Fair Trading (Amendment) Act 2003

i Fair Trading (Amendment) Act 2003 Act No. 30/2003 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1. Purposes 1 2. Commencement 3 PART 2—AMENDMENTS TO THE FAIR TRADING ACT 1999 4 3. Purposes 4 4. Definitions 4 5. New section 6 substituted 6 6. Extra-territorial application of this Act 6 6. Amendment to penalty provisions in Part 2 6 7. Referral selling 6 8. Pyramid selling 7 9. Right to payment for unauthorised entry or advertisement 7 10. Address to be included in documents 8 11. Insertion of new Part 2A 10 PART 2A—IMPLIED CONDITIONS AND WARRANTIES IN CERTAIN CONTRACTS OF SUPPLY 10 Division 1—Interpretation 10 32A. Definitions 10 32B. What are conditions and warranties? 11 32BA. What are antecedent negotiations? 11 32C. When is a person "aware" of a fact, matter or circumstance? 12 Division 2—Application of Part 12 32CA. Application of Part 12 32D. This Part applies to certain kinds of contracts 13 32DA. This Part does not apply to certain kinds of contracts 13 32E. How is "cash price" determined for contracts generally? 14 32EA. How is "cash price" determined for leases of goods? 16 32EB. Presumption that this Part applies to supply 16 32F. Application of Part to mixed contracts 17 32FA. Application of Goods Act 1958 to contracts of supply 17 -- 1 of 143 -- Section Page ii Division 3—Supply of Goods or Services 18 32G. Terms implied in contracts as to right to supply 18 32GA. Transfer of limited interest in goods 19 32GB. Terms implied in leases as to right to hire 20 32H. Supply of goods by description 21 32HA. Supply of goods by sample 21 32I. Merchantable quality of goods supplied 22 32IA. Fitness of goods for purpose 23 32J. Implied conditions in supply of services 23 32JA. Fitness of services for purpose 24 32K. Supply of services by demonstration 25 32KA. Terms implied in contracts of supply of both services and goods 26 32L. Contract cannot exclude this Part 27 32LA. Contract cannot exclude liability for damages 27 32M. Penalties for including void provisions 28 32MA. Limitation of liability generally 29 32N. Limitation of liability in relation to supply of recreational services 31 32NA. Exemption from waiver form requirement 34 32NB. Supplier to have reasonable opportunity to make good title 36 32O. Acceptance of goods 36 32OA. Rescission for innocent misrepresentation 38 32P. Discharge or rescission of contract of supply of goods 39 32PA. When does a discharge or rescission have effect? 40 32Q. Liability of supplier and person conducting antecedent negotiations 41 32QA. Indemnity for supplier or dealer 43 32R. Certain contracts or provisions void 43 32RA. Penalty for including void provision relating to antecedent negotiations 44 Division 4—General 44 32S. Implied terms do not negative express terms unless inconsistent 44 32SA. Limit of liability of guarantors 44 32T. Limit of liability under security 47 32TA. Contract of supply not illegal etc. 48 12. Insertion of new Part 2B 48 PART 2B—UNFAIR TERMS IN CONSUMER CONTRACTS 48 32U. Definitions 48 32V. Application of Part 49 32W. What is an unfair term? 49 -- 2 of 143 -- Section Page iii 32X. Assessment of unfair terms 49 32Y. Effect of unfair term 51 32Z. Offences relating to prescribed unfair terms 51 32ZA. Injunctions to prevent continued use of unfair terms 52 32ZB. Director may require the supply of information 52 32ZC. Declaration by the Tribunal 54 32ZD. Advisory opinion by the Tribunal 54 13. Interim ban order 55 14. Permanent or fixed term ban order 55 15. General power to make permanent ban order or fixed term ban order 55 16. New section 41 substituted 57 41. When does a permanent ban order or a fixed term ban order take effect? 57 17. Notice of order 58 18. New section 43 substituted 58 43. Revocation or amendment of permanent ban order or fixed term ban order 58 19. Offence to contravene permanent ban order or fixed term ban order 58 20. Loss, injury or damage arising from a contravention of this Division 58 21. Compulsory recall 58 22. Review of ban order or compulsory recall notice 59 23. Off-Business-Premises Sales 59 24. Application 59 25. What is a contact sales agreement? 60 26. Requirements for contact sales agreements 60 27. New sections 62A, 62B, 62C, 62D and 62E inserted 61 62A. Duty to obtain prior consent to visit 61 62B. Duty not to remain on premises for long periods 63 62C. Duty to leave premises 64 62D. Duty to produce identification 64 62E. Duty to inform 65 28. When can the purchaser cancel the agreement? 66 29. What can the supplier charge on cancellation? 67 30. Requirements for non-contact sales agreements 67 31. When can the purchaser cancel the agreement? 68 32. Sections 76 and 77 repealed 68 33. New section 80 substituted 68 80. Prohibition on payment for services during cooling-off period 68 34. Statement of lay-by terms 69 35. New section 84A inserted 69 84A. Lay-by goods must be available 69 36. Cancellation of lay-by by purchaser 69 37. Cancellation where business closes 70 -- 3 of 143 -- Section Page iv 38. Cancellation charge must not exceed a reasonable amount 70 39. Director of Consumer Affairs Victoria 70 40. Functions and powers of the Director 71 41. Part 8 headings amended 71 42. Conciliation 72 43. Power of the Director to institute and defend proceedings 72 44. Proceedings and costs 72 45. New Divisions 2, 3 and 4 inserted in Part 8 73 Division 2—Suppliers 73 106A. Substantiation of claims 73 106B. "Show cause" notice 74 Division 3—Licence Suspension 77 106C. Definitions 77 106D. Director may suspend licence 78 106E. Effect of suspension 80 106F. Lapsing or continuation of suspension 82 106G. Extension of period 83 106H. Right of review 84 Division 4—Obtaining Information, Documents and Evidence 84 106I. Power to obtain information, documents and evidence 84 106J. Powers in relation to documents 86 106K. Copies of seized documents 87 106L. Retention and return of seized documents 87 106M. Magistrates' Court may extend 3 month period 88 106N. Complaints 89 106O. Service of documents 89 106P. Confidentiality 89 46. Consumer and trader disputes 90 47. Definition of consumer and trader dispute 90 48. New section 107A inserted 91 107A. What is a small claim? 91 49. Settlement of consumer and trader disputes 91 50. Exclusion of other jurisdiction 92 51. New sections 112A and 112B inserted 92 112A. Small claim commenced in a court 92 112B. Small Claims Suspense Account 93 52. New section 113A inserted 94 113A. Tribunal may order the provision of information 94 53. Publisher to produce information 94 54. Emergency entry 95 55. New section 129 substituted 95 129. Magistrates' Court may extend 3 month period 95 -- 4 of 143 -- Section Page v 56. New section 144 substituted 96 144. Conduct by officers, employees or agents 96 57. Repeal of section 145 98 58. New section 145 inserted 99 145. Interpretation 99 59. New sections 151A, 151B and 151C inserted 99 151A. Cease trading injunctions 99 151B. Interim cease trading injunctions 101 151C. Power to rescind or vary cease trading injunctions 101 60. Defences 101 61. Orders against persons found to have contravened this Act 102 62. Actions for damages 102 63. New Division 3 inserted in Part 11 103 Division 3—Infringement Notices 103 160A. Power to serve a notice 103 160B. Form of notice 103 160C. Late payment of penalty 104 160D. Withdrawal of notice 105 160E. Payment expiates offence 105 160F. Application of penalty 106 160G. Prosecution after service of infringement notice 106 160H. Enforcement of infringement penalty 107 64. New section 161A inserted 107 161A. Bills and receipts 107 65. New section 162A inserted 109 162A. Public warning statements 109 66. New section 163 substituted 110 163. Consumer documents to be clear 110 67. Supreme Court—limitation of jurisdiction 111 68. Amendment of regulation-making powers 111 69. New Schedule 2 substituted 112 70. Amendment to Schedule 3 114 71. Further amendment to Schedule 3 116 PART 3—REPEALS AND AMENDMENTS 117 72. Repeal of the Small Claims Act 1973 117 73. Amendment to section 97A of the Goods Act 1958 117 74. New section 97B inserted into the Goods Act 1958 117 97B. Exemption from waiver form requirement 117 75. Repeal of Part IV of the Goods Act 1958 119 76. New Part VI inserted in the Goods Act 1958 119 PART VI—TRANSITIONAL AND SAVING 119 122. Contracts to which Part IV of the Goods Act 1958 will still apply 119 -- 5 of 143 -- Section Page vi 77. New Part 3 inserted in the Business Licensing Authority Act 1998 119 PART 3—LICENCE SUSPENSION 119 20. Definitions 119 21. Authority may suspend licence 121 22. Effect of suspension 123 23. Lapsing or continuation of suspension 125 24. Extension of period 126 25. Right of review 127 78. Amendment to the Interpretation of Legislation Act 1984 127 79. New Part 7AA inserted in Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 127 80. Repeal of Part 18 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 129 81. Amendments to the Administrative Law Act 1978 130 82. Amendments to the Building Act 1993 130 83. Amendment to the Co-operative Housing Societies Act 1958 131 84. Amendments to the Domestic Building Contracts Act 1995 131 85. Amendments to the Electricity Industry Act 2000 133 86. Amendment to the Fundraising Appeals Act 1998 133 87. Amendments to the Gas Industry Act 2001 133 88. Amendments to the Partnership Act 1958 134 89. New section 79G inserted in the Partnership Act 1958 134 79G. Actions commenced by Commissioner for Corporate Affairs 134 90. Amendment to the Petroleum Retail Selling Sites Act 1981 135 91. Amendment to the Residential Tenancies