approved manager under the Sex Work Act 1994. Penalty: 120 penalty units or imprisonment for 12 months. (2) A body corporate must not act as an introduction agent if— (a) one or more of its directors is disqualified from acting as an introduction agent by subsection (1); or (b) it has been found guilty of a serious offence within the last 5 years; or (c) has been found guilty of an offence under the Introduction Agents Act 1997 or an equivalent offence in another jurisdiction within the last 5 years; or s. 7 -- 41 of 154 -- Part 2—Amendments and Repeals Related to Uncollected Goods, Introduction Agents and Accommodation Providers Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 34 (d) in offering to provide, or in the provision of, an introduction service, it has been found guilty of an offence under this Part or an equivalent offence in another jurisdiction within the last 5 years; or (e) in offering to provide, or in the provision of, an introduction service, it has been found guilty of an offence under Part 2 of this Act or an equivalent offence in another jurisdiction within the last 5 years; or (f) it is an externally-administered body corporate. Penalty: 600 penalty units. (3) In this section— externally-administered body corporate has the same meaning as in the Corporations Act; serious offence means an offence involving— (a) fraud; or (b) dishonesty; or (c) drug trafficking; or (d) violence— punishable by imprisonment for 3 months or more regardless of whether the offence occurred in Australia or elsewhere. s. 7 -- 42 of 154 -- Part 2—Amendments and Repeals Related to Uncollected Goods, Introduction Agents and Accommodation Providers Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 35 Division 4—Permission for disqualified persons to act as introduction agents 93AN Disqualified person may apply for permission to act as an introduction agent (1) A person who is disqualified from acting as an introduction agent by section 93AM (other than a person referred to in section 93AM(1)(a), (g) or (h)) may apply to the Authority at any time for permission to act as an introduction agent. (2) An application must— (a) be in a form approved by the Authority; and (b) contain the information required by the Authority; and (c) be accompanied by any documents required by the Authority; and (d) be accompanied by the prescribed fee (if any). (3) An application may be withdrawn at any time before the Authority determines it. 93AO Permission to act as an introduction agent (1) The Authority may give its permission if it is satisfied that it is not contrary to the public interest for it to do so. (2) Without limiting its discretion to do so, the Authority may refuse to give its permission if the applicant— (a) refuses to provide any further information required by the Authority under subsection (3)(b); or s. 7 -- 43 of 154 -- Part 2—Amendments and Repeals Related to Uncollected Goods, Introduction Agents and Accommodation Providers Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 36 (b) fails to provide any further information required by the Authority under subsection (3)(b) within a reasonable time after the requirement is made. (3) In determining whether to give its permission, the Authority— (a) is not required to conduct a hearing; and (b) may require the applicant to provide such further information as the Authority considers necessary in the manner required by the Authority; and (c) may seek advice and information on the application from any other person or body as the Authority thinks fit. (4) The Authority may revoke a permission granted under this section by notice in writing issued to the person in respect of whom the permission was granted if the Authority is satisfied that it is in the public interest for it to do so. (5) The Authority must not revoke a permission without giving the person an opportunity to be heard. 93AP Authority may impose conditions on permission (1) In giving its permission under section 93AO(1), the Authority may impose any conditions it considers appropriate to ensure the ongoing protection of the public interest. (2) The person given the permission, or the Director, may apply to the Authority for a variation or revocation of any conditions the Authority has imposed in respect of the permission. s. 7 -- 44 of 154 -- Part 2—Amendments and Repeals Related to Uncollected Goods, Introduction Agents and Accommodation Providers Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 37 (3) A person given permission under section 93AO(1) must comply with any conditions imposed in respect of that permission. Penalty: 120 penalty units or 12 months imprisonment, in the case of a natural person; 600 penalty units, in the case of a body corporate. (4) If the Authority is satisfied that any condition imposed in respect of a permission has been contravened or not complied with, it may revoke the permission by notice in writing issued to the person in respect of whom the permission was granted. (5) Before taking any action under this section, the Authority may seek and use information and advice from any person or body or other source as it thinks fit. 93AQ Application for review (1) A person whose interests are affected by a decision of the Authority under section 93AO or 93AP may apply to the Tribunal for review of the decision. (2) An application for review must be made within 28 days after the later of— (a) the day on which the decision is made; or (b) if, under the Victorian Civil and Administrative Tribunal Act 1998, the person requests a statement of reasons for the decision, the day on which the statement of reasons is given to the person or the person is informed under section 46(5) of that Act that a statement of reasons will not be given. s. 7 -- 45 of 154 -- Part 2—Amendments and Repeals Related to Uncollected Goods, Introduction Agents and Accommodation Providers Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 38 Division 5—Introduction agreements 93AR What must an introduction agreement contain? An introduction agent must not enter into an agreement to provide a person with an introduction service unless the agreement— (a) is in writing and is readily legible; and (b) starts with the words "Important Notice" printed in at least 14 point bold type followed by the statement set out in Schedule 1A which (apart from any insertions made by hand) must be printed in at least 12 point type; and (c) states the names, addresses and telephone numbers of the parties to the agreement; and (d) sets out a full description of the service to be provided by the agent under the agreement and the terms on which the service is offered; and (e) states the price of the service and the method of payment; and (f) contains a statement in bold type that is in at least 12 point type that this Act forbids the payment of more than 30% of the price of the service before any part of the service is provided; and (g) sets out the period of the agreement; and (h) states the conditions under which refunds will be made; and (i) is in English and is expressed clearly; and s. 7 -- 46 of 154 -- Part 2—Amendments and Repeals Related to Uncollected Goods, Introduction Agents and Accommodation Providers Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 39 (j) sets out in full all other terms of the agreement; and (k) is signed by the introduction agent (or the introduction agent's authorised agent) and the person who is to be provided with the introduction service under the agreement; and (l) complies with any other requirements set out in the regulations. Penalty: 240 penalty units. 93AS Restriction on prepayments (1) An introduction agent must not demand or receive, before any part of an introduction service is provided, an amount that is more than 30% of the price at which the agent agrees to provide the service. Penalty: 240 penalty units. (2) This section does not apply to an introduction agreement if— (a) the amount that is to be paid under the agreement is $1000 (or any other amount fixed by the regulations) or less; and (b) the total of that amount and all amounts that the person entering into the agreement with the introduction agent paid, or became liable to pay, the agent in respect of any other introduction agreements— (i) in the 30 days immediately before the date the agreement was signed is $1000 (or any other amount fixed by the regulations) or less; and s. 7 -- 47 of 154 -- Part 2—Amendments and Repeals Related to Uncollected Goods, Introduction Agents and Accommodation Providers Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 40 (ii) in the 12 months immediately before the date of the agreement was signed is $5000 (or any other amount fixed by the regulations) or less. 93AT Person may withdraw from agreement within 3 days without penalty (1) A person who has entered into an introduction agreement may withdraw from the agreement at any time before the expiration of 3 clear business days after he or she receives a copy of the signed agreement. (2) To do this, the person must within that time— (a) give, or cause to be delivered to, the introduction agent; or (b) leave at the address shown as the agent's address in the agreement; or (c) send by facsimile or by other electronic means to the agent— a written notice signed by the person that states that he or she withdraws from the agreement. (3) If a person withdraws from an agreement under this section— (a) the introduction agent is entitled to $250 (or any other amount fixed by the regulations) or 10% of the total amount that is to be paid to the agent under the agreement (whichever is the lower amount); and s. 7 s. 7 -- 48 of 154 -- Part 2—Amendments and Repeals Related to Uncollected Goods, Introduction Agents and Accommodation Providers Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 41 (b) the agent must refund all money paid to the agent under the agreement by (or on behalf of) the person (other than any amount the agent is entitled to under paragraph (a)); and (c) the person is not liable to the agent in any way for withdrawing from the agreement (regardless of anything to the contrary in the agreement). (4) An introduction agent who must refund money to a person under subsection (3)(b) must do so within 7 days after receiving the notice of withdrawal. Penalty: 240 penalty units. __________________". 8 Schedule 1A inserted into Fair Trading Act 1999 After Schedule 1 to the Fair Trading Act 1999 insert— "SCHEDULE 1A Section 93AR YOU HAVE A RIGHT TO WITHDRAW FROM THIS AGREEMENT WITHIN 3 DAYS You may withdraw from this agreement at any time within 3 business days of signing it. To withdraw from this agreement you must write a letter to the introduction agent, sign it and either— • give it to the agent personally or leave it at [insert address]; or • have it delivered to [insert address or a postal address]; or • fax it to [insert fax number]; or s. 8 -- 49 of 154 -- Part 2—Amendments and Repeals Related to Uncollected Goods, Introduction Agents and Accommodation Providers Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 42 • send it to [insert email or Internet or similar address]. Your letter must reach the agent before a.m./p.m. on [date]. If you withdraw from this agreement the agent is entitled to [$250 or whatever other amount is fixed by the regulations] or 10% of the total amount that was payable under this agreement (whichever is the smaller amount). If the agent holds more of your money than this amount, then the agent must refund the rest of your money within 7 days of receiving your letter. __________________". 9 Consequential amendments (1) In section 106C of the Fair Trading Act 1999, paragraph (g) of the definition of licence is repealed. (2) Section 106E(8) of the Fair Trading Act 1999 is repealed. (3) In Schedule 1 to the Fair Trading Act 1999, omit "Introduction Agents Act 1997". 10 Repeal of Introduction Agents Act 1997 The Introduction Agents Act 1997 is repealed. See: Act No. 75/1997. Reprint No. 3 as at 22 February 2008 and amending Act No 4/2008. LawToday: www. legislation. vic.gov.au s. 9 -- 50 of 154 -- Part 2—Amendments and Repeals Related to Uncollected Goods, Introduction Agents and Accommodation Providers Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 43 11 Consequential Amendments to Business Licensing Authority Act 1998 (1) In section 3 of the Business Licensing Authority Act 1998, paragraph (c) of the definition of business licensing Act is repealed. (2) Section 6(a)(iii) of the Business Licensing Authority Act 1998 is repealed. (3) In section 20 of the Business Licensing Authority Act 1998, paragraph (g) of the definition of licence is repealed. (4) Section 22(8) of the Business Licensing Authority Act 1998 is repealed. Division 3—Accommodation providers 12 New Part 5C inserted into Fair Trading Act 1999 Before Part 6 of the Fair Trading Act 1999 insert— "PART 5C—LIABILITY OF ACCOMMODATION PROVIDERS 93O Definitions In this Part— accommodation means a room or other area at an accommodation place that contains sleeping facilities; accommodation place means any place that provides accommodation for use by members of the travelling public as part of a commercial transaction, but does not include accommodation in or on something that is being used, or is ordinarily used, as means of transportation; See: Act No. 49/1998. Reprint No. 2 as at 1 July 2008 and amending Act No. 11/2010. LawToday: www. legislation. vic.gov.au s. 11 -- 51 of 154 -- Part 2—Amendments and Repeals Related to Uncollected Goods, Introduction Agents and Accommodation Providers Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 44 Examples Accommodation places include backpacker hostels, bed and breakfast providers, hotels, motels, resorts, serviced apartments and similar facilities. accommodation provider means a person who operates a business that includes providing accommodation; commercial transaction includes an arrangement under which accommodation is provided without charge if the arrangement is commercial in nature; fault means negligence or another act or omission giving rise to a liability; guest means a person to whom, or for whom, accommodation is provided by an accommodation provider during a period of accommodation, but does not include— (a) a person who is at the accommodation place merely to obtain beverages or food or to visit someone else; or (b) a person who usually lives at the accommodation place; innkeeper's liability means innkeeper's liability under the common law but only in relation to the strict liability imposed on an innkeeper for failing to safeguard the property of the innkeeper's guests that is brought to the innkeeper's inn; s. 12 -- 52 of 154 -- Part 2—Amendments and Repeals Related to Uncollected Goods, Introduction Agents and Accommodation Providers Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 45 innkeeper's lien means the common law right allowing an innkeeper— (a) to take possession of the property of the innkeeper's guests that is brought to the innkeeper's inn; and (b) to keep the property until the innkeeper receives payment for accommodation, beverages, food and other services provided to the guest; loss includes damage or destruction; period of accommodation means the period of time during which a guest is entitled to use accommodation in an accommodation place; property of a guest means the property brought to the accommodation place or its precincts by or for the guest, but does not include— (a) a motor vehicle brought to the accommodation or its precincts by or for the guest, or other things owned by the guest left in or on the motor vehicle; or (b) property taken from the accommodation or its precincts by or for the guest; provide includes offering to provide; safekeeping service means a service provided at an accommodation place where property of guests is deposited with the accommodation provider for safekeeping, but does not include a safe facility located in a unit of accommodation. s. 12 -- 53 of 154 -- Part 2—Amendments and Repeals Related to Uncollected Goods, Introduction Agents and Accommodation Providers Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 46 93P Application of common law For innkeeper's lien and innkeeper's liability— (a) an accommodation provider, and only an accommodation provider, is an innkeeper; (b) an accommodation place, and only an accommodation place, is an inn. 93Q Liability of accommodation providers under this Part (1) Subject to subsection (2) and section 93R, an accommodation provider is liable to make good the loss of any property of a guest if the property is lost— (a) in the accommodation place during the period of accommodation; or (b) while the property is deposited for safekeeping with the accommodation provider. (2) This liability of an accommodation provider under this Part does not include liability for the loss of any property of a guest if the loss was due to an intentional or negligent act or omission of the guest. 93R Limitation on accommodation providers' liability for property of guest (1) Subject to subsection (2), the liability of an accommodation provider to make good the loss of, or damage to, any property of a guest under section 93Q is limited to $300 per unit of accommodation or any higher prescribed amount if the notice set out in Schedule 2A was displayed in accordance with section 93T— s. 12 s. 12 -- 54 of 154 -- Part 2—Amendments and Repeals Related to Uncollected Goods, Introduction Agents and Accommodation Providers Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 47 (a) at all times during the accommodation period; and (b) at the time of the arrival of the guest at the accommodation place. (2) Subsection (1) does not apply if— (a) the property of the guest had been deposited by or on behalf of the guest for safekeeping with the accommodation provider in accordance with section 93S; or (b) the accommodation provider had represented that a safekeeping service was available at the accommodation place before the guest agreed to purchase the accommodation and the accommodation provider— (i) had unreasonably refused to accept the property for safekeeping; or (ii) was unable to accept the property for safekeeping due to the default of the accommodation provider; or (c) the loss or damage was caused by the intentional or negligent act or omission of the accommodation provider or its employees or agents. 93S Accommodation provider to provide safekeeping service (1) An accommodation provider must accept the property of a guest for deposit in a safekeeping service unless the accommodation provider has a reasonable excuse for not doing so. s. 12 -- 55 of 154 -- Part 2—Amendments and Repeals Related to Uncollected Goods, Introduction Agents and Accommodation Providers Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 48 (2) If a guest asks to use an accommodation provider's safekeeping service, the accommodation provider— (a) may inspect the property to be deposited by the guest; (b) may ask the guest to describe the nature of the property and the approximate value of the property; (c) must provide the guest with a receipt for the property, which contains the information given under paragraph (b); (d) may require the guest to place the property in a container and fasten or seal the container. (3) An accommodation provider is liable for the loss of a guest's property if it happens after the accommodation provider accepts the property for depositing in the safekeeping service. (4) Subject to subsection (5), the liability of an accommodation provider under subsection (3) is limited to $3000 (or another prescribed amount) for each unit of accommodation provided for the use of the guest on the day of the loss, irrespective of— (a) the number of guests who are provided with the use of that unit of accommodation on the day; and (b) the value of the loss on the day. (5) The limitation on liability under subsection (4) does not apply if, before or at the time the accommodation provider accepts the property for depositing in the safekeeping service— s. 12 -- 56 of 154 -- Part 2—Amendments and Repeals Related to Uncollected Goods, Introduction Agents and Accommodation Providers Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 49 (a) the guest, in writing given to the accommodation provider, declares the value of the property is more than $3000 (or the amount prescribed under subsection (4)); and (b) the accommodation provider agrees, in writing given to the guest, to accept liability for the value of the property stated under paragraph (a); and (c) the guest agrees to pay a fee for the accommodation provider accepting the property for depositing in the safekeeping service, if asked to do so by the accommodation provider. (6) For the purposes of subsection (1), a reasonable excuse includes— (a) that the guest does not place the property in a container and fasten or seal it, in response to a requirement under subsection (2)(d); (b) in a case where subsection (5) applies, that the guest does not agree to pay any fee requested under subsection (5)(b); (c) that the accommodation provider reasonably considers that depositing the property in the safekeeping service would be unreasonable having regard to the property's nature, size or value and the type of accommodation and tariff charged for the accommodation. 93T Notice about this Part (1) An accommodation provider must cause the notice set out in Schedule 2A to be conspicuously displayed so it may easily be read by a person when the person is in the s. 12 -- 57 of 154 -- Part 2—Amendments and Repeals Related to Uncollected Goods, Introduction Agents and Accommodation Providers Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 50 reception area of, or the main entrance to, the accommodation place. (2) An accommodation provider must cause the notice set out in Schedule 2A— (a) to be conspicuously displayed in each unit of accommodation that is provided to guests so it may easily be read by a guest who has use of that unit of accommodation; or (b) to be given to the guest in respect of each unit of accommodation, provided that the notice is specifically identified and mentioned to the guest. 93U Innkeeper's lien If a person is a guest of an accommodation provider and the guest's actions would, if the accommodation provider were an innkeeper at common law, give rise to an innkeeper's lien for the guest's property, the accommodation provider may exercise an innkeeper's lien for the guest's property. 93V Part 11 not to apply Part 11 does not apply to this Part. __________________". -- 58 of 154 -- Part 2—Amendments and Repeals Related to Uncollected Goods, Introduction Agents and Accommodation Providers Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 51 13 New Schedule 2A inserted into Fair Trading Act 1999 After Schedule 2 to the Fair Trading Act 1999 insert— "SCHEDULE 2A Section 93T NOTICE LOSS OF OR DAMAGE TO GUESTS' PROPERTY Part 5C of the Fair Trading Act 1999 may make an accommodation provider liable to make good the loss of a guest's property in certain circumstances even though the loss is not caused by the fault of the accommodation provider, or the provider's agent. The liability of the accommodation provider under the Act— • applies only to a guest of the accommodation provider; • applies only for the period for which the guest is provided accommodation; • is limited to $300 for each room provided for the use of the guest on the day, unless the guest's property was placed in a safekeeping service; • is limited to $3000 for each room in respect of a guest's property that was placed in a safekeeping service (excluding a safe in a room); s. 13 -- 59 of 154 -- Part 2—Amendments and Repeals Related to Uncollected Goods, Introduction Agents and Accommodation Providers Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 52 • does not cover motor vehicles and property owned by the guest left in or on a motor vehicle. Part 5C does not limit any other right or remedy available under the Fair Trading Act 1999. __________________". 14 Carriers and Innkeepers Act 1958 The Carriers and Innkeepers Act 1958 is repealed. __________________ See: Act No. 6214. Reprint No. 3 as at 1 September 1981 and amending Act No 1/2010. LawToday: www. legislation. vic.gov.au s. 14 -- 60 of 154 -- Part 3—Amendments to Goods Act 1958 and Consequential Repeals Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 53 PART 3—AMENDMENTS TO GOODS ACT 1958 AND CONSEQUENTIAL REPEALS 15 Repeals and savings Section 2(1) of the Goods Act 1958 is repealed. 16 Provisions relating to bills of lading repealed (1) Insert the following heading to Part II of the Goods Act 1958— "PART II—CONSIGNEES, MERCANTILE AGENTS, DOCUMENTS OF TITLE TO GOODS". (2) Sections 75 to 80 of the Goods Act 1958 are repealed. 17 New Parts IV and IVA inserted into Goods Act 1958 After Part III of the Goods Act 1958 insert— "PART IV—VIENNA CONVENTION 84 Part binds the Crown This Part binds the Crown in right of Victoria and, in so far as the legislative power of the Parliament of Victoria permits, the Crown in all its other capacities. s. 15 See: Act No. 6265. Reprint No. 10 as at 1 May 2003 and amending Act Nos 30/2003, 2/2009, 7/2009, 68/2009 and 11/2010. LawToday: www. legislation. vic.gov.au -- 61 of 154 -- Part 3—Amendments to Goods Act 1958 and Consequential Repeals Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 54 85 Convention In this Part, Convention means the United Nations Convention on Contracts for the International Sale of Goods adopted at Vienna, Austria, on 10 April 1980 and opened for signature and also for accession on 11 April 1980, a copy of which is set out in the Schedule. 86 Convention to have the force of law The provisions of the Convention have the force of law in Victoria. 87 Convention to prevail in event of inconsistency The provisions of the Convention prevail over any other law in force in Victoria to the extent of any inconsistency. 88 Evidence of certain matters A document purporting to be a notice issued by the Minister and published in the Government Gazette, or a document purporting to be a notice issued by a Minister of State for the Commonwealth and published in the Commonwealth of Australia Gazette, or a document certified by an Australian lawyer (within the meaning of the Legal Profession Act 2004) to be a true copy of such a notice— (a) declaring that the Convention has entered or will enter into force, with effect from a specified date, in respect of a specified country; or s. 17 -- 62 of 154 -- Part 3—Amendments to Goods Act 1958 and Consequential Repeals Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 55 (b) declaring that a specified country has made a declaration under Part IV of the Convention and specifying details of that declaration, including the date the declaration took or will take effect; or (c) declaring that a specified country has denounced the Convention or Part II or III of the Convention and specifying the date the denunciation took or will take effect— is evidence of the matters contained in the document. __________________ PART IVA—SEA-CARRIAGE DOCUMENTS Division 1—Preliminary 89 Definitions In this Part— bill of lading means a bill of lading (including a received for shipment bill of lading) that is capable of transfer— (a) by endorsement; or (b) as a bearer bill, by delivery without endorsement; contract of carriage, in relation to a sea- carriage document, means— (a) in the case of a bill of lading or a sea waybill—the contract of carriage contained in, or evidenced by, the document; or s. 17 -- 63 of 154 -- Part 3—Amendments to Goods Act 1958 and Consequential Repeals Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 56 (b) in the case of a ship's delivery order—the contract of carriage in association with which the order is given; data message means information generated, stored or communicated by electronic, optical or analogous means, including, but not limited to, electronic data interchange, electronic mail, telegram, telex and telecopy; goods, in relation to a sea-carriage document, means the goods to which the document relates; identification, in relation to the identification of a person in a sea-carriage document, includes the identification of the person by a description that allows for the person's identity to be varied, in accordance with the document, after its issue; lawful holder, of a bill of lading, means a person who— (a) has come into possession of the bill, in good faith, as the consignee of the goods, by virtue of being identified in the bill; or (b) has come into possession of the bill, in good faith, as a result of the completion, by delivery of the bill— (i) of any endorsement of the bill; or (ii) in the case of a bearer bill, of any other transfer of the bill; or s. 17 -- 64 of 154 -- Part 3—Amendments to Goods Act 1958 and Consequential Repeals Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 57 (c) would be the lawful holder of the bill under paragraph (a) or (b) had not the person come into possession of the bill as the result of a transaction effected at a time when possession of the bill no longer gave a right (as against the carrier) to possession of the goods; sea waybill means a document other than a bill of lading which— (a) is issued by the carrier of the goods; and (b) is a receipt for the goods; and (c) contains or evidences a contract for the carriage of the goods by sea; and (d) identifies the person to whom delivery of the goods is to be made by the carrier in accordance with the contract; sea-carriage document means a bill of lading, a sea waybill or a ship's delivery order; ship's delivery order means a document other than a bill of lading or sea waybill which— (a) is given in association with the contract for the carriage of goods by sea including those to which the document relates; and (b) contains an undertaking by the carrier to deliver the goods to which the document relates to a person identified in the document. s. 17 -- 65 of 154 -- Part 3—Amendments to Goods Act 1958 and Consequential Repeals Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 58 90 Electronic and computerised sea-carriage documents (1) Subject to this section, this Part applies— (a) in relation to a sea-carriage document in the form of a data message—in the same way as it applies to a written sea- carriage document; (b) in relation to the communication of a sea-carriage document by means of a data message—in the same way as it applies to the communication of a sea- carriage document by other means. (2) This Part applies under subsection (1) with necessary changes and in accordance with procedures agreed between the parties to the contract of carriage. (3) Without limiting the generality of subsection (2), in this Part, in the application of the following terms to a sea-carriage document in the form of a data message, or the communication of a sea-carriage document by means of a data message— delivery includes any form of communication which constitutes delivery under the terms of the contract of carriage; endorsement includes any form of authorisation which constitutes endorsement under the terms of the contract of carriage; possession, in relation to the document, includes being in receipt of the document in any manner which constitutes possession under the terms of the contract of carriage; s. 17 -- 66 of 154 -- Part 3—Amendments to Goods Act 1958 and Consequential Repeals Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 59 signed includes authenticated in any manner which constitutes signing under the terms of the contract of carriage. 91 Application where goods have ceased to exist, or cannot be identified Without prejudice to the operation of section 92(4) or 96, nothing in this Part precludes its operation in relation to a sea- carriage document where the goods— (a) cease to exist after the issue of the document; or (b) cannot be identified (whether because they are mixed with other goods, or for any other reason). Division 2—Rights under contracts of carriage 92 Transfer of rights (1) All rights under the contract of carriage in relation to which a sea-carriage document is given are transferred to— (a) in the case of a bill of lading—each successive lawful holder of the bill; or (b) in the case of a sea waybill—the person (not being an original party to the contract) to whom delivery of the goods is to be made by the carrier in accordance with the contract; or (c) in the case of a ship's delivery order— the person to whom delivery of the goods is to be made in accordance with the order. s. 17 -- 67 of 154 -- Part 3—Amendments to Goods Act 1958 and Consequential Repeals Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 60 (2) Rights in a contract of carriage transferred to a person under subsection (1) vest in that person as if the person had been an original party to the contract. (3) Rights in a contract of carriage in relation to which a ship's delivery order is given are transferred under subsection (1)— (a) subject to the terms of the order; and (b) only in respect of the goods to which the order relates. (4) If a person becomes the lawful holder of a bill of lading when possession of the bill no longer gives a right (as against the carrier) to possession of the goods, no rights are transferred to that person under subsection (1) unless the person becomes the lawful holder of the bill— (a) by virtue of a transaction effected under any contractual or other arrangement made before the possession of the bill ceased to give such a right to possession; or (b) as a result of the re-endorsement of the bill following rejection to that person by another person of goods or documents delivered to the other person under any contractual or other arrangement made before the possession of the bill ceased to give such a right to possession. (5) If, in relation to a sea-carriage document— (a) a person with any interest or right in relation to the goods sustains loss or damage in consequence of a breach of the contract of carriage; and s. 17 -- 68 of 154 -- Part 3—Amendments to Goods Act 1958 and Consequential Repeals Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 61 (b) subsection (1) operates to transfer the rights in that contract to another person— the person to whom the rights in the contract are transferred is entitled to exercise those rights for the benefit of the person who sustained the loss or damage to the same extent that they would be able to be exercised if they were vested in that person. (6) In this section, a reference to a contract of carriage, in relation to the transfer of rights under the contract, is to be taken to be a reference to the contract as varied by any variation of which the transferee has notice at the time of the transfer. 93 Extinguishment of previous rights (1) If section 92 operates in relation to a bill of lading to transfer rights under the contract of carriage, the transfer extinguishes any entitlement to those rights which derives from— (a) a person having been an original party to the contract of carriage; or (b) the previous operation of that section. (2) If section 92 operates in relation to a sea waybill or ship's delivery order to transfer rights under the relevant contract of carriage— (a) the transfer extinguishes any entitlement to those rights which derives from the previous operation of that section; and (b) in the case of a sea waybill—the transfer is without prejudice to any rights which derive from a person s. 17 -- 69 of 154 -- Part 3—Amendments to Goods Act 1958 and Consequential Repeals Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 62 having been an original party to the contract; and (c) in the case of a ship's delivery order— the transfer is without prejudice to any rights under the contract other than rights derived from the previous operation of that section. Division 3—Liabilities under contracts of carriage 94 Transfer of liabilities (1) This section applies to a person where the rights in the contract of carriage in relation to a sea-carriage document are transferred to the person under section 93 and— (a) before those rights are transferred, the person demands or takes delivery from the carrier of any of the goods; or (b) after those rights are transferred, the person demands or takes delivery from the carrier of any of the goods; or (c) the person makes a claim under the contract against the carrier in respect of any of the goods. (2) A person to whom this section applies is subject to the liabilities under the contract as if the person had been an original party to the contract. (3) A person to whom subsection (1)(a) applies becomes subject to the liabilities under the contract under subsection (2) at the time the rights in the contract are transferred to the person. s. 17 -- 70 of 154 -- Part 3—Amendments to Goods Act 1958 and Consequential Repeals Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 63 (4) In this section, a reference to a contract of carriage, in relation to a person who becomes subject to a liability under the contract by virtue of this section, is to be taken to be a reference to the contract of carriage as varied by any variation of which the person has notice at the time of becoming subject to the liability. 95 Liability of original parties Section 94 does not operate so as to prejudice the liability under a contract of carriage of any original party to the contract. Division 4—Evidence 96 Shipment under bills of lading (1) This section applies in relation to a bill of lading which— (a) represents goods to have been shipped, or received for shipment, on board a vessel; and (b) is signed— (i) by the master of the vessel; or (ii) by another person with the express, implied or apparent authority of the carrier to sign bills of lading. (2) A bill of lading to which this section applies is prima facie evidence as against the carrier, in favour of the shipper, of the shipment of the goods or, in the case of a received for shipment bill of lading, of their receipt for shipment. s. 17 -- 71 of 154 -- Part 3—Amendments to Goods Act 1958 and Consequential Repeals Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 64 (3) A bill of lading to which this section applies is conclusive evidence as against the carrier, in favour of a lawful holder of the bill, of the shipment of the goods or, in the case of a received for shipment bill of lading, of their receipt for shipment. __________________". 18 New sections 124 and 125 inserted into Part VI After section 123 of the Goods Act 1958 insert— "124 Saving provision for repeal of Sale of Goods (Vienna Convention) Act 1987 Any reference to the Sale of Goods (Vienna Convention) Act 1987 in any agreement or other document so far as it relates to any period after the commencement of section 20 of the Consumer Affairs Legislation Amendment (Reform) Act 2010 is to be treated as a reference to Part IV of this Act, unless the contrary intention appears. 