Act 1997 136 ═══════════════ ENDNOTES 137 -- 6 of 143 -- 1 Fair Trading (Amendment) Act 2003 † [Assented to 27 May 2003] The Parliament of Victoria enacts as follows: PART 1—PRELIMINARY 1. Purposes The main purposes of this Act are— (a) to amend the Fair Trading Act 1999 to increase consumer protection under that Act and in particular— (i) to provide for statutory conditions and warranties to apply in certain contracts of supply of goods or services; Victoria No. 30 of 2003 -- 7 of 143 -- Part 1—Preliminary Fair Trading (Amendment) Act 2003 Act No. 30/2003 2 (ii) to provide for unfair terms in consumer contracts to be void; (iii) to give the Director additional powers of enforcement in relation to the conduct of suppliers and business licence holders; (iv) to improve the operation of the pyramid selling provisions; (v) to provide for details that must be included in advertisements promoting the supply of goods or services; (vi) to provide for the making of fixed term ban orders; (vii) to further regulate contact sales agreements; (viii) to provide for a procedure for small claims; (ix) to increase penalties for offences under that Act; (x) to improve the general operation of that Act; (b) to repeal the Small Claims Act 1973; (c) to repeal Part IV of the Goods Act 1958; (d) to amend the Business Licensing Authority Act 1998 to give the Authority additional powers of enforcement in relation to the conduct of business licence holders; (e) to amend the Interpretation of Legislation Act 1984 to clarify the requirements for the tabling of incorporated documents; s. 1 -- 8 of 143 -- Part 1—Preliminary Fair Trading (Amendment) Act 2003 Act No. 30/2003 3 (f) to amend the Partnership Act 1958 to transfer the role of the Commissioner for Corporate Affairs in relation to limited partnerships to the Director. 2. Commencement (1) This Part and sections 3(1), 3(3), 4 to 10, 13 to 25, 39 to 44, 53, 60, 61, 65, 70, 73, 74, 78 and 82 to 91 come into operation on the day after the day on which this Act receives the Royal Assent. (2) Subject to sub-section (3), the remaining provisions of this Act come into operation on a day or days to be proclaimed. (3) If a provision referred to in sub-section (2) does not come into operation before 31 December 2003, it comes into operation on that day. __________________ s. 2 -- 9 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 4 PART 2—AMENDMENTS TO THE FAIR TRADING ACT 1999 3. Purposes (1) After section 1(a) of the Fair Trading Act 1999 insert— "(aa) to protect consumers;". (2) After section 1(b) of the Fair Trading Act 1999 insert— "(ba) to provide for statutory conditions and warranties in consumer contracts; (bb) to provide for unfair terms in consumer contracts to be void;". (3) In section 1(f) of the Fair Trading Act 1999, for "Consumer and Business Affairs" substitute "Consumer Affairs Victoria". 4. Definitions (1) In section 3 of the Fair Trading Act 1999 insert the following definitions— ' "business licensing Act" has the same meaning as in the Business Licensing Authority Act 1998; "consumer contract" means an agreement, whether or not in writing and whether of specific or general use, to supply goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption, for the purposes of the ordinary personal, domestic or household use or consumption of those goods or services; "fixed term ban order" means a fixed term ban order under section 39 or 40; See: Act No. 16/1999 and amending Act Nos 35/2000, 44/2001 and 86/2001. LawToday: www.dms. dpc.vic. gov.au s. 3 -- 10 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 5 "post box" means post office box, document exchange, mail collection agency or mail forwarding agency; "public holiday" has the same meaning as in the Public Holidays Act 1993; "publisher" means a person who publishes a publication intended for sale or public distribution (whether to the public generally or to a restricted class or number of persons) or for public display (including in an electronic form); "Secretary" means the Secretary to the Department of Justice;'. (2) In section 3 of the Fair Trading Act 1999, in the definition of "business day" for paragraph (b) substitute— "(b) a public holiday;". (3) In section 3 of the Fair Trading Act 1999, in the definition of "Director" for "Consumer and Business Affairs" substitute "Consumer Affairs Victoria". (4) In section 3 of the Fair Trading Act 1999, for the definition of "unsolicited goods" substitute— ' "unsolicited goods" means goods supplied to a person— (a) without any request made by or on behalf of the person; or (b) on approval;'. s. 4 -- 11 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 6 5. New section 6 substituted For section 6 of the Fair Trading Act 1999 substitute— "6. Extra-territorial application of this Act (1) This Act applies within and outside Victoria. (2) This Act applies outside Victoria to the full extent of the extra-territorial legislative power of the Parliament.". 6. Amendment to penalty provisions in Part 2 (1) In sections 10, 11, 12, 13, 19(1), 20(1), 20(2), 21(1) and 23(3) of the Fair Trading Act 1999— (a) for "240 penalty units" substitute "600 penalty units"; (b) for "600 penalty units" substitute "1200 penalty units". (2) In sections 16, 17(1), 17(2), 18(1) and 30(1) of the Fair Trading Act 1999— (a) for "120 penalty units" substitute "600 penalty units"; (b) for "240 penalty units" substitute "1200 penalty units". (3) In sections 14(1), 15, 22(1), 22(2), 23(1), 24(1) and 27(1) of the Fair Trading Act 1999— (a) for "120 penalty units" substitute "240 penalty units"; (b) for "240 penalty units" substitute "600 penalty units". 7. Referral selling (1) In section 18(1) of the Fair Trading Act 1999, for "supplier" (where three times occurring) substitute "person". s. 5 -- 12 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 7 (2) In section 18(1)(b) of the Fair Trading Act 1999, for "persons" substitute "purchasers". (3) Section 18(2) of the Fair Trading Act 1999 is repealed. 8. Pyramid selling (1) After section 22(2) of the Fair Trading Act 1999 insert— "(2A) Sub-sections (1) and (2) do not apply to a scheme for the supply of goods or services if any payment made or other benefit provided for the goods or services supplied under the scheme bears a reasonable relationship to the value of those goods or services. Note: Section 130 of the Magistrates' Court Act 1989 provides that if an Act creates an offence and provides any exception to the offence and the defendant wishes to rely on the exception, the defendant must present evidence that suggests a reasonable possibility of the existence of facts that, if they existed, would establish the exception.". (2) In section 22(3) of the Fair Trading Act 1999, in the definition of "pyramid selling scheme"— (a) for "services; and" at the end of paragraph (b) substitute "services—"; and (b) paragraph (c) is repealed. 9. Right to payment for unauthorised entry or advertisement (1) For section 27(5)(a)(i) of the Fair Trading Act 1999 substitute— "(i) a large proprietary company or a subsidiary of such a company or a listed corporation or a subsidiary of such a corporation; or". s. 8 -- 13 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 8 (2) In section 27(6) of the Fair Trading Act 1999— (a) insert the following definitions— ' "large proprietary company" has the same meaning as in the Corporations Act; "listed corporation" has the same meaning as in the Corporations Act; "subsidiary" has the same meaning as in the Corporations Act.'. (b) the definition of "publisher" is repealed. 10. Address to be included in documents (1) In section 29(1)(c) of the Fair Trading Act 1999, after "services" insert "in trade or commerce". (2) For section 29(1)(f) of the Fair Trading Act 1999 substitute— "(f) one of the following— (i) the full address (not being a post box) of the place of business or residence of the person; (ii) if the person is carrying on a business that is required to be licensed or registered under an Act, the relevant licence or registration number of the business or person; Example This may include an LMCT number if the person is a car dealer or the person's registration or licence number if the person is a plumber. s. 10 -- 14 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 9 (iii) if the person is carrying on a business under a business name registered under the Business Names Act 1962, the registered number of the business under that Act.". (3) For section 29(2) of the Fair Trading Act 1999 substitute— '(2) This section does not apply to a person who publishes or causes to be published, a document, statement or advertisement for prostitution services within the meaning of the Prostitution Control Act 1994. (3) A person, other than a person referred to in sub-section (1)(f)(ii) or (iii), is not required to comply with sub-section (1)(f) if the person has provided his or her name and full address to the publisher of the publication in which the document, statement or advertisement is to appear. (4) A publisher must record and keep all information provided to the publisher under sub-section (3) for at least 12 months from the date it is received. Penalty: 60 penalty units, in the case of a natural person. 120 penalty units, in the case of a body corporate. (5) In this section, "publish" in relation to a document, statement or advertisement means to make the document, statement or advertisement generally known in any manner (including in an electronic form).'