125 Saving provision for repeal of Sea-Carriage Documents Act 1998 Any reference to the Sea-Carriage Documents Act 1998 in any agreement or other document so far as it relates to any period after the commencement of section 21 of the Consumer Affairs Legislation Amendment (Reform) Act 2010 is to be treated as a reference to Part IVA of this Act, unless the contrary intention appears.". s. 18 -- 72 of 154 -- Part 3—Amendments to Goods Act 1958 and Consequential Repeals Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 65 19 New Schedule substituted For the Schedule to the Goods Act 1958 substitute— "__________________ SCHEDULE Section 85 UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS THE STATES PARTIES TO THIS CONVENTION BEARING IN MIND the broad objectives in the resolutions adopted by the sixth special session of the General Assembly of the United Nations on the establishment of a New International Economic Order, CONSIDERING that the development of international trade on the basis of equality and mutual benefit is an important element in promoting friendly relations among States, BEING OF THE OPINION that the adoption of uniform rules which govern contracts for the international sale of goods and take into account the different social, economic and legal systems would contribute to the removal of legal barriers in international trade and promote the development of international trade, HAVE AGREED as follows: PART I SPHERE OF APPLICATION AND GENERAL PROVISIONS Chapter I SPHERE OF APPLICATION Article 1 (1) This Convention applies to contracts of sale of goods between parties whose places of business are in different States— (a) when the States are Contracting States; or (b) when the rules of private international law lead to the application of the law of a Contracting State. s. 19 -- 73 of 154 -- Part 3—Amendments to Goods Act 1958 and Consequential Repeals Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 66 (2) The fact that the parties have their places of business in different States is to be disregarded whenever this fact does not appear either from the contract or from any dealings between, or from information disclosed by, the parties at any time before or at the conclusion of the contract. (3) Neither the nationality of the parties nor the civil or commercial character of the parties or of the contract is to be taken into consideration in determining the application of this Convention. Article 2 This Convention does not apply to sales— (a) of goods bought for personal, family or household use, unless the seller, at any time before or at the conclusion of the contract, neither knew nor ought to have known that the goods were bought for any such use; (b) by auction; (c) on execution or otherwise by authority of law; (d) of stocks, shares, investment securities, negotiable instruments or money; (e) of ships, vessels, hovercraft or aircraft; (f) of electricity. Article 3 (1) Contracts for the supply of goods to be manufactured or produced are to be considered sales unless the party who orders the goods undertakes to supply a substantial part of the materials necessary for such manufacture or production. (2) This Convention does not apply to contracts in which the preponderant part of the obligations of the party who furnishes the goods consists in the supply of labour or other services. Article 4 This Convention governs only the formation of the contract of sale and the rights and obligations of the seller and the buyer arising from such a contract. In particular, except as s. 19 -- 74 of 154 -- Part 3—Amendments to Goods Act 1958 and Consequential Repeals Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 67 otherwise expressly provided in this Convention, it is not concerned with— (a) the validity of the contract or of any of its provisions or of any usage; (b) the effect which the contract may have on the property in the goods sold. Article 5 This Convention does not apply to the liability of the seller for death or personal injury caused by the goods to any person. Article 6 The parties may exclude the application of this Convention or, subject to article 12, derogate from or vary the effect of any of its provisions. Chapter II GENERAL PROVISIONS Article 7 (1) In the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade. (2) Questions concerning matters governed by this Convention which are not expressly settled in it are to be settled in conformity with the general principles on which it is based or, in the absence of such principles, in conformity with the law applicable by virtue of the rules of private international law. Article 8 (1) For the purposes of this Convention statements made by and other conduct of a party are to be interpreted according to his intent where the other party knew or could not have been unaware what that intent was. (2) If the preceding paragraph is not applicable, statements made by and other conduct of a party are to be interpreted according to the understanding that a reasonable person of s. 19 -- 75 of 154 -- Part 3—Amendments to Goods Act 1958 and Consequential Repeals Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 68 the same kind as the other party would have had in the same circumstances. (3) In determining the intent of a party or the understanding a reasonable person would have had, due consideration is to be given to all relevant circumstances of the case including the negotiations, any practices which the parties have established between themselves, usages and any subsequent conduct of the parties. Article 9 (1) The parties are bound by any usage to which they have agreed and by any practices which they have established between themselves. (2) The parties are considered, unless otherwise agreed, to have impliedly made applicable to their contract or its formation a usage of which the parties knew or ought to have known and which in international trade is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade concerned. Article 10 For the purposes of this Convention— (a) if a party has more than one place of business, the place of business is that which has the closest relationship to the contract and its performance, having regard to the circumstances known to or contemplated by the parties at any time before or at the conclusion of the contract; (b) if a party does not have a place of business, reference is to be made to his habitual residence. Article 11 A contract of sale need not be concluded in or evidenced by writing and is not subject to any other requirements as to form. It may be proved by any means, including witnesses. Article 12 Any provision of article 11, article 29 or Part II of this Convention that allows a contract of sale or its modification or termination by agreement or any offer, acceptance or s. 19 -- 76 of 154 -- Part 3—Amendments to Goods Act 1958 and Consequential Repeals Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 69 other indication of intention to be made in any form other than in writing does not apply where any party has his place of business in a Contracting State which has made a declaration under article 96 of this Convention. The parties may not derogate from or vary the effect of this article. Article 13 For the purposes of this Convention "writing" includes telegram and telex. PART II FORMATION OF THE CONTRACT Article 14 (1) A proposal for concluding a contract addressed to one or more specific persons constitutes an offer if it is sufficiently definite and indicates the intention of the offeror to be bound in case of acceptance. A proposal is sufficiently definite if it indicates the goods and expressly or implicitly fixes or makes provision for determining the quantity and the price. (2) A proposal other than one addressed to one or more specific persons is to be considered merely as an invitation to make offers, unless the contrary is clearly indicated by the person making the proposal. Article 15 (1) An offer becomes effective when it reaches the offeree. (2) An offer, even if it is irrevocable, may be withdrawn if the withdrawal reaches the offeree before or at the same time as the offer. Article 16 (1) Until a contract is concluded an offer may be revoked if the revocation reaches the offeree before he has dispatched an acceptance. (2) However, an offer cannot be revoked— (a) if it indicates, whether by stating a fixed time for acceptance or otherwise, that it is irrevocable; or s. 19 -- 77 of 154 -- Part 3—Amendments to Goods Act 1958 and Consequential Repeals Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 70 (b) if it was reasonable for the offeree to rely on the offer as being irrevocable and the offeree has acted in reliance on the offer. Article 17 An offer, even if it is irrevocable, is terminated when a rejection reaches the offeror. Article 18 (1) A statement made by or other conduct of the offeree indicating assent to an offer is an acceptance. Silence or inactivity does not in itself amount to acceptance. (2) An acceptance of an offer becomes effective at the moment the indication of assent reaches the offeror. An acceptance is not effective if the indication of assent does not reach the offeror within the time he has fixed or, if no time is fixed, within a reasonable time, due account being taken of the circumstances of the transaction, including the rapidity of the means of communication employed by the offeror. An oral offer must be accepted immediately unless the circumstances indicate otherwise. (3) However, if, by virtue of the offer or as a result of practices which the parties have established between themselves or of usage, the offeree may indicate assent by performing an act, such as one relating to the dispatch of the goods or payment of the price, without notice to the offeror, the acceptance is effective at the moment the act is performed, provided that the act is performed within the period of time laid down in the preceding paragraph. Article 19 (1) A reply to an offer which purports to be an acceptance but contains additions, limitations or other modifications is a rejection of the offer and constitutes a counter-offer. (2) However, a reply to an offer which purports to be an acceptance but contains additional or different terms which do not materially alter the terms of the offer constitutes an acceptance, unless the offeror, without undue delay, objects orally to the discrepancy or dispatches a notice to that effect. If he does not so object, the terms of the contract are the terms of the offer with the modifications contained in the acceptance. s. 19 -- 78 of 154 -- Part 3—Amendments to Goods Act 1958 and Consequential Repeals Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 71 (3) Additional or different terms relating, among other things, to the price, payment, quality and quantity of the goods, place and time of delivery, extent of one party's liability to the other or the settlement of disputes are considered to alter the terms of the offer materially. Article 20 (1) A period of time for acceptance fixed by the offeror in a telegram or a letter begins to run from the moment the telegram is handed in for dispatch or from the date shown on the letter or, if no such date is shown, from the date shown on the envelope. A period of time for acceptance fixed by the offeror by telephone, telex or other means of instantaneous communication, begins to run from the moment that the offer reaches the offeree. (2) Official holidays or non-business days occurring during the period for acceptance are included in calculating the period. However, if a notice of acceptance cannot be delivered at the address of the offeror on the last day of the period because that day falls on an official holiday or a non- business day at the place of business of the offeror, the period is extended until the first business day which follows. Article 21 (1) A late acceptance is nevertheless effective as an acceptance if without delay the offeror orally so informs the offeree or dispatches a notice to that effect. (2) If a letter or other writing containing a late acceptance shows that it has been sent in such circumstances that if its transmission had been normal it would have reached the offeror in due time, the late acceptance is effective as an acceptance unless, without delay, the offeror orally informs the offeree that he considers his offer as having lapsed or dispatches a notice to that effect. Article 22 An acceptance may be withdrawn if the withdrawal reaches the offeror before or at the same time as the acceptance would have become effective. s. 19 -- 79 of 154 -- Part 3—Amendments to Goods Act 1958 and Consequential Repeals Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 72 Article 23 A contract is concluded at the moment when an acceptance of an offer becomes effective in accordance with the provisions of this Convention. Article 24 For the purposes of this Part of the Convention, an offer, declaration of acceptance or any other indication of intention "reaches" the addressee when it is made orally to him or delivered by any other means to him personally, to his place of business or mailing address or, if he does not have a place of business or mailing address, to his habitual residence. PART III SALE OF GOODS Chapter I GENERAL PROVISIONS Article 25 A breach of contract committed by one of the parties is fundamental if it results in such detriment to the other party as substantially to deprive him of what he is entitled to expect under the contract, unless the party in breach did not foresee and a reasonable person of the same kind in the same circumstances would not have foreseen such a result. Article 26 A declaration of avoidance of the contract is effective only if made by notice to the other party. Article 27 Unless otherwise expressly provided in this Part of the Convention, if any notice, request or other communication is given or made by a party in accordance with this Part and by means appropriate in the circumstances, a delay or error in the transmission of the communication or its failure to arrive does not deprive that party of the right to rely on the communication. s. 19 -- 80 of 154 -- Part 3—Amendments to Goods Act 1958 and Consequential Repeals Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 73 Article 28 If, in accordance with the provisions of this Convention, one party is entitled to require performance of any obligation by the other party, a court is not bound to enter a judgement for specific performance unless the court would do so under its own law in respect of similar contracts of sale not governed by this Convention. Article 29 (1) A contract may be modified or terminated by the mere agreement of the parties. (2) A contract in writing which contains a provision requiring any modification or termination by agreement to be in writing may not be otherwise modified or terminated by agreement. However, a party may be precluded by his conduct from asserting such a provision to the extent that the other party has relied on that conduct. Chapter II OBLIGATIONS OF THE SELLER Article 30 The seller must deliver the goods, hand over any documents relating to them and transfer the property in the goods, as required by the contract and this Convention. Section I—Delivery of Goods and Handing Over of Documents Article 31 If the seller is not bound to deliver the goods at any other particular place, his obligation to deliver consists— (a) if the contract of sale involves carriage of the goods— in handing the goods over to the first carrier for transmission to the buyer; (b) if, in cases not within the preceding sub-paragraph, the contract relates to specific goods, or unidentified goods to be drawn from a specific stock or to be manufactured or produced, and at the time of the conclusion of the contract the parties knew that the goods were at, or were to be manufactured or s. 19 -- 81 of 154 -- Part 3—Amendments to Goods Act 1958 and Consequential Repeals Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 74 produced at, a particular place—in placing the goods at the buyer's disposal at that place; (c) in other cases—in placing the goods at the buyer's disposal at the place where the seller had his place of business at the time of the conclusion of the contract. Article 32 (1) If the seller, in accordance with the contract or this Convention, hands the goods over to a carrier and if the goods are not clearly identified to the contract by markings on the goods, by shipping documents or otherwise, the seller must give the buyer notice of the consignment specifying the goods. (2) If the seller is bound to arrange for carriage of the goods, he must make such contracts as are necessary for carriage to the place fixed by means of transportation appropriate in the circumstances and according to the usual terms for such transportation. (3) If the seller is not bound to effect insurance in respect of the carriage of the goods, he must, at the buyer's request, provide him with all available information necessary to enable him to effect such insurance. Article 33 The seller must deliver the goods— (a) if a date is fixed by or determinable from the contract, on that date; (b) if a period of time is fixed by or determinable from the contract, at any time within that period unless circumstances indicate that the buyer is to choose a date; or (c) in any other case, within a reasonable time after the conclusion of the contract. Article 34 If the seller is bound to hand over documents relating to the goods, he must hand them over at the time and place and in the form required by the contract. If the seller has handed over documents before that time, he may, up to that time, cure any lack of conformity in the documents, if the exercise s. 19 -- 82 of 154 -- Part 3—Amendments to Goods Act 1958 and Consequential Repeals Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 75 of this right does not cause the buyer unreasonable inconvenience or unreasonable expense. However, the buyer retains any right to claim damages as provided for in this Convention. Section II—Conformity of the goods and third party claims Article 35 (1) The seller must deliver goods which are of the quantity, quality and description required by the contract and which are contained or packaged in the manner required by the contract. (2) Except where the parties have agreed otherwise, the goods do not conform with the contract unless they— (a) are fit for the purposes for which goods of the same description would ordinarily be used; (b) are fit for any particular purpose expressly or impliedly made known to the seller at the time of the conclusion of the contract, except where the circumstances show that the buyer did not rely, or that it was unreasonable for him to rely, on the seller's skill and judgement; (c) possess the qualities of goods which the seller has held out to the buyer as a sample or model; (d) are contained or packaged in the manner usual for such goods or, where there is no such manner, in a manner adequate to preserve and protect the goods. (3) The seller is not liable under sub-paragraphs (a) to (d) of the preceding paragraph for any lack of conformity of the goods if at the time of the conclusion of the contract the buyer knew or could not have been unaware of such lack of conformity. Article 36 (1) The seller is liable in accordance with the contract and this Convention for any lack of conformity which exists at the time when the risk passes to the buyer, even though the lack of conformity