. s. 10 -- 15 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 10 11. Insertion of new Part 2A After Part 2 of the Fair Trading Act 1999 insert— 'PART 2A—IMPLIED CONDITIONS AND WARRANTIES IN CERTAIN CONTRACTS OF SUPPLY Division 1—Interpretation 32A. Definitions In this Part— "contract of supply" includes an agreement to supply; "court" in relation to any legal proceeding, includes the Tribunal and a person acting judicially; "dealer" means a person by whom or on whose behalf any antecedent negotiations are conducted but does not include the supplier or an agent of the supplier acting with the authority of the supplier; "discharge" in relation to a contract of supply of goods or services, means discharge of the contract so far as it is executory; "innocent misrepresentation" in relation to a contract of supply of goods or services means misrepresentation that is not fraudulent; "lease" includes hire; s. 11 -- 16 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 11 "rescission" in relation to a contract of supply of goods or services means avoidance of the contract as from its beginning. 32B. What are conditions and warranties? (1) In this Part a reference to a condition in relation to a contract of supply of goods or services is a reference to a term of the contract the breach of which may give rise to a right to treat the contract as repudiated. (2) In this Part a reference to a warranty in relation to a contract of supply of goods or services is a reference to a term of the contract the breach of which may give rise to a claim for damages but not to a right to treat the contract as repudiated. 32BA. What are antecedent negotiations? (1) In this Part a reference to antecedent negotiations in relation to a contract of supply of goods or services is a reference to any negotiations or arrangements conducted or made with the purchaser by a person— (a) by which the purchaser was induced to enter into the contract with the supplier; or (b) which otherwise promoted the making of the contract. (2) In this Part a reference to a person by whom any antecedent negotiations are conducted is a reference to a person by whom the negotiations or arrangements concerned are conducted or made. s. 11 -- 17 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 12 32C. When is a person "aware" of a fact, matter or circumstance? (1) For the purposes of this Part, a person is not deemed to be aware of a fact, matter or circumstance by reason only that the person has signed a document or writing— (a) stating that fact, matter or circumstance; or (b) stating that the person is aware of that fact, matter or circumstance. (2) For the purposes of this Part, a person is deemed to be aware of a fact, matter or circumstance if the person has been informed or learnt of it in a manner and in circumstances that would reasonably be expected to cause a reasonable person to become aware of the fact, matter or circumstance. Division 2—Application of Part 32CA. Application of Part This Part applies to contracts of supply of goods or services entered into on or after the commencement of section 11 of the Fair Trading (Amendment) Act 2003. Note: Part IV of the Goods Act 1958 continues to apply to contracts of sale of goods or services and leases (within the meaning of that Part) entered into before the commencement of section 75 of the Fair Trading (Amendment) Act 2003. See section 122 of the Goods Act 1958. s. 11 -- 18 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 13 32D. This Part applies to certain kinds of contracts (1) In this Part a reference to a contract of supply of goods or services is a reference to a contract of supply of goods or services where the cash price of the goods or services— (a) is not more than $40 000; or (b) is more than $40 000 and the goods or services are of a kind ordinarily acquired for personal, domestic or household use or consumption. Note: The definition of "supply" in section 3 includes supply by way of lease. (2) If an amount greater than $40 000 is prescribed by the regulations for the purposes of this section, a reference in this section to $40 000 is a reference to the prescribed amount. 32DA. This Part does not apply to certain kinds of contracts (1) In this Part a reference to a contract of supply of goods or services does not include a reference to— (a) a contract of supply of goods where a purchaser purchases, or holds out as purchasing, the goods for the purpose of re-supply; or (b) a contract of supply of raw materials or goods that are ordinarily acquired for the purposes of repairing or treating other goods or fixtures on land or being incorporated in other goods, where a purchaser purchases, or holds out as purchasing, the goods for the purpose s. 11 -- 19 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 14 of transforming them or incorporating them in other goods, in trade or commerce, in the course of— (i) a process of production or manufacture; or (ii) repairing or treating other goods or fixtures on land; or (c) a contract of supply of services where the purchaser of those services has contracted to provide those services, or goods or services including those services, to a third person; or (d) a contract of supply of goods or services entered into before the commencement of section 11 of the Fair Trading (Amendment) Act 2003. (2) Sections 32NA, 32O, 32P and 32PA do not apply to a contract of supply by way of lease of goods. (3) In sub-section (1) a reference to the re- supply of goods purchased from a person includes a reference to— (a) a supply of the goods to another person in an altered form or condition; and (b) a supply to another person of goods in which the first-mentioned goods have been incorporated. 32E. How is "cash price" determined for contracts generally? (1) Subject to sub-section (2), "cash price" in section 32D in relation to a contract of supply of goods or services means the amount paid or payable by the purchaser for the goods or services. s. 11 -- 20 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 15 (2) If under a contract of supply of goods or services, a purchaser purchases goods or services together with other property or services and a specified price is not allocated to the goods or services in the contract or agreement, "cash price" in section 32D in relation to the goods or services means— (a) the price at which, at the time at which the contract is made, the purchaser could have purchased from the supplier the goods or services without the other property or services; or (b) if, at the time at which the contract is made, the goods or services were not available for purchase from the supplier except together with other property or services but, at that time, goods or services of the kind purchased were available for purchase from another supplier without other property or services—the lowest price at which the purchaser could, at that time, reasonably have purchased goods or services of that kind from another supplier; or (c) if, at the time at which the contract is made, goods or services of the kind purchased were not available for purchase from any supplier except together with other property or services—the value of the goods or services at that time. (3) This section does not apply to a contract of supply of goods by way of lease. s. 11 -- 21 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 16 32EA. How is "cash price" determined for leases of goods? In section 32D "cash price" in relation to a contract of supply of goods by way of lease means— (a) if at the time the contract is made the goods are available for purchase from the supplier—the lowest price at which the purchaser might have purchased the goods from the supplier; or (b) if at the time the contract is made, the goods are reasonably available for purchase but are not available for purchase from the supplier or are available for purchase only together with other property or services—the lowest price at which, at that time, the purchaser could reasonably have purchased goods of that kind; or (c) if at the time the contract is made, the goods are not available for purchase or are available for purchase only together with other property or services—the value of the goods at that time. 32EB. Presumption that this Part applies to supply If it is alleged in any proceeding under this Part or in any other proceeding in respect of a matter arising under this Part that a contract of supply of goods or services is a contract to which this Part applies, it is to be presumed, unless the contrary is established, that this Part applies to the contract. s. 11 -- 22 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 17 32F. Application of Part to mixed contracts Despite anything to the contrary in this Part, this Part applies in relation to— (a) a contract of supply of goods, whether or not the contract includes a supply of services; and (b) a contract of supply of services, whether or not the contract includes a supply of goods. 32FA. Application of Goods Act 1958 to contracts of supply (1) Sections 16(3), 17, 18, 19(a) and (b) and 20 of the Goods Act 1958 do not apply to contracts of supply to which this Part applies. (2) Section 4(2) of the Goods Act 1958 is deemed to apply in relation to this Part as if— (a) the reference to Part was a reference to this Part; and (b) the reference to contracts for the sale of goods included a reference to contracts of supply of goods. (3) A reference in Part I of the Goods Act 1958 to a condition includes a reference to a condition within the meaning of this Part. (4) A reference in Part I of the Goods Act 1958 to a warranty includes a reference to a warranty within the meaning of this Part. (5) Except as otherwise expressly provided by this Part, nothing in this Part affects the application to a contract of supply of goods or services of the Goods Act 1958 or any other Act or law. s. 11 -- 23 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 18 Division 3—Supply of Goods or Services 32G. Terms implied in contracts as to right to supply (1) Subject to section 32GA, in a contract of supply of goods there is— (a) an implied condition that— (i) in the case of a contract, not being an agreement to supply, the supplier has a right to supply the goods; and (ii) in the case of an agreement to supply, the supplier will have a right to supply the goods at the time when the property is to pass; and (b) an implied condition that, at the time the property in the goods is to pass, the goods will be free from any charge or encumbrance other than a charge or encumbrance— (i) of which the purchaser is aware when the supply is made; and (ii) subject to which the purchaser has agreed to accept the goods; and (c) an implied warranty that the purchaser will enjoy quiet possession of the goods, except as far as it may be disturbed by a person entitled to the benefit of a charge or encumbrance— (i) of which the purchaser is aware when the supply is made; and (ii) subject to which the purchaser has agreed to accept the goods. s. 11 -- 24 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 19 (2) This section does not apply to a contract of supply of goods by way of lease. 32GA. Transfer of limited interest in goods (1) Section 32G does not apply to a contract of supply of goods if— (a) it appears from the contract, or is to be inferred from the circumstances of the supply, that the supplier intends to transfer only such right, title or interest as the supplier or a third party may have; and (b) the purchaser is aware when the contract is made that it is a contract under which the supplier intends to transfer only such right, title or interest as the supplier or a third party may have. (2) In a contract of supply of goods referred to in sub-section (1) there is— (a) an implied condition that— (i) in the case of a contract, not being an agreement to supply, the supplier has a right to transfer that right, title or interest in the goods; and (ii) in the case of an agreement to supply, the supplier will have a right to transfer that right, title or interest in the goods at the time when the property is to pass; and s. 11 -- 25 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 20 (b) an implied condition that, when the property is to pass, there will be no other right, title or interest in the goods of which, when the contract is made, the supplier is aware but the purchaser is not aware; and (c) an implied condition that at the time the property in the goods is to pass the goods will be free from any charge or encumbrance other than a charge or encumbrance subject to which the purchaser has agreed to accept the goods; and (d) an implied warranty that the purchaser's quiet possession of the goods will not be disturbed by— (i) the supplier; or (ii) if the parties to the contract intend that the supplier should transfer only such right, title or interest as a third person may have—that third person; or (iii) anyone claiming through or under the supplier or that third person otherwise than under a charge or encumbrance subject to which the purchaser has agreed to accept the goods. (3) This section does not apply to a contract of supply of goods by way of lease. 32GB. Terms implied in leases as to right to hire In a contract of supply of goods by way of lease, there is an implied condition that the supplier has a right to lease the goods to the purchaser for the period of the lease. s. 11 -- 26 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 21 32H. Supply of goods by description (1) In a contract of supply of goods by description there is an implied condition that the goods will correspond with the description. (2) If the supply is by sample as well as by description, it is not sufficient that the goods correspond with the sample if the goods do not also correspond with the description. 32HA. Supply of goods by sample (1) The conditions set out in sub-section (3) are implied in a contract of supply of goods in which there is a term, express or implied, to the effect that the supply is a supply of goods by sample. (2) The conditions set out in sub-section (3) are implied in a contract of supply of goods if, before entering into the contract, the supplier, or in the course of any antecedent negotiations to a supply of goods, a dealer or a person acting on behalf of the supplier— (a) shows to the purchaser a sample of goods; and (b) the purchaser is induced by the showing of the sample to purchase the goods or goods of the same kind. (3) The conditions implied in a contract of supply of goods under sub-section (1) or (2) are— (a) an implied condition that the goods will correspond with the sample in quality; and s. 11 -- 27 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 22 (b) an implied condition that the purchaser will have a reasonable opportunity of comparing the goods with the sample; and (c) an implied condition that the goods will be free from any defect, rendering them unmerchantable— (i) that would not be apparent on reasonable examination of the sample; and (ii) of which the purchaser is not aware when the contract is made. (4) For the purposes of this section, a contract of supply of goods or services may be a contract of supply by sample even though the sample is not part of the bulk of the goods or services. 32I. Merchantable quality of goods supplied (1) In a contract of supply of goods by a supplier who supplies the goods in the course of a business, there is an implied condition that the goods are of merchantable quality. (2) For the purposes of sub-section (1), goods are of merchantable quality if they are as fit for the purposes for which goods of that kind are commonly purchased as is reasonable to expect having regard to— (a) the price of the goods; and (b) the terms of the contract of supply; and (c) the apparent condition of the goods when the supply is made; and (d) all other relevant circumstances. s. 11 -- 28 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 23 (3) The condition in a contract of supply of goods referred to in sub-section (1) does not extend to— (a) defects of which the purchaser is aware when the supply is made; or (b) if the purchaser has examined the goods or a sample of the goods before the contract is made—defects that the examination ought to have revealed. 32IA. Fitness of goods for purpose (1) If, in a contract of supply of goods by a supplier who supplies the goods in the course of a business, the purchaser expressly or by implication— (a) makes known to the supplier; or (b) in the course of any antecedent negotiations, makes known to a dealer or to a person acting on behalf of the supplier— the particular purpose for which the goods are required, there is an implied condition that the goods are reasonably fit for that purpose. (2) Sub-section (1) does not apply if the circumstances show that the purchaser does not rely, or that it is unreasonable for the purchaser to rely, on the skill or judgment of the supplier, dealer or other person. 32J. Implied conditions in supply of services In a contract of supply of services there is— (a) an implied condition that the services will be rendered with due care and skill; and s. 11 -- 29 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 24 (b) in the case of a supply of services by a person who supplies the services in the course of a business, an implied condition that the services are as fit for the purposes for which services of that kind are commonly purchased as it is reasonable to expect having regard to the price of the services, the terms of the supply and all other relevant circumstances. 32JA. Fitness of services for purpose (1) If, in a contract of supply of services by a person who supplies the services in the course of a business, the purchaser expressly or by implication— (a) makes known to the supplier; or (b) in the course of any antecedent negotiations, makes known to a dealer or to a person acting on behalf of the supplier— the particular purpose for which the services are required or the result that the purchaser desires the services to achieve, there is an implied condition that the services are reasonably fit for that purpose or are such as might reasonably be expected to achieve that result. (2) Sub-section (1) does not apply if the circumstances show that the purchaser does not rely, or that it is unreasonable for the purchaser to rely, on the skill or judgment of the supplier, dealer or other person. s. 11 -- 30 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 25 32K. Supply of services by demonstration (1) The conditions set out in sub-section (3) are implied in a contract of supply of services in which there is a term, express or implied, to the effect that the supply is a supply of services of the kind that are shown to the purchaser in a demonstration, or that achieve a particular result shown to the purchaser. (2) The conditions set out in sub-section (3) are implied in a contract of supply of services, if, before entering the contract, the supplier, or in the course of any antecedent negotiations, a dealer or a person acting on behalf of the supplier— (a) shows to the purchaser a demonstration of, or a result achieved by, services; and (b) the purchaser is induced by the