becomes apparent only after that time. (2) The seller is also liable for any lack of conformity which occurs after the time indicated in the preceding paragraph and which is due to a breach of any of his obligations, including a breach of any guarantee that for a period of time s. 19 -- 83 of 154 -- Part 3—Amendments to Goods Act 1958 and Consequential Repeals Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 76 the goods will remain fit for their ordinary purpose or for some particular purpose or will retain specified qualities or characteristics. Article 37 If the seller has delivered goods before the date for delivery, he may, up to that date, deliver any missing part or make up any deficiency in the quantity of the goods delivered, or deliver goods in replacement of any non-conforming goods delivered or remedy any lack of conformity in the goods delivered, provided that the exercise of this right does not cause the buyer unreasonable inconvenience or unreasonable expense. However, the buyer retains any right to claim damages as provided for in this Convention. Article 38 (1) The buyer must examine the goods, or cause them to be examined, within as short a period as is practicable in the circumstances. (2) If the contract involves carriage of the goods, examination may be deferred until after the goods have arrived at their destination. (3) If the goods are redirected in transit or redispatched by the buyer without a reasonable opportunity for examination by him and at the time of the conclusion of the contract the seller knew or ought to have known of the possibility of such redirection or redispatch, examination may be deferred until after the goods have arrived at the new destination. Article 39 (1) The buyer loses the right to rely on a lack of conformity of the goods if he does not give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it. (2) In any event, the buyer loses the right to rely on a lack of conformity of the goods if he does not give the seller notice thereof at the latest within a period of two years from the date on which the goods were actually handed over to the buyer, unless this time-limit is inconsistent with a contractual period of guarantee. s. 19 -- 84 of 154 -- Part 3—Amendments to Goods Act 1958 and Consequential Repeals Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 77 Article 40 The seller is not entitled to rely on the provisions of articles 38 and 39 if the lack of conformity relates to facts of which he knew or could not have been unaware and which he did not disclose to the buyer. Article 41 The seller must deliver goods which are free from any right or claim of a third party, unless the buyer agreed to take the goods subject to that right or claim. However, if such right or claim is based on industrial property or other intellectual property, the seller's obligation is governed by article 42. Article 42 (1) The seller must deliver goods which are free from any right or claim of a third party based on industrial property or other intellectual property, of which at the time of the conclusion of the contract the seller knew or could not have been unaware, provided that the right or claim is based on industrial property or other intellectual property— (a) under the law of the State where the goods will be resold or otherwise used, if it was contemplated by the parties at the time of the conclusion of the contract that the goods would be resold or otherwise used in that State; or (b) in any other case, under the law of the State where the buyer has his place of business. (2) The obligation of the seller under the preceding paragraph does not extend to cases where— (a) at the time of the conclusion of the contract the buyer knew or could not have been unaware of the right or claim; or (b) the right or claim results from the seller's compliance with technical drawings, designs, formulae or other such specifications furnished by the buyer. Article 43 (1) The buyer loses the right to rely on the provisions of article 41 or article 42 if he does not give notice to the seller specifying the nature of the right or claim of the third party s. 19 -- 85 of 154 -- Part 3—Amendments to Goods Act 1958 and Consequential Repeals Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 78 within a reasonable time after he has become aware or ought to have become aware of the right or claim. (2) The seller is not entitled to rely on the provisions of the preceding paragraph if he knew of the right or claim of the third party and the nature of it. Article 44 Notwithstanding the provisions of paragraph (1) of article 39 and paragraph (1) of article 43, the buyer may reduce the price in accordance with article 50 or claim damages, except for loss of profit, if he has a reasonable excuse for his failure to give the required notice. Section III—Remedies for breach of contract by the seller Article 45 (1) If the seller fails to perform any of his obligations under the contract or this Convention, the buyer may— (a) exercise the rights provided in articles 46 to 52; (b) claim damages as provided in articles 74 to 77. (2) The buyer is not deprived of any right he may have to claim damages by exercising his right to other remedies. (3) No period of grace may be granted to the seller by a court or arbitral tribunal when the buyer resorts to a remedy for breach of contract. Article 46 (1) The buyer may require performance by the seller of his obligations unless the buyer has resorted to a remedy which is inconsistent with this requirement. (2) If the goods do not conform with the contract, the buyer may require delivery of substitute goods only if the lack of conformity constitutes a fundamental breach of contract and a request for substitute goods is made either in conjunction with notice given under article 39 or within a reasonable time thereafter. (3) If the goods do not conform with the contract, the buyer may require the seller to remedy the lack of conformity by repair, unless this is unreasonable having regard to all the circumstances. A request for repair must be made either in s. 19 -- 86 of 154 -- Part 3—Amendments to Goods Act 1958 and Consequential Repeals Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 79 conjunction with notice given under article 39 or within a reasonable time thereafter. Article 47 (1) The buyer may fix an additional period of time of reasonable length for performance by the seller of his obligations. (2) Unless the buyer has received notice from the seller that he will not perform within the period so fixed, the buyer may not, during that period, resort to any remedy for breach of contract. However, the buyer is not deprived thereby of any right he may have to claim damages for delay in performance. Article 48 (1) Subject to article 49, the seller may, even after the date for delivery, remedy at his own expense any failure to perform his obligations, if he can do so without unreasonable delay and without causing the buyer unreasonable inconvenience or uncertainty of reimbursement by the seller of expenses advanced by the buyer. However, the buyer retains any right to claim damages as provided for in this Convention. (2) If the seller requests the buyer to make known whether he will accept performance and the buyer does not comply with the request within a reasonable time, the seller may perform within the time indicated in his request. The buyer may not, during that period of time, resort to any remedy which is inconsistent with performance by the seller. (3) A notice by the seller that he will perform within a specified period of time is assumed to include a request, under the preceding paragraph, that the buyer make known his decision. (4) A request or notice by the seller under paragraph (2) or (3) of this article is not effective unless received by the buyer. Article 49 (1) The buyer may declare the contract avoided— (a) if the failure by the seller to perform any of his obligations under the contract or this Convention amounts to a fundamental breach of contract; or s. 19 -- 87 of 154 -- Part 3—Amendments to Goods Act 1958 and Consequential Repeals Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 80 (b) in case of non-delivery, if the seller does not deliver the goods within the additional period of time fixed by the buyer in accordance with paragraph (1) of article 47 or declares that he will not deliver within the period so fixed. (2) However, in cases where the seller has delivered the goods, the buyer loses the right to declare the contract avoided unless he does so— (a) in respect of late delivery, within a reasonable time after he has become aware that delivery has been made; (b) in respect of any breach other than late delivery, within a reasonable time— (i) after he knew or ought to have known of the breach; (ii) after the expiration of any additional period of time fixed by the buyer in accordance with paragraph (1) of article 47, or after the seller has declared that he will not perform his obligations within such an additional period; or (iii) after the expiration of any additional period of time indicated by the seller in accordance with paragraph (2) of article 48, or after the buyer has declared that he will not accept performance. Article 50 If the goods do not conform with the contract and whether or not the price has already been paid, the buyer may reduce the price in the same proportion as the value that the goods actually delivered had at the time of the delivery bears to the value that conforming goods would have had at that time. However, if the seller remedies any failure to perform his obligations in accordance with article 37 or article 48 or if the buyer refuses to accept performance by the seller in accordance with those articles, the buyer may not reduce the price. s. 19 -- 88 of 154 -- Part 3—Amendments to Goods Act 1958 and Consequential Repeals Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 81 Article 51 (1) If the seller delivers only a part of the goods or if only a part of the goods delivered is in conformity with the contract, articles 46 to 50 apply in respect of the part which is missing or which does not conform. (2) The buyer may declare the contract avoided in its entirety only if the failure to make delivery completely or in conformity with the contract amounts to a fundamental breach of the contract. Article 52 (1) If the seller delivers the goods before the date fixed, the buyer may take delivery or refuse to take delivery. (2) If the seller delivers a quantity of goods greater than that provided for in the contract, the buyer may take delivery or refuse to take delivery of the excess quantity. If the buyer takes delivery of all or part of the excess quantity, he must pay for it at the contract rate. Chapter III OBLIGATIONS OF THE BUYER Article 53 The buyer must pay the price for the goods and take delivery of them as required by the contract and this Convention. Section I—Payment of the price Article 54 The buyer's obligation to pay the price includes taking such steps and complying with such formalities as may be required under the contract or any laws and regulations to enable payment to be made. Article 55 Where a contract has been validly concluded but does not expressly or implicitly fix or make provision for determining the price, the parties are considered, in the absence of any indication to the contrary, to have impliedly made reference to the price generally charged at the time of s. 19 -- 89 of 154 -- Part 3—Amendments to Goods Act 1958 and Consequential Repeals Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 82 the conclusion of the contract for such goods sold under comparable circumstances in the trade concerned. Article 56 If the price is fixed according to the weight of the goods, in case of doubt it is to be determined by the net weight. Article 57 (1) If the buyer is not bound to pay the price at any other particular place, he must pay it to the seller— (a) at the seller's place of business; or (b) if the payment is to be made against the handing over of the goods or of documents, at the place where the handing over takes place. (2) The seller must bear any increase in the expenses incidental to payment which is caused by a change in his place of business subsequent to the conclusion of the contract. Article 58 (1) If the buyer is not bound to pay the price at any other specific time, he must pay it when the seller places either the goods or documents controlling their disposition at the buyer's disposal in accordance with the contract and this Convention. The seller may make such payment a condition for handing over the goods or documents. (2) If the contract involves carriage of the goods, the seller may dispatch the goods on terms whereby the goods, or documents controlling their disposition, will not be handed over to the buyer except against payment of the price. (3) The buyer is not bound to pay the price until he has had an opportunity to examine the goods, unless the procedures for delivery or payment agreed upon by the parties are inconsistent with his having such an opportunity. Article 59 The buyer must pay the price on the date fixed by or determinable from the contract and this Convention without the need for any request or compliance with any formality on the part of the seller. s. 19 -- 90 of 154 -- Part 3—Amendments to Goods Act 1958 and Consequential Repeals Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 83 Section II—Taking delivery Article 60 The buyer's obligation to take delivery consists— (a) in doing all the acts which could reasonably be expected of him in order to enable the seller to make delivery; and (b) in taking over the goods. Section III—Remedies for breach of contract by the buyer Article 61 (1) If the buyer fails to perform any of his obligations under the contract or this Convention, the seller may— (a) exercise the rights provided in articles 62 to 65; (b) claim damages as provided in articles 74 to 77. (2) The seller is not deprived of any right he may have to claim damages by exercising his right to other remedies. (3) No period of grace may be granted to the buyer by a court or arbitral tribunal when the seller resorts to a remedy for breach of contract. Article 62 The seller may require the buyer to pay the price, take delivery or perform his other obligations, unless the seller has resorted to a remedy which is inconsistent with this requirement. Article 63 (1) The seller may fix an additional period of time of reasonable length for performance by the buyer of his obligations. (2) Unless the seller has received notice from the buyer that he will not perform within the period so fixed, the seller may not, during that period, resort to any remedy for breach of contract. However, the seller is not deprived thereby of any right he may have to claim damages for delay in performance. s. 19 -- 91 of 154 -- Part 3—Amendments to Goods Act 1958 and Consequential Repeals Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 84 Article 64 (1) The seller may declare the contract avoided— (a) if the failure by the buyer to perform any of his obligations under the contract or this Convention amounts to a fundamental breach of contract; or (b) if the buyer does not, within the additional period of time fixed by the seller in accordance with paragraph (1) of article 63, perform his obligation to pay the price or take delivery of the goods, or if he declares that he will not do so within the period so fixed. (2) However, in cases where the buyer has paid the price, the seller loses the right to declare the contract avoided unless he does so— (a) in respect of late performance by the buyer, before the seller has become aware that performance has been rendered; or (b) in respect of any breach other than late performance by the buyer, within a reasonable time— (i) after the seller knew or ought to have known of the breach; or (ii) after the expiration of any additional period of time fixed by the seller in accordance with paragraph (1) of article 63, or after the buyer has declared that he will not perform his obligations within such an additional period. Article 65 (1) If under the contract the buyer is to specify the form, measurement or other features of the goods and he fails to make such specification either on the date agreed upon or within a reasonable time after receipt of a request from the seller, the seller may, without prejudice to any other rights he may have, make the specification himself in accordance with the requirements of the buyer that may be known to him. (2) If the seller makes the specification himself, he must inform the buyer of the details thereof and must fix a reasonable time within which the buyer may make a different specification. If, after receipt of such a communication, the buyer fails to do so within the time so fixed, the specification made by the seller is binding. s. 19 -- 92 of 154 -- Part 3—Amendments to Goods Act 1958 and Consequential Repeals Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 85 Chapter IV PASSING OF RISK Article 66 Loss of or damage to the goods after the risk has passed to the buyer does not discharge him from his obligation to pay the price, unless the loss or damage is due to an act or omission of the seller. Article 67 (1) If the contract of sale involves carriage of the goods and the seller is not bound to hand them over at a particular place, the risk passes to the buyer when the goods are handed over to the first carrier for transmission to the buyer in accordance with the contract of sale. If the seller is bound to hand the goods over to a carrier at a particular place, the risk does not pass to the buyer until the goods are handed over to the carrier at that place. The fact that the seller is authorized to retain documents controlling the disposition of the goods does not affect the passage of the risk. (2) Nevertheless, the risk does not pass to the buyer until the goods are clearly identified to the contract, whether by markings on the goods, by shipping documents, by notice given to the buyer or otherwise. Article 68 The risk in respect of goods sold in transit passes to the buyer from the time of the conclusion of the contract. However, if the circumstances so indicate, the risk is assumed by the buyer from the time the goods were handed over to the carrier who issued the documents embodying the contract of carriage. Nevertheless, if at the time of the conclusion of the contract of sale the seller knew or ought to have known that the goods had been lost or damaged and did not disclose this to the buyer, the loss or damage is at the risk of the seller. Article 69 (1) In cases not within articles 67 and 68, the risk passes to the buyer when he takes over the goods or, if he does not do so in due time, from the time when the goods are placed at his s. 19 -- 93 of 154 -- Part 3—Amendments to Goods Act 1958 and Consequential Repeals Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 86 disposal and he commits a breach of contract by failing to take delivery. (2) However, if the buyer is bound to take over the goods at a place other than a place of business of the seller, the risk passes when delivery is due and the buyer is aware of the fact that the goods are placed at his disposal at that place. (3) If the contract relates to goods not then identified, the goods are considered not to be placed at the disposal of the buyer until they are clearly identified to the