demonstration or by the showing of the result to purchase services of that kind. (3) The conditions implied in a contract of supply of services under sub-section (1) or (2) are— (a) an implied condition that the services will correspond in nature and quality with the services shown in the demonstration or will correspond in quality with the services that achieved that result; and (b) an implied condition that the services will be free from any defect rendering them unfit for the purposes for which services of that kind are commonly purchased— s. 11 -- 31 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 26 (i) that would not be apparent on reasonable examination of the services shown in the demonstration or the result achieved by services of that kind; and (ii) of which the purchaser is not aware when the contract is made. 32KA. Terms implied in contracts of supply of both services and goods (1) A term of a contract of supply of both goods and services is to be treated for the purposes of this Part as a condition of that contract if the term— (a) would be a condition of the contract if it were a contract of supply only of the goods; or (b) would be a condition of the contract if it were a contract of supply only of the services. (2) Sub-section (1) does not apply if, having regard to the contract as a whole, it is shown that the term ought not to be treated as a condition of the contract. (3) For the purposes of this section, a statement in a contract of supply to the effect that a term is not a condition does not of itself establish that the term should not be treated as a condition. (4) Despite anything to the contrary in sub-section (1), a reference in that sub- section to a supply of goods includes a reference to the supply of materials in connection with a supply of services. s. 11 -- 32 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 27 32L. Contract cannot exclude this Part (1) A term of a contract of supply of goods or services (including a term that is not set out in the contract but is incorporated in the contract by another term of the contract) is void if the term purports to exclude, restrict or modify or purports to have the effect of excluding, restricting or modifying— (a) the application in relation to that supply of all or any of the provisions of this Part; or (b) the exercise of a right conferred by such a provision; or (c) any liability of the supplier for breach of a condition or warranty implied by such a provision. (2) A term of a contract of supply of goods or services must not be taken to exclude, restrict or modify the application of a provision of this Part unless the term does so expressly or is inconsistent with that provision. 32LA. Contract cannot exclude liability for damages Subject to sections 32MA and 32N, a contract of supply of goods or services or a provision in or that relates to a contract of supply of goods or services is void if the contract or provision— (a) excludes, restricts or modifies or purports to have the effect of excluding, restricting or modifying liability for damages in respect of a breach by a supplier of a condition or warranty implied by this Part in a contract; or s. 11 -- 33 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 28 (b) limits or purports to have the effect of limiting the amount of damages that may be recovered by a purchaser in respect of a breach by a supplier of a condition or warranty implied by this Part in a contract; or (c) requires a purchaser to indemnify a supplier in respect of damages payable for breach of a condition or warranty implied by this Part in a contract; or (d) provides that a purchaser is not entitled to damages, or is entitled only to a limited amount of damages, in respect of a breach by a supplier of a condition or warranty implied by this Part in a contract unless the purchaser takes such steps or follows such procedures as, but for the provision, a purchaser would not reasonably be expected to take or follow. 32M. Penalties for including void provisions (1) A supplier must not include or permit to be included in a contract of supply of goods or services a provision that by reason of section 32L is void. Penalty: 60 penalty units, in the case of a natural person. 120 penalty units, in the case of a body corporate. (2) Subject to sections 32MA and 32N, if there is a contract of supply of goods or services or a provision in or relating to a contract of supply of goods or services of a kind referred to in section 32LA, the supplier is guilty of an offence and liable to a penalty not exceeding 60 penalty units, in the case of a s. 11 -- 34 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 29 natural person or 120 penalty units, in the case of a body corporate. 32MA. Limitation of liability generally (1) Subject to sub-sections (2) and (3), a term of a contract of supply of goods or services is not void under section 32L or 32LA by reason only that the term limits the liability of the supplier for breach of a condition or warranty to— (a) in the case of goods, any one or more of the following— (i) the replacement of the goods or the supply of equivalent goods; (ii) the repair of the goods; (iii) the payment of the cost of replacing the goods or of purchasing equivalent goods; (iv) the payment of the cost of having the goods repaired; or (b) in the case of services— (i) the supply of the services again; or (ii) the payment of the cost of having the services supplied again. (2) Sub-section (1) does not apply in relation to a term of a contract of supply of goods or services if the purchaser establishes that it is unconscionable for the supplier to rely on that term. (3) In determining for the purposes of sub- section (2) whether or not reliance on a term is unconscionable and without in any way limiting the matters to which a court or the Tribunal may have regard, a court or the Tribunal may have regard to all the s. 11 -- 35 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 30 circumstances of the case and in particular to the following matters— (a) the relative strengths of the bargaining positions of the supplier and the purchaser; and (b) whether the term was reasonably necessary for the protection of the legitimate interests of the supplier; and (c) whether the purchaser was able to understand the term or any documents relating to the term, including whether, when the supply was made, the purchaser was aware of the existence and extent of the term (having regard, among other things, to any custom of the trade or any previous course of dealing between the parties); and (d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against the purchaser or a person acting on behalf of the purchaser by the supplier or a person acting on behalf of the supplier in relation to the term; and (e) the amount for which, and the circumstances under which, the purchaser could have been supplied with identical or equivalent goods or services from a person other than the supplier under a contract that did not include the term; and (f) in the case of a supply of goods, whether the goods were manufactured, processed or adapted to the special order of the purchaser. s. 11 -- 36 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 31 (4) This section does not apply to the supply of goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption. (5) This section does not apply to allow a limitation of liability for a breach of a condition or warranty implied by section 32G, 32GA or 32GB. 32N. Limitation of liability in relation to supply of recreational services (1) Subject to sub-section (2), a term of a contract of supply of recreational services is not void under section 32L or 32LA by reason only that the term excludes, restricts or modifies, or has the effect of excluding, restricting or modifying— (a) the application of section 32J or 32JA to the supply of the recreational services under the contract; or (b) the exercise of a right conferred by section 32J or 32JA in relation to the supply of the recreational services under the contract; or (c) any liability of the supplier for a breach of condition implied by section 32J or 32JA in relation to the supply of the recreational services under the contract. (2) Sub-section (1) only applies if— (a) the contract of supply of recreational services was entered into on or after the commencement of section 11 of the Fair Trading (Amendment) Act 2003; and s. 11 -- 37 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 32 (b) the exclusion, restriction or modification contained in the term is limited to liability for death or personal injury; and (c) the term— (i) contains the prescribed particulars (if any) and is in the prescribed form (if any); or (ii) is specified, or is of a class of term specified, in an Order made under section 32NA; and (d) if there is a prescribed form for the term, the supplier has not made a false or misleading statement as to a material particular in or in relation to the term; and (e) the term was signed by the purchaser prior to the supply of the recreational services. (3) Despite sub-section (1), a person is not entitled to rely on a term of a contract in relation to the supply of recreational services which complies with sub-section (2) if— (a) the person has done or omitted to do something in relation to the supply of those recreational services that but for sub-section (1) would— (i) be an act or omission to which section 32J or 32JA would apply; or (ii) give rise to the exercise of a right conferred by section 32J or 32JA; or (iii) be a breach of a condition implied