contract. Article 70 If the seller has committed a fundamental breach of contract, articles 67, 68 and 69 do not impair the remedies available to the buyer on account of the breach. Chapter V PROVISIONS COMMON TO THE OBLIGATIONS OF THE SELLER AND OF THE BUYER Section I—Anticipatory breach and instalment contracts Article 71 (1) A party may suspend the performance of his obligations if, after the conclusion of the contract, it becomes apparent that the other party will not perform a substantial part of his obligations as a result of— (a) a serious deficiency in his ability to perform or in his creditworthiness; or (b) his conduct in preparing to perform or in performing the contract. (2) If the seller has already dispatched the goods before the grounds described in the preceding paragraph become evident, he may prevent the handing over of the goods to the buyer even though the buyer holds a document which entitles him to obtain them. The present paragraph relates only to the rights in the goods as between the buyer and the seller. (3) A party suspending performance, whether before or after dispatch of the goods, must immediately give notice of the suspension to the other party and must continue with s. 19 -- 94 of 154 -- Part 3—Amendments to Goods Act 1958 and Consequential Repeals Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 87 performance if the other party provides adequate assurance of his performance. Article 72 (1) If prior to the date for performance of the contract it is clear that one of the parties will commit a fundamental breach of contract, the other party may declare the contract avoided. (2) If time allows, the party intending to declare the contract avoided must give reasonable notice to the other party in order to permit him to provide adequate assurance of his performance. (3) The requirements of the preceding paragraph do not apply if the other party has declared that he will not perform his obligations. Article 73 (1) In the case of a contract for delivery of goods by instalments, if the failure of one party to perform any of his obligations in respect of any instalment constitutes a fundamental breach of contract with respect to that instalment, the other party may declare the contract avoided with respect to that instalment. (2) If one party's failure to perform any of his obligations in respect of any instalment gives the other party good grounds to conclude that a fundamental breach of contract will occur with respect to future instalments, he may declare the contract avoided for the future, provided that he does so within a reasonable time. (3) A buyer who declares the contract avoided in respect of any delivery may, at the same time, declare it avoided in respect of deliveries already made or of future deliveries if, by reason of their interdependence, those deliveries could not be used for the purpose contemplated by the parties at the time of the conclusion of the contract. Section II—Damages Article 74 Damages for breach of contract by one party consist of a sum equal to the loss, including loss of profit, suffered by the other party as a consequence of the breach. Such damages may not exceed the loss which the party in breach s. 19 -- 95 of 154 -- Part 3—Amendments to Goods Act 1958 and Consequential Repeals Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 88 foresaw or ought to have foreseen at the time of the conclusion of the contract, in the light of the facts and matters of which he then knew or ought to have known, as a possible consequence of the breach of contract. Article 75 If the contract is avoided and if, in a reasonable manner and within a reasonable time after avoidance, the buyer has bought goods in replacement or the seller has resold the goods, the party claiming damages may recover the difference between the contract price and the price in the substitute transaction as well as any further damages recoverable under article 74. Article 76 (1) If the contract is avoided and there is a current price for the goods, the party claiming damages may, if he has not made a purchase or resale under article 75, recover the difference between the price fixed by the contract and the current price at the time of avoidance as well as any further damages recoverable under article 74. If, however, the party claiming damages has avoided the contract after taking over the goods, the current price at the time of such taking over shall be applied instead of the current price at the time of avoidance. (2) For the purposes of the preceding paragraph, the current price is the price prevailing at the place where delivery of the goods should have been made or, if there is no current price at that place, the price at such other place as serves as a reasonable substitute, making due allowance for differences in the cost of transporting the goods. Article 77 A party who relies on a breach of contract must take such measures as are reasonable in the circumstances to mitigate the loss, including loss of profit, resulting from the breach. If he fails to take such measures, the party in breach may claim a reduction in the damages in the amount by which the loss should have been mitigated. s. 19 -- 96 of 154 -- Part 3—Amendments to Goods Act 1958 and Consequential Repeals Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 89 Section III—Interest Article 78 If a party fails to pay the price or any other sum that is in arrears, the other party is entitled to interest on it, without prejudice to any claim for damages recoverable under article 74. Section IV—Exemptions Article 79 (1) A party is not liable for a failure to perform any of his obligations if he proves that the failure was due to an impediment beyond his control and that he could not reasonably be expected to have taken the impediment into account at the time of the conclusion of the contract or to have avoided or overcome it or its consequences. (2) If the party's failure is due to the failure by a third person who he has engaged to perform the whole or a part of the contract, that party is exempt from liability only if— (a) he is exempt under the preceding paragraph; and (b) that person whom he has so engaged would be so exempt if the provisions of that paragraph were applied to him. (3) The exemption provided by this article has effect for the period during which the impediment exists. (4) The party who fails to perform must give notice to the other party of the impediment and its effect on his ability to perform. If the notice is not received by the other party within a reasonable time after the party who fails to perform knew or ought to have known of the impediment, he is liable for damages resulting from such non-receipt. (5) Nothing in this article prevents either party from exercising any right other than to claim damages under this Convention. Article 80 A party may not rely on a failure of the other party to perform, to the extent that such failure was caused by the first party's act or omission. s. 19 -- 97 of 154 -- Part 3—Amendments to Goods Act 1958 and Consequential Repeals Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 90 Section V—Effects of avoidance Article 81 (1) Avoidance of the contract releases both parties from their obligations under it, subject to any damages which may be due. Avoidance does not affect any provision of the contract for the settlement of disputes or any other provision of the contract governing the rights and obligations of the parties consequent upon the avoidance of the contract. (2) A party who has performed the contract either wholly or in part may claim restitution from the other party of whatever the first party has supplied or paid under the contract. If both parties are bound to make restitution, they must do so concurrently. Article 82 (1) The buyer loses the right to declare the contract avoided or to require the seller to deliver substitute goods if it is impossible for him to make restitution of the goods substantially in the condition in which he received them. (2) The preceding paragraph does not apply— (a) if the impossibility of making restitution of the goods or of making restitution of the goods substantially in the condition in which the buyer received them is not due to his act or omission; (b) if the goods or part of the goods have perished or deteriorated as a result of the examination provided for in article 38; or (c) if the goods or part of the goods have been sold in the normal course of business or have been consumed or transformed by the buyer in the course of normal use before he discovered or ought to have discovered the lack of conformity. Article 83 A buyer who has lost the right to declare the contract avoided or to require the seller to deliver substitute goods in accordance with article 82 retains all other remedies under the contract and this Convention. s. 19 -- 98 of 154 -- Part 3—Amendments to Goods Act 1958 and Consequential Repeals Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 91 Article 84 (1) If the seller is bound to refund the price, he must also pay interest on it, from the date on which the price was paid. (2) The buyer must account to the seller for all benefits which he has derived from the goods or part of them— (a) if he must make restitution of the goods or part of them; or (b) if it is impossible for him to make restitution of all or part of the goods or to make restitution of all or part of the goods substantially in the condition in which he received them, but he has nevertheless declared the contract avoided or required the seller to deliver substitute goods. Section VI—Preservation of the goods Article 85 If the buyer is in delay in taking delivery of the goods or, where payment of the price and delivery of the goods are to be made concurrently, if he fails to pay the price, and the seller is either in possession of the goods or otherwise able to control their disposition, the seller must take such steps as are reasonable in the circumstances to preserve them. He is entitled to retain them until he has been reimbursed his reasonable expenses by the buyer. Article 86 (1) If the buyer has received the goods and intends to exercise any right under the contract or this Convention to reject them, he must take such steps to preserve them as are reasonable in the circumstances. He is entitled to retain them until he has been reimbursed his reasonable expenses by the seller. (2) If goods dispatched to the buyer have been placed at his disposal at their destination and he exercises the right to reject them, he must take possession of them on behalf of the seller, provided that this can be done without payment of the price and without unreasonable inconvenience or unreasonable expense. This provision does not apply if the seller or a person authorized to take charge of the goods on his behalf is present at the destination. If the buyer takes s. 19 -- 99 of 154 -- Part 3—Amendments to Goods Act 1958 and Consequential Repeals Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 92 possession of the goods under this paragraph, his rights and obligations are governed by the preceding paragraph. Article 87 A party who is bound to take steps to preserve the goods may deposit them in a warehouse of a third person at the expense of the other party provided that the expense incurred is not unreasonable. Article 88 (1) A party who is bound to preserve the goods in accordance with article 85 or 86 may sell them by any appropriate means if there has been an unreasonable delay by the other party in taking possession of the goods or in taking them back or in paying the price or the cost of preservation, provided that reasonable notice of the intention to sell has been given to the other party. (2) If the goods are subject to rapid deterioration or their preservation would involve unreasonable expense, a party who is bound to preserve the goods in accordance with article 85 or 86 must take reasonable measures to sell them. To the extent possible he must give notice to the other party of his intention to sell. (3) A party selling the goods has the right to retain out of the proceeds of sale an amount equal to the reasonable expenses of preserving the goods and of selling them. He must account to the other party for the balance. PART IV FINAL PROVISIONS Article 89 The Secretary-General of the United Nations is hereby designated as the depositary for this Convention. Article 90 This Convention does not prevail over any international agreement which has already been or may be entered into and which contains provisions concerning the matters governed by this Convention, provided that the parties have their places of business in States parties to such agreement. s. 19 -- 100 of 154 -- Part 3—Amendments to Goods Act 1958 and Consequential Repeals Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 93 Article 91 (1) This Convention is open for signature at the concluding meeting of the United Nations Conference on Contracts for the International Sale of Goods and will remain open for signature by all States at the Headquarters of the United Nations, New York until 30 September 1981. (2) This Convention is subject to ratification, acceptance or approval by the signatory States. (3) This Convention is open for accession by all States which are not signatory States as from the date it is open for signature. (4) Instruments of ratification, acceptance, approval and accession are to be deposited with the Secretary-General of the United Nations. Article 92 (1) A Contracting State may declare at the time of signature, ratification, acceptance, approval or accession that it will not be bound by Part II of this Convention or that it will not be bound by Part III of this Convention. (2) A Contracting State which makes a declaration in accordance with the preceding paragraph in respect of Part II or Part III of this Convention is not to be considered a Contracting State within paragraph (1) of article 1 of this Convention in respect of matters governed by the Part to which the declaration applies. Article 93 (1) If a Contracting State has two or more territorial units in which, according to its constitution, different systems of law are applicable in relation to the matters dealt with in this Convention, it may, at the time of signature, ratification, acceptance, approval or accession, declare that this Convention is to extend to all its territorial units or only to one or more of them, and may amend its declaration by submitting another declaration at any time. (2) These declarations are to be notified to the depositary and are to state expressly the territorial units to which the Convention extends. s. 19 -- 101 of 154 -- Part 3—Amendments to Goods Act 1958 and Consequential Repeals Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 94 (3) If, by virtue of a declaration under this article, this Convention extends to one or more but not all of the territorial units of a contracting State, and if the place of business of a party is located in that State, this place of business, for the purposes of this Convention, is considered not to be in a Contracting State, unless it is in a territorial unit to which the Convention extends. (4) If a Contracting State makes no declaration under paragraph (1) of this article, the Convention is to extend to all territorial units of that State. Article 94 (1) Two or more Contracting States which have the same or closely related legal rules on matters governed by this Convention may at any time declare that the Convention is not to apply to contracts of sale or to their formation where the parties have their places of business in those States. Such declarations may be made jointly or by reciprocal unilateral declarations. (2) A Contracting State which has the same or closely related legal rules on matters governed by this Convention as one or more non-Contracting States may at any time declare that the Convention is not to apply to contracts of sale or to their formation where the parties have their places of business in those States. (3) If a State which is the object of a declaration under the preceding paragraph subsequently becomes a Contracting State, the declaration made will, as from the date on which the Convention enters into force in respect of the new Contracting State, have the effect of a declaration made under paragraph (1), provided that the new Contracting State joins in such declaration or makes a reciprocal unilateral declaration. Article 95 Any State may declare at the time of the deposit of its instrument of ratification, acceptance, approval or accession that it will not be bound by subparagraph (1)(b) of article 1 of this Convention. s. 19 -- 102 of 154 -- Part 3—Amendments to Goods Act 1958 and Consequential Repeals Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 95 Article 96 A Contracting State whose legislation requires contracts of sale to be concluded in or evidenced by writing may at any time make a declaration in accordance with article 12 that any provision of article 11, article 29, or Part II of this Convention, that allows a contract of sale or its modification or termination by agreement or any offer, acceptance, or other indication of intention to be made in any form other than in writing, does not apply where any party has his place of business in that State. Article 97 (1) Declarations made under this Convention at the time of signature are subject to confirmation upon ratification, acceptance or approval. (2) Declarations and confirmations of declarations are to be in writing and be formally notified to the depositary. (3) A declaration takes effect simultaneously with the entry into force of this Convention in respect of the State concerned. However, a declaration of which the depositary receives formal notification after such entry into force takes effect on the first day of the month following the expiration of six months after the date of its receipt by the depositary. Reciprocal unilateral declarations under article 94 take effect on the first day of the month following the expiration of six months after the receipt of the latest declaration by the depositary. (4) Any State which makes a declaration under this Convention may withdraw it at any time by a formal notification in writing addressed to the depositary. Such withdrawal is to take effect on the first day of the month following the expiration of six months after the date of the receipt of the notification by the depositary. (5) A withdrawal of a declaration made under article 94 renders inoperative, as from the date on which the withdrawal takes effect, any reciprocal declaration made by another State under that article. Article 98 No reservations are permitted except those expressly authorized in this Convention. s. 19 -- 103 of 154 -- Part 3—Amendments to Goods Act 1958 and Consequential Repeals Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 96 Article 99 (1) This Convention enters into force, subject to the provisions of paragraph (6) of this article, on the first day of the month following the expiration of twelve months after the date of deposit of the tenth instrument of ratification, acceptance, approval or accession, including an instrument which contains a declaration made under article 92. (2) When a State ratifies, accepts, approves or accedes to this Convention after the deposit of the tenth instrument of ratification, acceptance, approval or accession, this Convention, with the exception of the Part excluded, enters into force in respect of that State, subject to the provisions of paragraph (6) of this article, on the first day of the month following the expiration of twelve months after the date of the deposit of its instrument of ratification, acceptance, approval or accession. (3) A State which ratifies, accepts, approves or accedes to this Convention and is a party to either or both the Convention relating to a Uniform Law on the Formation of Contracts for the International Sale of Goods done at The Hague on 1 July 1964 (1964 Hague Formation Convention) and the Convention relating to a Uniform Law on the International Sale of Goods done at The Hague on 1 July 1964 (1964 Hague Sales Convention) shall at the same time denounce, as the case may be, either or both the 1964 Hague Sales Convention and the 1964 Hague Formation Convention by notifying the Government of the Netherlands to that effect. (4) A State party to the 1964 Hague Sales Convention which ratifies, accepts, approves or accedes to the present Convention and declares or has declared under article 92 that it will not be bound by Part II of this Convention shall at the time of ratification, acceptance, approval or accession denounce the 1964 Hague Sales Convention by notifying the Government of the Netherlands to that effect. (5) A State party to the 1964 Hague Formation Convention which ratifies, accepts, approves or accedes to the present Convention and declares or has declared under article 92 that it will not be bound by Part III of this Convention shall at the time of ratification, acceptance, approval or accession denounce the 1964 Hague Formation Convention by notifying the Government of the Netherlands to that effect. s. 19 -- 104 of 154 -- Part 3—Amendments to Goods Act 1958 and Consequential Repeals Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 97 (6) For the purpose of this article, ratifications, acceptances, approvals and accessions in respect of this Convention by States parties to the 1964 Hague Formation Convention or to the 1964 Hague Sales Convention shall not be effective until such denunciations as may be required on the part of those States in respect of the latter two Conventions have themselves become effective. The depositary of this Convention shall consult with the Government of the Netherlands, as the depositary of the 1964 Conventions, so as to ensure necessary co-ordination in this respect. Article 100 (1) This Convention applies to the formation of a contract only when the proposal for concluding the contract is made on or after the date when the Convention enters into force in respect of the Contracting States referred to in sub- paragraph (1)(a) or the Contracting State referred to in sub- paragraph (1)(b) of article 1. (2) This Convention applies only to contracts concluded on or after the date when the Convention enters into force in respect of the Contracting States referred to in sub- paragraph (1)(a) or the Contracting State referred to in sub- paragraph (1)(b) of article 1. Article 101 (1) A Contracting State may denounce this Convention, or Part II or Part III of the Convention, by a formal notification in writing addressed to the depositary. (2) The denunciation takes effect on the first day of the month following the expiration of twelve months after the notification is received by the depositary. Where a longer period for the denunciation to take effect is specified in the notification, the denunciation takes effect upon the expiration of such longer period after the notification is received by the depositary. DONE at Vienna, this day of 11 April 1980, in a single original, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic. IN WITNESS WHEREOF the undersigned plenipotentiaries, being duly authorized by their respective Governments, have signed this Convention.". s. 19 -- 105 of 154 -- Part 3—Amendments to Goods Act 1958 and Consequential Repeals Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 98 20 Sale of Goods (Vienna Convention) Act 1987 The Sale of Goods (Vienna Convention) Act 1987 is repealed. 21 Sea-Carriage Documents Act 1998 The Sea-Carriage Documents Act 1998 is repealed. __________________ See: Act No. 35/1987 and amending Act No. 18/2005. LawToday: www. legislation. vic.gov.au s. 20 See: Act No. 24/1998. LawToday: www. legislation. vic.gov.au -- 106 of 154 -- Part 4—Amendments to Consumer Affairs Legislation Amendment Act 2010 Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 99 PART 4—AMENDMENTS TO CONSUMER AFFAIRS LEGISLATION AMENDMENT ACT 2010 22 Commencement of Consumer Affairs Legislation Amendment Act 2010 In section 2(5) of the Consumer Affairs Legislation Amendment Act 2010, for "January" substitute "September". 23 New Part 5B inserted into Fair Trading Act 1999 (1) In section 18 of the Consumer Affairs Legislation Amendment Act 2010, in proposed section 93E of the Fair Trading Act 1999 insert the following definitions— "consumer debt means any debt that is incurred by a natural person wholly or predominately in connection with personal, domestic or household purposes; debt includes an alleged debt; enforcement expenses has the same meaning as it has in the National Credit Code;". (2) In section 18 of the Consumer Affairs Legislation Amendment Act 2010, (a) in proposed section 93F(1)(a)(vii)(C) of the Fair Trading Act 1999, after "regulations" insert "(except if damages have been awarded under section 93N or 162AB)"; (b) after proposed section 93F(1)(a)(vii) of the Fair Trading Act 1999 insert— "(viii) who, in the preceding 5 years, has been found guilty of an offence against section 93M;". See: Act No. 1/2010. StatuteBook: www. legislation. vic.gov.au s. 22 -- 107 of 154 -- Part 4—Amendments to Consumer Affairs Legislation Amendment Act 2010 Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 100 (3) In section 18 of the Consumer Affairs Legislation Amendment Act 2010, after proposed section 93F(1)(b)(ii) of the Fair Trading Act 1999 insert— "(iia) has, in the preceding 5 years, been found guilty of an offence against section 93M; or". (4) In section 18 of the Consumer Affairs Legislation Amendment Act 2010, in proposed section 93F(1)(b)(iii) of the Fair Trading Act 1999— (a) before "60" insert "53A(2) or"; (b) after "Commonwealth" insert "while engaging in debt collection". (5) In section 18 of the Consumer Affairs Legislation Amendment Act 2010, for proposed section 93K(2) of the Fair Trading Act 1999 substitute— "(2) Subsection (1) does not apply in respect of a debt collector who is recovering or attempting to recover on behalf of a creditor enforcement expenses reasonably incurred by that creditor— (a) if a credit contract allows the recovery of those expenses; or Note See section 107 of the National Credit Code. (b) in the case of a debt that was not wholly or predominately accrued in connection with personal, domestic or household purposes, if a term of an agreement between the creditor and the debtor permits the recovery of those expenses. s. 23 -- 108 of 154 -- Part 4—Amendments to Consumer Affairs Legislation Amendment Act 2010 Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 101 (2A) It is a defence for an offence against subsection (1) that the debt collector had an honest and reasonable belief that the enforcement expenses that he or she was recovering or attempting to recover did not exceed those reasonably incurred by the creditor.". (6) In section 18 of the Consumer Affairs Legislation Amendment Act 2010, in proposed section 93K(4) of the Fair Trading Act 1999 insert the following definition— "credit contract has the meaning given by section 4 of the National Credit Code;". (7) In section 18 of the Consumer Affairs Legislation Amendment Act 2010, proposed section 93K(5) of the Fair Trading Act 1999 is repealed. (8) In section 18 of the Consumer Affairs Legislation Amendment Act 2010, for proposed section 93L of the Fair Trading Act 1999 substitute— "93L Offence to purchase debt for the purpose of collection A prohibited person must not knowingly purchase, or accept an assignment of, a consumer debt from a creditor for the purpose of collecting that debt. Penalty: In the case of a body corporate, 1200 penalty units; In any other case, 240 penalty units or 2 years imprisonment. s. 23 -- 109 of 154 -- Part 4—Amendments to Consumer Affairs Legislation Amendment Act 2010 Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 102 93M Prohibited debt collection practices (1) A person must not in trade or commerce engage in a prohibited debt collection practice while— (a) collecting or attempting to collect a debt; or (b) repossessing or attempting to repossess goods. Penalty: In the case of a body corporate, 1200 penalty units; In any other case, 240 penalty units. (2) In subsection (1), prohibited debt collection practice means— (a) using physical force or undue harassment or coercion; (b) entering or threatening to enter a private residence without lawful authority; (c) using any threat, deception or misrepresentation to obtain consent to enter a private residence; (d) refusing to leave a private residence or workplace when requested to do so; (e) doing or threatening to do any act that may intimidate a person or a member of that person's family; Example Carrying a firearm within the meaning of the Firearms Act 1996 or a dangerous article within the meaning of the Control of Weapons Act 1990. s. 23 -- 110 of 154 -- Part 4—Amendments to Consumer Affairs Legislation Amendment Act 2010 Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 103 (f) doing or threatening to do any act that may expose to ridicule a person or a member of that person's family; Example Parking a vehicle outside a debtor's private residence that displays information that a person is engaged in debt collection. (g) using a document that is not an official document but that resembles or purports to be an official document; Examples Any document that gives the appearance of having been authorised, issued or approved by a court, government or government agency when it has not been. Serving a summons that has not been issued. (h) impersonating an employee or agent of the State, another state, a Territory or the Commonwealth; (i) attempting to take possession of or threatening to take possession of any property to which the person, or the person's principal, is not entitled to possession; Example Making a representation that immediate possession will be taken of a debtor's home or other property when a debt is not secured by that property or the creditor has not obtained judgment for the debt. (j) disclosing or threatening to disclose debt information, without the consent of the debtor, to any other person who does not have a clear and legitimate interest in the information; s. 23 -- 111 of 154 -- Part 4—Amendments to Consumer Affairs Legislation Amendment Act 2010 Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 104 Example Disclosing debt information when contacting a person who is not the debtor while attempting to locate or identify the debtor. (k) making a false or misleading representation in connection with— (i) the nature of a debt; or (ii) the extent of a debt; or (iii) the consequences of not paying a debt; or (iv) the method of recovering a debt; Examples Falsely representing that a debt is a fine or other pecuniary penalty, or that a person has committed an offence. Using a letterhead which is liable to mislead the person to whom the letter is sent as to the identity, status or role of the person who used the letterhead. Falsely representing to a person who is not a debtor that, in relation to a debt, the person must prove or make a statutory declaration that he or she does not owe the debt. Threatening to give a credit reporting agency information that could affect a person's creditworthiness that could not be given or that would, if given, be false or misleading. (l) contacting a person by a method that the person has asked not to be used, unless there is no other method available; (m) contacting a person about a debt after the person advises in writing that no further communication should be made about that debt, unless the contact is by way of— s. 23 -- 112 of 154 -- Part 4—Amendments to Consumer Affairs Legislation Amendment Act 2010 Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 105 (i) an action issued through a court or the Tribunal; or (ii) the threat of an action that the person to whom the debt is owed is entitled to issue through a court or the Tribunal and which the person intends to take; (n) communicating with a person under 18 years of age in relation to a debt, if the person is not the debtor; (o) demanding the payment of a debt from a person without having a belief on reasonable grounds that the person is— (i) the debtor or the debtor's agent or representative; and (ii) liable for the debt; (p) communicating with a person in a manner that is unreasonable in its frequency, nature or content. (3) In subsection (2), debtor includes a mortgagor or guarantor of a debtor. (4) For the purposes of subsection (2)(g), official document includes a summons, a court document, a Tribunal document, a notice issued under the Infringements Act 2006 and any other communication that is authorised, issued or approved by a court, the Tribunal, a government or a government agency. Note Section 38 of the Interpretation of Legislation Act 1984 defines document. s. 23 -- 113 of 154 -- Part 4—Amendments to Consumer Affairs Legislation Amendment Act 2010 Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 106 (5) This section does not apply to any of the following acting in an official capacity— (a) the sheriff or a sheriff's officer; (b) a member of the police force; (c) a bailiff; (d) any other employee or agent of the State, another state, a Territory or the Commonwealth. 93N Additional remedy for contraventions of section 93M (1) A natural person who has experienced humiliation or distress due to a course of conduct of another person in contravention of section 93M with respect to a consumer debt may apply to a court or the Tribunal for an order that the person engaging in that conduct, or a person involved in that conduct, pay damages of up to $10 000 (or another prescribed amount). (2) In subsection (1)— course of conduct means conduct that occurs on at least 2 occasions; person involved has the meaning given by section 145. (3) Subsection (1)— (a) applies in addition to any other available remedy; (b) is not intended to affect any other available remedy. (4) Clauses 28BB and 28GG of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 do not apply in a s. 23 -- 114 of 154 -- Part 4—Amendments to Consumer Affairs Legislation Amendment Act 2010 Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 107 proceeding where damages are sought under this section. (5) Part VBA of the Wrongs Act 1958 does not apply to a claim under this section.". 24 New section 18A inserted After section 18 of the Consumer Affairs Legislation Amendment Act 2010 insert— '18A Provisions relating to enforcement and remedies amended In sections 153(1) and 154(8)(a) and (b) of the Fair Trading Act 1999, before "or 6" insert ", 5B".' 25 Power to delegate—Owners Corporations Act 2006 Section 20 of the Consumer Affairs Legislation Amendment Act 2010 is repealed. 26 Notice of meetings—Owners Corporations Act 2006 In section 36(c) of the Consumer Affairs Legislation Amendment Act 2010, in proposed section 109(3)(d) of the Owners Corporations Act 2006, after "committee" insert "who is a lot owner". 27 Updated reference to prostitute and prostitution in Prostitution Control Act 1994 In section 42(2) of the Consumer Affairs Legislation Amendment Act 2010, for "Schedule 1" substitute "the Schedule". 28 New section 3B inserted into Prostitution Control Act 1994 In section 43 of the Consumer Affairs Legislation Amendment Act 2010, in proposed section 3B(1)(a) of the Prostitution Control Act 1994, for "endorsed" substitute "approved". s. 24 -- 115 of 154 -- Part 4—Amendments to Consumer Affairs Legislation Amendment Act 2010 Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 108 29 New section 18A inserted into Prostitution Control Act 1994 In section 44 of the Consumer Affairs Legislation Amendment Act 2010, in proposed section 18A(1) of the Prostitution Control Act 1994, for "sexual services" substitute "sex work services". 30 Amendment of licence—Prostitution Control Act 1994 In section 50 of the Consumer Affairs Legislation Amendment Act 2010, for "1994 Act" substitute "1994". 31 New section 52AAA inserted into Prostitution Control Act 1994 In section 55 of the Consumer Affairs Legislation Amendment Act 2010, in proposed section 52AAA(2) of the Prostitution Control Act 1994, after "approved by the Authority" insert "(which may require a photograph of the person)". 32 Entry to licensed premises by police—Prostitution Control Act 1994 Section 68(3) and (5) of the Consumer Affairs Legislation Amendment Act 2010 are repealed. 33 Power to serve an infringement notice under Prostitution Control Act 1994 In section 73(1)(c) of the Consumer Affairs Legislation Amendment Act 2010— (a) in proposed section 89A(3)(i) of the Prostitution Control Act 1994, after "61" insert "(1)"; s. 29 -- 116 of 154 -- Part 4—Amendments to Consumer Affairs Legislation Amendment Act 2010 Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 109 (b) after proposed section 89A(3)(i) of the Prostitution Control Act 1994 insert— "(ia) section 61(2);". 34 Amendments to Prostitution Control Act 1994 In item 22 of the Schedule to the Consumer Affairs Legislation Amendment Act 2010, in paragraphs (a) and (b), before "substitute" insert "(wherever occurring)". __________________ s. 34 -- 117 of 154 -- Part 5—Estate Agents Act 1980 Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 110 PART 5—ESTATE AGENTS ACT 1980 35 Definitions (1) In section 4(1) of the Estate Agents Act 1980— (a) in the definition of approved auditor— (i) in paragraph (b), for "accountant; and" substitute "accountant;"; (ii) paragraphs (c) and (d) are repealed; (b) in the definition of professional conduct rules, for "99(gg)" substitute "99(1)(gg)"; (c) the definitions of registered education and training organisation and registered office are repealed. (2) In section 4(1) of the Estate Agents Act 1980, for the definition of business day substitute— "business day means a day that is not— (a) a Saturday or a Sunday; or (b) a day that is appointed as a public holiday or public half-holiday throughout the whole of Victoria under the Public Holidays Act 1993;". (3) In section 4(1) of the Estate Agents Act 1980 insert the following definition— "registered address means an address recorded in the register as the address for the service of documents and communications of a licensed estate agent;". 36 Director may approve registered education and training organisations Sections 10A to 10D of the Estate Agents Act 1980 are repealed. s. 35 See: Act No. 9428. Reprint No. 10 as at 1 July 2008 and amending Act Nos 4/2008, 12/2008, 44/2008, 68/2009, 1/2010 and 6/2010. LawToday: www. legislation. vic.gov.au -- 118 of 154 -- Part 5—Estate Agents Act 1980 Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 111 37 Auctioneers of real estate For section 13B(2)(c) of the Estate Agents Act 1980 substitute— "(c) to a person who held an accredited auctioneer's certificate issued by the Authority before section 37 of the Consumer Affairs Legislation Amendment (Reform) Act 2010 came into operation.". 