by section 32J or 32JA; and s. 11 -- 38 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 33 (b) the act or omission was done or omitted to be done with reckless disregard, with or without consciousness, for the consequences of the act or omission. (4) In this section— "disease" includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development and whether of genetic or other origin; "injury" means any physical or mental injury; "personal injury" means— (a) an injury of a natural person (including the aggravation, acceleration or recurrence of an injury of the individual); or (b) the contraction, aggravation, acceleration or recurrence of a disease of a natural person; or (c) the coming into existence, the aggravation, acceleration or recurrence of any other condition, circumstance, occurrence, activity, form of behaviour, course of conduct or state of affairs in relation to a natural person that is or may be harmful or disadvantageous to, or result in harm or disadvantage to— (i) the person; or (ii) the community; s. 11 -- 39 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 34 "recreational services" means services that consist of participation in— (a) a sporting activity or a similar leisure-time pursuit; or (b) any other activity that— (i) involves a significant degree of physical exertion or physical risk; and (ii) is undertaken for the purposes of recreation, enjoyment or leisure. (5) The definition of "injury" in sub-section (4) does not, by implication, affect the meaning of the expression "injury" when used in a provision of this Act other than this section. 32NA. Exemption from waiver form requirement (1) The Governor in Council, on the recommendation of the Minister, may, by order published in the Government Gazette, provide that a specified term of a contract of supply of recreational services, or a class of such term, does not need to comply with the requirements of section 32N(2)(c)(i) or (e). (2) The Governor in Council may make an Order under this section subject to any conditions the Governor in Council thinks fit and specifies in the Order. (3) An Order under this section has effect according to its terms. s. 11 -- 40 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 35 (4) The Governor in Council, on the recommendation of the Minister, may, by Order published in the Government Gazette, vary or revoke an Order made under this section. (5) An Order made under this section ceases to have effect on— (a) the expiry of the anniversary of the date the Order was published in the Government Gazette; or (b) if an earlier expiry date is specified in the Order, that earlier date. (6) On or before the 6 th sitting day after an Order under this section is published in the Government Gazette, the Minister must ensure that a copy of the Order is laid before each House of the Parliament. (7) A failure to comply with sub-section (6) does not affect the operation or effect of the Order but the Scrutiny of Acts and Regulations Committee of the Parliament may report the failure to each House of Parliament. (8) An Order may be disallowed in whole or in part by either House of Parliament. (9) Part 5 of the Subordinate Legislation Act 1994 applies to an Order as if— (a) a reference in that Part to a "statutory rule" were a reference to the Order; and (b) a reference in section 23(1)(c) of that Part to "section 15(1)" were a reference to sub-section (6) of this section. s. 11 -- 41 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 36 32NB. Supplier to have reasonable opportunity to make good title If, in a contract of supply of goods, the supplier is in breach of an implied condition referred to in paragraph (a) or (b) of section 32G(1), or in paragraph (a), (b) or (c) of section 32GA(2), or an express term to a similar effect, the purchaser may not discharge the contract on the ground of the breach unless— (a) the purchaser has given notice to the supplier to the effect that the purchaser will discharge the contract unless the supplier within a reasonable time provides the title to the goods required by the supply or removes the charge or encumbrance on the goods, as the case may be; and (b) the supplier has not, within a reasonable time after the notice was given, provided the title required by the contract or removed the charge or encumbrance, as the case may be. 32O. Acceptance of goods (1) If a contract of supply of goods is not severable and the purchaser has accepted the goods or part of the goods, the breach by the supplier of a condition can only be treated as the breach of a warranty and not as a ground for rejecting the goods and discharging the contract of supply unless there is a term of the contract, express or implied, to that effect. s. 11 -- 42 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 37 (2) Sub-section (3) applies if under a contract of supply of goods— (a) the goods at the time of delivery to the purchaser are defective in breach of a condition implied by this Part in the contract of supply; and (b) the fact that they are so defective is apparent at that time or becomes apparent within a reasonable period after that time; and (c) the purchaser has not done any act or thing by reason of which the goods cannot be returned to the supplier in substantially the same state as they were in when they were delivered to the purchaser. (3) Despite section 42 of the Goods Act 1958, the purchaser under a contract of supply of goods to which this sub-section applies is not to be deemed to have accepted the goods by reason only that, during a reasonable period after it is apparent that the goods are defective— (a) the purchaser retained or used the goods; or (b) the purchaser did not inform the supplier that the purchaser had rejected the goods. (4) If goods have been delivered under a contract of supply and the purchaser, before accepting the goods, by agreement with the supplier delivers them to the supplier or to a person nominated by the supplier for repair or replacement, the purchaser is not to be deemed to have accepted the goods within the meaning of section 42 of the Goods Act s. 11 -- 43 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 38 1958 until the purchaser has so accepted them after the delivery of the goods to the purchaser after the repair or replacement. (5) This section does not limit the time within which a purchaser under a contract of supply of goods may, by reason of the breach of a condition referred to in section 32NA, reject the goods and discharge the contract of supply. (6) Nothing in this section confers on a purchaser a right to discharge a contract of supply of goods where the goods— (a) are rendered unmerchantable after delivery to the purchaser; or (b) are damaged by abnormal use after delivery to the purchaser. 32OA. Rescission for innocent misrepresentation (1) If a purchaser enters into a contract of supply of goods after an innocent misrepresentation is made to the purchaser and, if the misrepresentation had been fraudulent, the purchaser would have been entitled to rescind the contract by reason of the misrepresentation, the purchaser may rescind the contract by notice given to the supplier before, or within a reasonable period after— (a) in the case of a contract of supply by way of lease, delivery of the goods; and (b) in any other case, acceptance of the goods. (2) Sub-section (1) applies whether or not the misrepresentation has become a term of the contract. s. 11 -- 44 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 39 32P. Discharge or rescission of contract of supply of goods (1) This section applies if a purchaser— (a) discharges a contract of supply of goods by reason of repudiation or breach of condition by the supplier; or (b) in accordance with section 32OA(1) rescinds a contract of supply of goods after an innocent misrepresentation is made. (2) If the goods have been delivered to the purchaser and have not been returned to the supplier, the purchaser must return the goods to the supplier or permit the supplier to take possession of the goods. (3) The purchaser is liable to the supplier for loss or damage caused to the goods— (a) by the purchaser wilfully or by the purchaser's negligence while the goods are in the purchaser's possession during a period of 21 days after discharging or rescinding the contract; and (b) by the purchaser wilfully while the goods are in the purchaser's possession after the expiration of a period of 21 days after discharging or rescinding the contract. (4) If the property in the goods passed to the purchaser before the discharge or the rescission, the property re-vests in the supplier. (5) The supplier is liable to the purchaser for money paid and for the value of any other consideration paid or provided under the contract by the purchaser to the supplier. s. 11 -- 45 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 40 (6) If— (a) the purchaser used the goods before the discharge or rescission; and (b) the supplier acted honestly and reasonably in supplying the goods— the court may, if it is satisfied that, in all the circumstances, it is just and convenient to do so, allow the supplier to recover from the purchaser an amount equal to the whole or any part of the fair value to the purchaser of the purchaser's use of the goods. 