38 Application for estate agent's licence In section 17 of the Estate Agents Act 1980— (a) in subsection (2)(a)(ii), for "a registered office" substitute "the registered address"; (b) for subsection (4)(a)(iii) substitute— "(iii) its registered address; and". 39 The Register In section 33(3)(b) of the Estate Agents Act 1980, for "registered office" substitute "registered address". 40 Section 35 amended (1) Insert the following heading to section 35 of the Estate Agents Act 1980— "Registered address". (2) For section 35(1) of the Estate Agents Act 1980 substitute— "(1) Every licensed estate agent and every agent's representative must have, within Victoria, a registered address.". (3) In section 35(2) of the Estate Agents Act 1980 omit "registered office or". s. 37 -- 119 of 154 -- Part 5—Estate Agents Act 1980 Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 112 41 Name of the estate agency business Section 36 of the Estate Agents Act 1980 is repealed. 42 New section 38 substituted For section 38 of the Estate Agents Act 1980 substitute— "38 Offence to pretend to be a licensed estate agent A person must not display or exhibit outside or near the person's office, residence or place of business any sign or other matter that indicates or implies that the office, residence or place of business is that of a licensed estate agent unless the person is a licensed estate agent. Penalty: 60 penalty units.". 43 Sections 39 and 40 repealed Sections 39 and 40 of the Estate Agents Act 1980 are repealed. 44 Advertising For section 42(1) of the Estate Agents Act 1980 substitute— "(1) An estate agent must not publish any advertisement relating to or in connection with his or her business without specifying the name under which that agent carries on that business.". s. 41 -- 120 of 154 -- Part 5—Estate Agents Act 1980 Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 113 45 Sections relating to continuing professional development and employees statements repealed Sections 45, 45A, 45B and 46 of the Estate Agents Act 1980 are repealed. 46 Restriction on agent purchasing property In section 55 of the Estate Agents Act 1980— (a) for subsection (14)(a) and (b) substitute— "(a) the person receives the written consent of the vendor and a legal practitioner, conveyancer or accountant representing the vendor, but not the purchaser, to the sale; and (b) the person notifies the Director within 7 days of any consent received under paragraph (a)."; (b) subsection (15) is repealed. 47 Annual audit of trust accounts (1) At the foot of section 64(1) of the Estate Agents Act 1980 insert— "Penalty: 120 penalty units.". (2) For section 64(2)(b) of the Estate Agents Act 1980 substitute— "(b) as soon as the report is completed, deliver the report to the agent concerned.". (3) After section 64(2) of the Estate Agents Act 1980 insert— "(2A) Within 10 business days after receiving the report under subsection (2)(b), the agent must lodge a copy of it with the Director. Penalty: 120 penalty units.". s. 45 -- 121 of 154 -- Part 5—Estate Agents Act 1980 Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 114 48 Regulations (1) In section 99(1)(fa)(ii) of the Estate Agents Act 1980, after "apply" insert "to a natural person and a body corporate". (2) After section 99(2) of the Estate Agents Act 1980 insert— "(3) A power conferred by this Act to make regulations may be exercised— (a) either in relation to all cases to which the power extends, or in relation to all those cases subject to specified exceptions, or in relation to any specified case or class of case; and (b) so as to make, as respects the cases in relation to which the power is exercised— (i) the same provision for all cases in relation to which the power is exercised, or different provisions for different cases or classes of case, or different provisions for the same case or class of case for different purposes; or (ii) any such provision either unconditionally or subject to any specified condition. (4) Regulations under this Act may be made— (a) so as to apply at all times or at a specified time; and (b) so as to require matters affected by the regulations to be— (i) in accordance with specified standards or specified requirements; or s. 48 -- 122 of 154 -- Part 5—Estate Agents Act 1980 Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 115 (ii) approved by or to the satisfaction of specified persons or bodies or specified classes of persons or bodies; or (iii) as specified in both subparagraphs (i) and (ii); and (c) so as to apply, adopt or incorporate any matter contained in any document, whether— (i) wholly or partially or as amended by the regulations; or (ii) as in force at a particular time or as in force from time to time; and (d) so as to confer a discretionary authority or impose a duty on specified persons or bodies or specified classes of persons or bodies; and (e) so as to provide in specified cases or classes of case for the exemption of persons or things or classes of persons or things from any of the provisions of the regulations, whether unconditionally or on specified conditions and either wholly or to such an extent as is specified.". 49 Heading to Part IX amended In the heading to Part IX of the Estate Agents Act 1980, after "TRANSITIONAL" insert "AND SAVINGS". s. 49 -- 123 of 154 -- Part 5—Estate Agents Act 1980 Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 116 50 New section 102 inserted at end of Part IX At the end of Part IX of the Estate Agents Act 1980 insert— "102 Authorised financial institutions Despite the repeal of section 60(6), a financial institution to which the definition of authorised financial institution in that subsection applied immediately before the commencement of section 14 of the Consumer Affairs Legislation Amendment Act 2010 is taken to be a financial institution with which the Secretary has entered into an arrangement under section 60(1).". __________________ s. 50 -- 124 of 154 -- Part 6—Amendments to Conveyancers Act 2006 Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 117 PART 6—AMENDMENTS TO CONVEYANCERS ACT 2006 51 Name of conveyancing business Section 39 of the Conveyancers Act 2006 is repealed. 52 Displaying information and licence at places of business Section 59(1) and (2) of the Conveyancers Act 2006 are repealed. 53 Letterhead Section 60 of the Conveyancers Act 2006 is repealed. 54 Annual audit of trust records At the foot of section 84(1) of the Conveyancers Act 2006 insert— "Penalty: 120 penalty units". 55 Annual record of trust records audit or statutory declaration (1) In section 85(1) of the Conveyancers Act 2006, for "lodge with the Director a report of each audit of a" substitute "provide a licensee with a report of each audit of the". (2) In the penalty at the foot of section 85(1) of the Conveyancers Act 2006, for "120" substitute "25". s. 51 See: Act No. 75/2006 and amending Act Nos 12/2007, 17/2007, 12/2008, 2/2008, 68/2009 and 1/2010. LawToday: www. legislation. vic.gov.au -- 125 of 154 -- Part 6—Amendments to Conveyancers Act 2006 Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 118 (3) After section 85(1) of the Conveyancers Act 2006 insert— "(1A) Within 10 business days after receiving a report under subsection (1), the licensee must lodge a copy of the report with the Director. Penalty: 120 penalty units.". 56 Application of Fair Trading Act 1999 In section 183(3)(b) of the Conveyancers Act 2006, for "149A" substitute "149A,". __________________ s. 56 -- 126 of 154 -- Part 7—Amendments to Sale of Land Act 1962 Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 119 PART 7—AMENDMENTS TO SALE OF LAND ACT 1962 57 Sale of land prior to approval of plan (1) In section 9AA(1) of the Sale of Land Act 1962— (a) in paragraph (a)— (i) in subparagraph (i), for "subdivision; or" substitute "subdivision; and"; (ii) subparagraph (ii) is repealed; (b) at the foot of paragraph (b) insert— 'Note The expression "does not exceed 10 per cent" means that a deposit may be up to and including 10 per cent.'. (2) After section 9AA(1) of the Sale of Land Act 1962 insert— "(1A) A contract for the sale of a lot referred to in subsection (1) must include on the front page of that contract, a notice to the purchaser stating— (a) that subject to the limit set by subsection (1)(b), the purchaser may negotiate with the vendor about the amount of deposit moneys payable under the contract; and (b) that a substantial period of time may elapse between the day on which the purchaser signs the contract for sale and the day on which the purchaser becomes the registered proprietor of the lot; and s. 57 See: Act No. 6975. Reprint No. 13 as at 1 July 2008 and amending Act Nos 92/1990, 6/2008, 12/2008, 68/2009, 1/2010 and 23/2010. LawToday: www. legislation. vic.gov.au -- 127 of 154 -- Part 7—Amendments to Sale of Land Act 1962 Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 120 (c) that the value of the lot may change between the day on which the purchaser signs the contract for sale of that lot and the day on which the purchaser becomes the registered proprietor.". (3) For section 9AA(2) of the Sale of Land Act 1962 substitute— "(2) The deposit moneys paid by the purchaser before the registration of the plan under a prescribed contract of sale of a lot must be paid to the legal practitioner, conveyancer or licensed estate agent acting for the vendor.". (4) Section 9AA(3) and (4) of the Sale of Land Act 1962 are repealed. (5) For section 9AA(6) of the Sale of Land Act 1962 substitute— "(6) In this section (except subsection (1)(b)) and section 9AF, deposit moneys in relation to the sale of a lot includes any moneys which are part of the purchase price received by the vendor or on behalf of the vendor before the purchaser becomes entitled to a transfer or conveyance of the lot.". 58 Purchaser may call for a transfer on giving a mortgage back In section 29H(4) of the Sale of Land Act 1962, for "morgages" substitute "mortgages". 59 Power of purchaser to terminate a contract for sale of land In section 31(5) of the Sale of Land Act 1962— (a) in paragraph (d), for "body; or" substitute "body."; (b) paragraph (e) is repealed. s. 58 -- 128 of 154 -- Part 7—Amendments to Sale of Land Act 1962 Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 121 60 Savings provision inserted into Part 3 (1) In the heading to Part 3 of the Sale of Land Act 1962, before "TRANSITIONAL" insert "SAVINGS AND". (2) After section 50 of the Sale of Land Act 1962 insert— "51 Amendment to section 9AA—Consumer Affairs Legislation Amendment (Reform) Act 2010 Despite the commencement of section 65 of the Consumer Affairs Legislation Amendment (Reform) Act 2010, section 9AA of this Act as in force immediately before that commencement continues to apply— (a) in respect of any deposit moneys paid into a special purpose account established under section 9AA; (b) for the purposes of the reference to section 9AA in section 9AE(1) in respect of a relevant contract of sale that was signed before that commencement.". __________________ s. 60 -- 129 of 154 -- Part 8—Standardisation of Infringements Powers in Consumer Acts Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 122 PART 8—STANDARDISATION OF INFRINGEMENTS POWERS IN CONSUMER ACTS 61 Funerals Act 2006 After section 81 of the Funerals Act 2006 insert— "81A Infringement notices (1) An authorised officer may serve an infringement notice on any person who the officer has reason to believe has committed an offence against this Act or the regulations that is prescribed for the purposes of this subsection. (2) An offence referred to in subsection (1) for which an infringement notice may be served is an infringement offence within the meaning of the Infringements Act 2006. (3) The infringement penalty for an offence prescribed for the purposes of subsection (1) is the prescribed infringement penalty. (4) In this section authorised officer means— (a) an inspector; (b) a member of the police force; (c) a person authorised in writing by the Director.". See: Act No. 77/2006 and amending Act Nos 17/2007 and 1/2010. LawToday: www. legislation. vic.gov.au s. 61 -- 130 of 154 -- Part 8—Standardisation of Infringements Powers in Consumer Acts Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 123 62 Owners Corporations Act 2006 After section 203 of the Owners Corporations Act 2006 insert— "203A Infringement notices (1) An authorised officer may serve an infringement notice on any person who the officer has reason to believe has committed an offence against this Act that is prescribed for the purposes of this subsection. (2) An offence referred to in subsection (1) for which an infringement notice may be served is an infringement offence within the meaning of the Infringements Act 2006. (3) The infringement penalty for an offence prescribed for the purposes of subsection (1) is the prescribed infringement penalty. (4) In this section authorised officer means— (a) an inspector; (b) a member of the police force; (c) a person authorised in writing by the Director.". 63 Travel Agents Act 1986 (1) In section 39ZC of the Travel Agents Act 1986, for "specified in the Schedule" substitute "or the regulations that is prescribed for the purposes of this subsection". (2) Section 39ZD of the Travel Agents Act 1986 is repealed. (3) The Schedule to the Travel Agents Act 1986 is repealed. s. 62 See: Act No. 69/2006 and amending Act Nos 2/2008 and 1/2010. LawToday: www. legislation. vic.gov.au See: Act No. 52/1986. Reprint No. 5 as at 31 July 2008 and amending Act Nos 4/2008, 2/2009, 68/2009 and 1/2010. LawToday: www. legislation. vic.gov.au -- 131 of 154 -- Part 8—Standardisation of Infringements Powers in Consumer Acts Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 124 64 Residential Tenancies Act 1997 (1) In section 510C of the Residential Tenancies Act 1997, for "specified in Schedule 2" substitute "or the regulations that is prescribed for the purposes of this subsection". (2) Section 510D of the Residential Tenancies Act 1997 is repealed. (3) Schedule 2 to the Residential Tenancies Act 1997 is repealed. 65 Retirement Villages Act 1986 After section 42A of the Retirement Villages Act 1986 insert— "42B Infringement notices (1) An authorised officer may serve an infringement notice on any person who the officer has reason to believe has committed an offence against this Act or the regulations that is prescribed for the purposes of this subsection. (2) An offence referred to in subsection (1) for which an infringement notice may be served is an infringement offence within the meaning of the Infringements Act 2006. (3) The infringement penalty for an offence prescribed for the purposes of subsection (1) is the prescribed infringement penalty. (4) In this section authorised officer means— (a) a person appointed under section 114 of the Fair Trading Act 1999; (b) a member of the police force; See: Act No. 109/1997. Reprint No. 5 as at 15 January 2009 and amending Act Nos 19/2009, 68/2009, 1/2010 and 32/2010. LawToday: www. legislation. vic.gov.au s. 64 See: Act No. 126/1986. Reprint No. 6 as at 11 June 2009 and amending Act Nos 1/2010 and 13/2010. LawToday: www. legislation. vic.gov.au -- 132 of 154 -- Part 8—Standardisation of Infringements Powers in Consumer Acts Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 125 (c) a person authorised in writing by the Director.". 66 Sale of Land Act 1962 After section 48A of the Sale of Land Act 1962 insert— "48B Infringement notices (1) An authorised officer may serve an infringement notice on any person who the officer has reason to believe has committed an offence against this Act or the regulations that is prescribed for the purposes of this subsection. (2) An offence referred to in subsection (1) for which an infringement notice may be served is an infringement offence within the meaning of the Infringements Act 2006. (3) The infringement penalty for an offence prescribed for the purposes of subsection (1) is the prescribed infringement penalty. (4) In this section authorised officer means— (a) a person appointed under section 114 of the Fair Trading Act 1999; (b) a member of the police force; (c) a person authorised in writing by the Director of Consumer Affairs Victoria.". __________________ s. 66 -- 133 of 154 -- Part 9—Amendments to Fair Trading Act 1999 Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 126 PART 9—AMENDMENTS TO FAIR TRADING ACT 1999 67 Small claim commenced in a court After section 112A(2) of the Fair Trading Act 1999 insert— "(3) If the court dismisses the proceedings under subsection (2), the court must not make an order as to costs in respect of those proceedings.". 68 Section 143 amended (1) Insert the following heading to section 143 of the Fair Trading Act 1999— "Contraventions by bodies corporate". (2) In section 143 of the Fair Trading Act 1999— (a) in subsection (1), after "contravenes" insert "or commits an offence against"; (b) in subsection (2), after "against and" insert ", in the case of an offence,"; (c) in subsection (3), for "an offence committed by the body corporate against this Act" substitute "a contravention of this Act by the body corporate". 