32PA. When does a discharge or rescission have effect? If a purchaser purports to discharge or rescind a contract of supply of goods, the purported discharge or rescission has effect only if— (a) the supplier is aware that the purchaser treats the contract as at an end, whether by reason of the return of the goods to the supplier or by reason of any other information which comes to the knowledge of the supplier; or (b) if the purchaser is unable, due to the conduct or omission of the supplier, after taking reasonable steps, to inform the supplier or to cause the supplier to become aware that the purchaser treats the contract as at an end— (i) the purchaser treats the contract as at an end; and (ii) by the purchaser's conduct, shows unequivocally that the purchaser treats the contract as at an end. s. 11 -- 46 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 41 32Q. Liability of supplier and person conducting antecedent negotiations (1) In a contract of supply of goods or services, a representation made to the purchaser in the course of any antecedent negotiations by a dealer or by a person acting on behalf of the supplier (otherwise than as an agent of the supplier acting with the authority of the supplier) confers on the purchaser— (a) as against the supplier, the same right to rescind the contract and the same right of action in damages as the purchaser would have had if the representation had been made by an agent of the supplier acting with the authority of the supplier; and (b) as against the person by whom the representation was made, the same right of action in damages as the purchaser would have had if the purchaser had purchased the goods or services from that person; and (c) if the antecedent negotiations were conducted on behalf of another person, as against that other person the same right of action in damages as the purchaser would have had if the purchaser had purchased the goods or services from that other person. (2) In a contract of supply of goods or services, a warranty given to the purchaser in the course of any antecedent negotiations by a dealer or by a person acting on behalf of the supplier (otherwise than as an agent of the supplier acting with the authority of the supplier) confers on the purchaser— s. 11 -- 47 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 42 (a) as against the person by whom the warranty was given, the same right of action in damages as the purchaser would have had if— (i) the warranty had been given in consideration of the purchaser purchasing the goods or services from that person; and (ii) the purchaser had purchased the goods or services from that person; and (b) if the antecedent negotiations were conducted on behalf of a dealer, as against the dealer the same right of action in damages as the purchaser would have had if— (i) the warranty had been given in consideration of the purchaser purchasing the goods or services from the dealer; and (ii) the purchaser had purchased the goods or services from the dealer. (3) For the purposes of sub-sections (1) and (2) it is immaterial whether or not the goods or services supplied to the purchaser were purchased by the supplier from a dealer by whom or on whose behalf any antecedent negotiations were conducted. (4) Nothing in this section prevents a statement being both a representation and a warranty. (5) Nothing in this section confers on a purchaser an entitlement to an amount of damages arising from a representation or a warranty exceeding the amount of the loss suffered by the purchaser. s. 11 -- 48 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 43 32QA. Indemnity for supplier or dealer (1) Without prejudice to any other rights or remedies to which a supplier may be entitled, a supplier is entitled to be indemnified— (a) by a person by whom any antecedent negotiations were conducted who made a representation or gave a warranty; and (b) by a dealer on whose behalf any antecedent negotiations were conducted by another person who made a representation or gave a warranty— against any damage suffered by the supplier by reason of the operation of section 32Q. (2) Without prejudice to any other rights or remedies to which a dealer may be entitled, a dealer is entitled to be indemnified by a person who conducted any antecedent negotiations on behalf of the dealer and made a representation or gave a warranty against any damage suffered by the dealer by reason of the operation of section 32Q. 32R. Certain contracts or provisions void A contract of supply of goods or services or a provision in or that relates to a contract of supply of goods or services that purports to have the effect of excluding, restricting or modifying the provisions of section 32Q or 32QA or purports to have the effect of precluding a right of action or a defence based on or arising out of a representation or a warranty referred to in section 32Q(1) or (2), is void. s. 11 -- 49 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 44 32RA. Penalty for including void provision relating to antecedent negotiations A supplier or a person by whom or on whose behalf any antecedent negotiations are conducted must not include or permit to be included in a contract of supply of goods or services a provision that by reason of section 32R is void. Penalty: 60 penalty units, in the case of a natural person. 120 penalty units, in the case of a body corporate. Division 4—General 32S. Implied terms do not negative express terms unless inconsistent A condition or warranty implied by this Part in a contract of supply of goods or services does not negative an express term in the contract except to the extent that the express term is inconsistent with the implied condition or warranty. 32SA. Limit of liability of guarantors (1) If there is a contract of guarantee in relation to the performance of the obligations of a purchaser under a contract of supply of goods or services, the liability of the guarantor in relation to the performance of those obligations does not include liability in respect of an amount exceeding the sum of— (a) the amount for which the purchaser is liable by reason of the breach of the contract of supply; and (b) the reasonable costs of and incidental to enforcing the contract of guarantee. s. 11 -- 50 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 45 (2) Subject to sub-section (3), a guarantor of the obligations of a purchaser under a contract of supply of goods or services where the purchaser is a minor is liable under the contract of guarantee to the same extent as the guarantor would be liable if the purchaser had not been a minor when the contract of supply was made. (3) Sub-section (2) does not apply with respect to a contract of guarantee unless, when it was made, it included a prominent statement immediately above or below the place where the guarantor signed the contract to the effect that a person who enters into a guarantee in respect of the obligations of a purchaser who is a minor may not have a right to recover from the purchaser amounts that the guarantor is liable to pay under the contract of supply. (4) In this section— "domestic partner" of a person means an adult person to whom the person is not married but with whom the person is in a relationship as a couple where one or each of them provides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether or not they are living under the same roof, but does not include a person who provides domestic support and personal care to the person— (a) for fee or reward; or s. 11 -- 51 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 46 (b) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation); "guarantee" includes indemnity; "guarantor" means a person who enters into a contract of guarantee in respect of the performance of the obligations of a purchaser under a contract of supply of goods or services or of a person who enters into a contract of indemnity in relation to a contract of supply of goods or services but does not include— (a) a person who is the supplier, or spouse or domestic partner of the supplier of goods or services to which the contract relates; or (b) if the supplier is a body corporate, a person who is a director or an officer of the body corporate or is a related body corporate within the meaning of the Corporations Act or a director or an officer of a related body corporate or spouse or domestic partner of that director or officer; or (c) a person who enters into a contract of guarantee or a contract of indemnity in respect of the obligations, under a contract of supply of goods or services, of a person who deals in goods or services of the kind to which the contract of supply relates; s. 11 -- 52 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 47 "spouse" of a person means a person to whom the person is married. (5) For the purposes of the definition of "domestic partner" in sub-section (4)— (a) in determining whether persons are domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 275(2) of the Property Law Act 1958 as may be relevant in a particular case; (b) a person is not a domestic partner of another person only because they are co-tenants. 32T. Limit of liability under security If a mortgage, charge, pledge or other security is provided by a person to secure the obligations of a purchaser under a contract of supply of goods or services, the amount secured in respect of the liability of that person in respect of those obligations does not exceed liability in respect of the sum of— (a) the amount for which the purchaser is liable by reason of the breach of the contract of supply of goods or services; and (b) the reasonable costs of, and incidental to, enforcing the mortgage, charge, pledge, lien or other security. s. 11 -- 53 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 48 32TA. Contract of supply not illegal etc. (1) A contract of supply of goods or services is not illegal, void or unenforceable by reason only that the supplier is guilty of an offence under this Part. (2) If a supplier commits an offence referred to in sub-section (1), the purchaser does not, by reason only of having been a party to the contract, aid, abet, counsel or procure the commission of the offence.'