69 Defences In section 155(2) of the Fair Trading Act 1999, for "subsection (1)(b)" substitute "subsection (1)(a)". s. 67 -- 134 of 154 -- Part 9—Amendments to Fair Trading Act 1999 Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 127 70 New sections 162AA and 162AB inserted Before section 162A of the Fair Trading Act 1999 insert— "162AA Prohibited debt collection practices (1) A person must not in trade or commerce engage in a prohibited debt collection practice while— (a) collecting or attempting to collect a debt; or (b) repossessing or attempting to repossess goods. Penalty: In the case of a body corporate, 1200 penalty units; In any other case, 240 penalty units. (2) In subsection (1), prohibited debt collection practice means— (a) using physical force or undue harassment or coercion; (b) entering or threatening to enter a private residence without lawful authority; (c) using any threat, deception or misrepresentation to obtain consent to enter a private residence; (d) refusing to leave a private residence or workplace when requested to do so; s. 70 -- 135 of 154 -- Part 9—Amendments to Fair Trading Act 1999 Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 128 (e) doing or threatening to do any act that may intimidate a person or a member of that person's family; Example Carrying a firearm within the meaning of the Firearms Act 1996 or a dangerous article within the meaning of the Control of Weapons Act 1990. (f) doing or threatening to do any act that may expose to ridicule a person or a member of that person's family; Example Parking a vehicle outside a debtor's private residence that displays information that a person is engaged in debt collection. (g) using a document that is not an official document but that resembles or purports to be an official document; Examples Any document that gives the appearance of having been authorised, issued or approved by a court, government or government agency when it has not been. Serving a summons that has not been issued. (h) impersonating an employee or agent of the State, another state, a Territory or the Commonwealth; (i) attempting to take possession of or threatening to take possession of any property to which the person, or the person's principal, is not entitled to possession; Example Making a representation that immediate possession will be taken of a debtor's home or other property when a debt is not secured by s. 70 -- 136 of 154 -- Part 9—Amendments to Fair Trading Act 1999 Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 129 that property or the creditor has not obtained judgment for the debt. (j) disclosing or threatening to disclose debt information, without the consent of the debtor, to any other person who does not have a clear and legitimate interest in the information; Example Disclosing debt information when contacting a person who is not the debtor while attempting to locate or identify the debtor. (k) making a false or misleading representation in connection with— (i) the nature of a debt; or (ii) the extent of a debt; or (iii) the consequences of not paying a debt; or (iv) the method of recovering a debt; Examples Falsely representing that a debt is a fine or other pecuniary penalty, or that a person has committed an offence. Using a letterhead which is liable to mislead the person to whom the letter is sent as to the identity, status or role of the person who used the letterhead. Falsely representing to a person who is not a debtor that, in relation to a debt, the person must prove or make a statutory declaration that he or she does not owe the debt. Threatening to give a credit reporting agency information that could affect a person's creditworthiness that could not be given or that would, if given, be false or misleading. s. 70 -- 137 of 154 -- Part 9—Amendments to Fair Trading Act 1999 Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 130 (l) contacting a person by a method that the person has asked not to be used, unless there is no other method available; (m) contacting a person about a debt after the person advises in writing that no further communication should be made about that debt, unless the contact is by way of— (i) an action issued through a court or the Tribunal; or (ii) the threat of an action that the person to whom the debt is owed is entitled to issue through a court or the Tribunal and which the person intends to take; (n) communicating with a person under 18 years of age in relation to a debt, if the person is not the debtor; (o) demanding the payment of a debt from a person without having a belief on reasonable grounds that the person is— (i) the debtor or the debtor's agent or representative; and (ii) liable for the debt; (p) communicating with a person in a manner that is unreasonable in its frequency, nature or content. (3) In subsection (2), debtor includes a mortgagor or guarantor of a debtor. (4) For the purposes of subsection (2)(g), official document includes a summons, a court document, a Tribunal document, a notice issued under the Infringements Act 2006 and any other communication that is s. 70 -- 138 of 154 -- Part 9—Amendments to Fair Trading Act 1999 Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 131 authorised, issued or approved by a court, the Tribunal, a government or a government agency. Note Section 38 of the Interpretation of Legislation Act 1984 defines document. (5) This section does not apply to any of the following acting in an official capacity— (a) the sheriff or a sheriff's officer; (b) a member of the police force; (c) a bailiff; (d) any other employee or agent of the State, another state, a Territory or the Commonwealth. (6) In this section, debt includes an alleged debt. 162AB Additional remedy for contraventions of section 162AA (1) A natural person who has experienced humiliation or distress due to a course of conduct of another person in contravention of section 162AA with respect to a consumer debt may apply to a court or the Tribunal for an order that the person engaging in that conduct, or a person involved in that conduct, pay damages of up to $10 000 (or another prescribed amount). (2) In subsection (1)— consumer debt means any debt that is incurred by a natural person wholly or predominately in connection with personal, domestic or household purposes; course of conduct means conduct that occurs on at least two occasions; s. 70 -- 139 of 154 -- Part 9—Amendments to Fair Trading Act 1999 Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 132 person involved has the meaning given by section 145. (3) Subsection (1)— (a) applies in addition to any other available remedy; (b) is not intended to affect any other available remedy. (4) Clauses 28BB and 28GG of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 do not apply in a proceeding where damages are sought under this section. (5) Part VBA of the Wrongs Act 1958 does not apply to a claim under this section.". 71 Sections 162AA and 162AB repealed Sections 162AA and 162AB of the Fair Trading Act 1999 are repealed. 72 Savings and transitional (1) In Schedule 3 to the Fair Trading Act 1999, in clause 16(1) and (2), for "1 January 2011" substitute "section 18 of the Consumer Affairs Legislation Amendment Act 2010 comes into operation". (2) At the end of Schedule 3 to the Fair Trading Act 1999 insert— "22 Transitional provision for repeal of Carriers and Innkeepers Act 1958 (1) A notice in accordance with the Fourth Schedule to the Carriers and Innkeepers Act 1958 as in force immediately before the commencement day, displayed in accordance with Part 5C of this Act, is taken, for a period of one month after the s. 71 -- 140 of 154 -- Part 9—Amendments to Fair Trading Act 1999 Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 133 commencement day, to be the notice set out in Schedule 2A to this Act. (2) In this clause, commencement day means that day on which section 14 of the Consumer Affairs Legislation Amendment (Reform) Act 2010 comes into operation. 23 Transitional provision for repeal of Part IVA of Landlord and Tenant Act 1958 (1) Part IVA of the Landlord and Tenant Act 1958 continues to apply at the end or other determination of a lease of premises to which that Part applied immediately before the commencement day. (2) In this clause, commencement day means that day on which section 75 of the Consumer Affairs Legislation Amendment (Reform) Act 2010 comes into operation.". __________________ s. 72 -- 141 of 154 -- Part 10—Amendment to the Business Licensing Authority Act 1998 Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 134 PART 10—AMENDMENT TO THE BUSINESS LICENSING AUTHORITY ACT 1998 73 Constitution of Authority (1) Section 5(1)(b) of the Business Licensing Authority Act 1998 is repealed. (2) For section 5(5) and (6) of the Business Licensing Authority Act 1998 substitute— "(5) Despite the alteration made to the constitution of the Authority by section 73 of the Consumer Affairs Legislation Amendment (Reform) Act 2010, the Authority is taken to be the same body after the commencement of that section as it was before that commencement.". __________________ s. 73 -- 142 of 154 -- Part 11—Amendments to Prostitution Control Act 1994 Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 135 PART 11—AMENDMENTS TO PROSTITUTION CONTROL ACT 1994 74 Persons to answer questions in relation to suspected non-licensed sex work service providing business In section 61DA(3) of the Prostitution Control Act 1994, for "refuse" substitute ", refuse". __________________ s. 74 See: Act No. 102/1994. Reprint No. 6 as at 1 May 2008 and amending Act Nos 4/2008, 12/2008, 24/2008, 46/2008, 82/2008, 25/2009, 68/2009, 69/2009 and 1/2010. LawToday: www. legislation. vic.gov.au -- 143 of 154 -- Part 12—Miscellaneous Amendments and Repeals Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 136 PART 12—MISCELLANEOUS AMENDMENTS AND REPEALS Division 1—Repeal 75 Landlord and Tenant Act 1958 The Landlord and Tenant Act 1958 is repealed. Division 2—Consequential and other amendments 76 Motor Car Traders Act 1986 (1) In section 3(1) of the Motor Car Traders Act 1986, in the definition of owner, for "bill of sale" (where twice occurring) substitute "goods mortgage". (2) In section 28(3) of the Motor Car Traders Act 1986— (a) in paragraph (a)— (i) before "convicted" insert "or has been"; (ii) before "disqualified" insert "or has been"; See: Act No. 6285. Reprint No. 9 as at 19 August 2004 and amending Act Nos 18/2005, 12/2008, 44/2008, 68/2009 and 1/2010. LawToday: www. legislation. vic.gov.au s. 75 See: Act No. 104/1986. Reprint No. 6 as at 1 December 2006 and amending Act Nos 17/2007, 2/2008, 4/2008, 12/2008, 68/2009 and 11/2010. LawToday: www. legislation. vic.gov.au -- 144 of 154 -- Part 12—Miscellaneous Amendments and Repeals Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 137 (b) in paragraph (b)— (i) omit "still"; (ii) after "days" insert "or more". (3) For section 29A(1) of the Motor Car Traders Act 1986 substitute— "(1) This section applies to a person— (a) in relation to whom a claim has been admitted against the Fund; (b) who was a partner or director of, or a person concerned in the management of, a partnership or body corporate that has had a claim admitted against the Fund in relation to an act or omission that occurred at the time the person was a partner or director of, or a person concerned in the management of, the partnership or body corporate.". 77 Owners Corporations Act 2006 (1) In section 11 of the Owners Corporations Act 2006 paragraph (a) is repealed. (2) At the end of section 11 of the Owners Corporations Act 2006 insert— "(2) An owners corporation may by instrument or resolution delegate any power or function of the owners corporation (other than a power or function that requires a unanimous resolution or a special resolution or this power of delegation) to the committee of the owners corporation. (3) The instrument of delegation or resolution under subsection (1) or (2) must be made at a general meeting. s. 77 -- 145 of 154 -- Part 12—Miscellaneous Amendments and Repeals Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 138 (4) A delegation to the committee of the owners corporation under subsection (2) ceases to have effect at the next annual general meeting after the instrument or resolution is made if not sooner revoked. Note An owners corporation may, by resolution, ratify any decision made by a committee before section 33 of the Consumer Affairs Legislation Amendment Act 2010 came into operation.". (3) After section 21(2) of the Owners Corporations Act 2006 insert— "(2A) Despite subsection (1), the sealing of an owners corporation certificate in accordance with section 151(4)(c) may be witnessed by— (a) the registered manager; or (b) the chairperson of the owners corporation elected under section 98.". 78 Residential Tenancies Act 1997 (1) After section 14(2) of the Residential Tenancies Act 1997 insert— "(3) This Act does not apply to premises that were prescribed premises within the meaning of Part V of the Landlord and Tenant Act 1958 immediately before that Act was repealed.". (2) Section 15(1) of the Residential Tenancies Act 1997 is repealed. s. 78 -- 146 of 154 -- Part 12—Miscellaneous Amendments and Repeals Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 139 (3) After Division 3 of Schedule 1 to the Residential Tenancies Act 1997 insert— "Division 4—Consumer Affairs Legislation Amendment (Reform) Act 2010 12 Commencement day In this Division, commencement day means the day on which section 75 of the Consumer Affairs Legislation Amendment (Reform) Act 2010 comes into operation. 13 Saving for protected tenants Part V of the Landlord and Tenant Act 1958 continues to apply to a lease of premises to which that Part applied immediately before the commencement day for so long as those premises remain prescribed premises. 14 Part V leases of prescribed premises to be transitioned to Residential Tenancies Act 1997 except in certain circumstances (1) If a lessee in possession of premises to which Part V of the Landlord and Tenant Act 1958 applies dies on or after the commencement day, only the partner of the lessee who is residing with the lessee at the time of that death may take over the protected tenancy pursuant to section 106 of that Act. (2) Despite section 14(3) and except in the circumstances described in subclause (1), Part V of the Landlord and Tenant Act 1958 will cease to apply on and from the date of death of a lessee who was in possession of premises under a lease to which that Part applied.". s. 78 -- 147 of 154 -- Part 12—Miscellaneous Amendments and Repeals Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 140 79 Travel Agents Act 1986 (1) In section 3(1) of the Travel Agents Act 1986 insert the following definition— "manager means a person who is present and in charge of the day-to-day operations of a place of business;". (2) For section 33 of the Travel Agents Act 1986 substitute— "33 Licensee must supervise conduct of business A licensee must ensure that the business conducted at any place from which a licensee carries on business as a travel agent is supervised by a manager (whether or not a licensee) with qualifications approved by the Director. Penalty: 60 penalty units.". 80 Victorian Civil and Administrative Tribunal Act 1998 After clause 51AD of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 insert— "51ADA Tribunal may make orders for costs incurred by owners corporations (1) The Tribunal may make an order for costs under section 109 incurred by a lot owner or an owners corporation, either directly or indirectly (including the costs of professional and volunteer managers), in an application to the Tribunal relating to the recovery of fees and charges imposed by an owners corporation under Division 1 of Part 3 of the Owners Corporations Act 2006. s. 79 See: Act No. 53/1998. Reprint No. 6 as at 1 January 2009 and amending Act Nos 46/2008, 76/2008, 78/2008, 6/2009, 14/2009, 21/2009, 68/2009 and 6/2010. LawToday: www. legislation. vic.gov.au -- 148 of 154 -- Part 12—Miscellaneous Amendments and Repeals Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 141 (2) Costs awarded under subclause (1) are not limited to costs incurred by a professional advocate under section 62.". 81 Consequential amendments for change of short title of Prostitution Control Act 1994 An Act specified in a heading to an item in the Schedule is amended as set out in that item. Division 3—Repeal of amending Act 82 Repeal of amending Act This Act is repealed on 1 September 2012. Note The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). __________________ s. 81 -- 149 of 154 -- Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 142 SCHEDULE Section 81 CONSEQUENTIAL AMENDMENTS FOR CHANGE OF SHORT TITLE OF PROSTITUTION CONTROL ACT 1994 1 Business Licensing Authority Act 1998 1.1 In section 3, in paragraph (e) of the definition of business licensing Act, for "Prostitution Control Act 1994" substitute "Sex Work Act 1994". 1.2 In section 6(a)(v), for "Prostitution Control Act 1994" substitute "Sex Work Act 1994". 1.3 In section 20, in paragraphs (a) and (d) of the definition of licence, for "Prostitution Control Act 1994" substitute "Sex Work Act 1994". 1.4 In section 22(2)(c) and (5), for "Prostitution Control Act 1994" substitute "Sex Work Act 1994". 2 Confiscation Act 1997 2.1 In clause 17 of Schedule 1, for "Prostitution Control Act 1994 (prostitution" substitute "Sex Work Act 1994 (sex work". 2.2 In item 2A of Schedule 2— (a) for "Prostitution Control Act 1994" substitute "Sex Work Act 1994"; (b) in paragraphs (d) and (e), for "prostitution" substitute "sex work". 3 Consumer Affairs Legislation Amendment (Reform) Act 2010 3.1 In the heading to Part 10, for "PROSTITUTION CONTROL" substitute "SEX WORK". Sch. -- 150 of 154 -- Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 143 3.2 In sections 73 and 74 for "Prostitution Control" substitute "Sex Work". 4 Crimes Act 1958 In section 60B(2)(a)(ia)(A), for "Prostitution Control Act 1994" substitute "Sex Work Act 1994". 5 Criminal Procedure Act 2009 5.1 For the heading to item 24 of Schedule 2 substitute— "Sex Work Act 1994". 5.2 In items 24.1 and 24.2 of Schedule 2, for "Prostitution Control Act 1994" substitute "Sex Work Act 1994". 6 Fair Trading Act 1999 6.1 In section 29(2), for "prostitution services within the meaning of the Prostitution Control Act 1994" substitute "sex work services within the meaning of the Sex Work Act 1994". 6.2 In section 106C, in paragraphs (a)(iii) and (d) of the definition of licence, for "Prostitution Control Act 1994" substitute "Sex Work Act 1994". 6.3 In section 106E(2)(c) and (5), for "Prostitution Control Act 1994" substitute "Sex Work Act 1994". 6.4 In Schedule 1, omit "Prostitution Control Act 1994". 6.5 In Schedule 1, after "Second-Hand Dealers and Pawnbrokers Act 1989" insert "Sex Work Act 1994". 7 Introduction Agents Act 1997 7.1 In section 13(1), for "Prostitution Control Act 1994" substitute "Sex Work Act 1994". Sch. -- 151 of 154 -- Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 144 7.2 In section 14(1)(e), for "Prostitution Control Act 1994" substitute "Sex Work Act 1994". 7.3 For section 20(2) substitute— "(2) In this section brothel, escort agency and sex work service provider have the same meanings as they have in the Sex Work Act 1994.". 8 Police Regulation Act 1958 In item 3.1 of the First Schedule, for "Prostitution Control Act 1994" substitute "Sex Work Act 1994". 9 Public Health and Wellbeing Act 2008 9.1 In section 3(1), in the definitions of brothel, escort agency and sexual services for "Prostitution Control Act 1994" substitute "Sex Work Act 1994". 9.2 In section 165(1), for "Prostitution Control Act 1994" substitute "Sex Work Act 1994". 10 Sentencing Act 1991 In clause 1(db) of Schedule 1— (a) for "Prostitution Control Act 1994" substitute "Sex Work Act 1994"; (b) in subparagraphs (i) and (iv), for "prostitution" substitute "sex work". 11 Serious Sex Offenders (Detention and Supervision) Act 2009 11.1 In item 29 of Schedule 1— (a) for "Prostitution Control Act 1994" substitute "Sex Work Act 1994"; (b) for "prostitution" substitute "sex work". Sch. -- 152 of 154 -- Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 145 11.2 In items 30 and 31 of Schedule 1, for "Prostitution Control Act 1994" substitute "Sex Work Act 1994". 11.3 In item 32 of Schedule 1— (a) for "Prostitution Control Act 1994" substitute "Sex Work Act 1994"; (b) for "prostitution" substitute "sex work". 12 Sex Offenders Registration Act 2004 12.1 In item 21 of Schedule 2— (a) for "Prostitution Control Act 1994" substitute "Sex Work Act 1994"; (b) for "prostitution" substitute "sex work". 12.2 In items 22 and 23 of Schedule 2, for "Prostitution Control Act 1994" substitute "Sex Work Act 1994". 12.3 In item 24 of Schedule 2— (a) for "Prostitution Control Act 1994" substitute "Sex Work Act 1994"; (b) for "prostitution" substitute "sex work". 13 Summary Offences Act 1966 In section 18(4), for "Prostitution Control Act 1994" substitute "Sex Work Act 1994". ═══════════════ Sch. -- 153 of 154 -- Consumer Affairs Legislation Amendment (Reform) Act 2010 No. 63 of 2010 146 ENDNOTES † Minister's second reading speech— Legislative Assembly: 28 July 2010 Legislative Council: 12 August 2010 The long title for the Bill for this Act was "A Bill for an Act to amend the Fair Trading Act 1999, the Goods Act 1958 and other Consumer Acts, to repeal the Disposal of Uncollected Goods Act 1961, the Carriers and Innkeepers Act 1958, the Introduction Agents Act 1997, the Sale of Goods (Vienna Convention) Act 1987, the Sea-Carriage Documents Act 1998 and the Landlord and Tenant Act 1958 and for other purposes." Endnotes -- 154 of 154 --