. 12. Insertion of new Part 2B Before Part 3 of the Fair Trading Act 1999 insert— 'PART 2B—UNFAIR TERMS IN CONSUMER CONTRACTS 32U. Definitions For the purposes of this Part— "consumer", in relation to a consumer contract, means a person to whom goods or services have been or are to be supplied under the contract; "consumer contract" includes a standard form contract; "injunction" includes interim injunction; "prescribed unfair term" means a term that is prescribed by the regulations to be an unfair term or a term to the like effect; "standard form contract" means a consumer contract that has been drawn up for general use in a particular industry, whether or not the contract s. 12 -- 54 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 49 differs from other contracts used in that industry; "unfair term" has the meaning given by section 32W and includes a prescribed unfair term. 32V. Application of Part This Part does not apply to contractual terms— (a) contained in a contract to which the Consumer Credit (Victoria) Act 1995 applies; (b) that are required or expressly permitted by law, but only to the extent required or permitted. 32W. What is an unfair term? A term in a consumer contract is to be regarded as unfair if, contrary to the requirements of good faith and in all the circumstances, it causes a significant imbalance in the parties' rights and obligations arising under the contract to the detriment of the consumer. 32X. Assessment of unfair terms Without limiting section 32W, in determining whether a term of a consumer contract is unfair, a court or the Tribunal may take into account, among other matters, whether the term was individually negotiated, whether the term is a prescribed unfair term and whether the term has the object or effect of— (a) permitting the supplier but not the consumer to avoid or limit performance of the contract; s. 12 -- 55 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 50 (b) permitting the supplier but not the consumer to terminate the contract; (c) penalising the supplier but not the consumer for a breach or termination of the contract; (d) permitting the supplier but not the consumer to vary the terms of the contract; (e) permitting the supplier but not the consumer to renew or not renew the contract; (f) permitting the supplier to determine the price without the right of the consumer to terminate the contract; (g) permitting the supplier unilaterally to vary the characteristics of the goods or services to be supplied under the contract; (h) permitting the supplier unilaterally to determine whether the contract had been breached or to interpret its meaning; (i) limiting the supplier's vicarious liability for its agents; (j) permitting the supplier to assign the contract to the consumer's detriment without the consumer's consent; (k) limiting the consumer's right to sue the supplier; (l) limiting the evidence the consumer can lead in proceedings on the contract; (m) imposing the evidential burden on the consumer in proceedings on the contract. s. 12 -- 56 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 51 32Y. Effect of unfair term (1) An unfair term in a consumer contract is void. (2) A prescribed unfair term in a standard form contract is void. (3) The contract will continue to bind the parties if it is capable of existing without the unfair term or the prescribed unfair term. (4) Sub-section (1) applies to any consumer contract entered into on or after the commencement of section 12 of the Fair Trading (Amendment) Act 2003. (5) Sub-section (2) applies to any standard form contract whether entered into before or after the term is prescribed. 32Z. Offences relating to prescribed unfair terms (1) A supplier must not use in relation to a consumer a standard form contract containing a prescribed unfair term. Penalty: 10 penalty units, in the case of a natural person. 20 penalty units, in the case of a body corporate. (2) A person must not attempt to enforce a prescribed unfair term in a standard form contract whether entered into before or after the term is prescribed. Penalty: 10 penalty units, in the case of a natural person. 20 penalty units, in the case of a body corporate. s. 12 -- 57 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 52 32ZA. Injunctions to prevent continued use of unfair terms (1) The Director may apply to the Tribunal for an injunction against any person who, in the Director's opinion, is using, or recommending the use of— (a) an unfair term in consumer contracts; or (b) a prescribed unfair term in standard form contracts. (2) The Tribunal, if it is satisfied that, in all the circumstances, it is just and convenient to do so, may by order grant an injunction under this section on such terms as it considers appropriate. (3) Section 123(2) to (7) of the Victorian Civil and Administrative Tribunal Act 1998 applies as if an injunction under this section were an injunction under that section. (4) An injunction may relate not only to the use of a particular term in a consumer contract or standard form contract, but to any similar term or to a term having like effect, used or recommended for use by any person. 32ZB. Director may require the supply of information (1) The Director may exercise the powers conferred under this section for the purposes of— (a) facilitating the Director's consideration of a complaint that— (i) a term in a consumer contract is an unfair term; or (ii) a term in a standard form contract is a prescribed unfair term; or s. 12 -- 58 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 53 (b) ascertaining whether a person has complied with a Tribunal order as to— (i) the continued use, or recommendation for use of a term in a consumer contract; or (ii) the continued use of a prescribed unfair term in a standard form contract. (2) The Director may, by notice in writing, require any person to supply to the Director— (a) a copy of the document that is the subject of the complaint or order referred to in sub-section (1); (b) information about the use or recommendation for use by that person of that document in dealings with consumers. (3) The notice referred to in sub-section (2) may be varied or revoked by the Director by a subsequent notice in writing. (4) A person to whom the notice is addressed must comply with the notice within 14 days of receiving it. (5) A person must not, without reasonable excuse, refuse or fail to comply with a requirement of the Director under this section within the required time. Penalty: 60 penalty units. (6) It is a reasonable excuse for a natural person to refuse or fail to give information or do any other thing that the person is required to do by or under this section, if the giving of the information or the doing of that other thing would tend to incriminate the person. s. 12 -- 59 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 54 (7) Despite sub-section (6), it is not a reasonable excuse for a natural person to refuse or fail to produce a document that the person is required to produce by or under this section, if the production of the document would tend to incriminate the person. 32ZC. Declaration by the Tribunal (1) The Director may apply to the Tribunal for an order declaring that— (a) a contract is a consumer contract or standard form contract; (b) a term of a consumer contract is an unfair term; (c) a term of a standard form contract is a prescribed unfair term. (2) The Tribunal may make a declaration in relation to a matter under sub-section (1) or any related matter. (3) The Tribunal's power to make a declaration under this section is exercisable only by a presidential member. 32ZD. Advisory opinion by the Tribunal (1) The Director may, in writing, refer to the Tribunal for an advisory opinion any matter, including but not limited to— (a) whether a contract is a consumer contract or standard form contract; (b) whether a term of a consumer contract is an unfair term; (c) whether a term of a standard form contract is a prescribed unfair term. s. 12 -- 60 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 55 (2) The Tribunal may provide an advisory opinion in relation to a matter under sub- section (1) or any related matter.'. 13. Interim ban order After section 35(3) of the Fair Trading Act 1999 insert— "(4) An interim ban order may apply, adopt or incorporate, wholly or partially or as amended by the order, any matter contained in any document as existing— (a) from time to time; or (b) at a particular time.". 14. Permanent or fixed term ban order (1) Insert the following heading to section 39 of the Fair Trading Act 1999— "Permanent ban order or fixed term ban order made after interim ban order". (2) In section 39 of the Fair Trading Act 1999, after "permanent ban order" insert "or a fixed term ban order". 15. General power to make permanent ban order or fixed term ban order (1) Insert the following heading to section 40 of the Fair Trading Act 1999— "General power to make permanent ban order or fixed term ban order". (2) In section 40(1) of the Fair Trading Act 1999, after "permanent ban order" insert "or a fixed term ban order". s. 13 -- 61 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 56 (3) For section 40(2) of the Fair Trading Act 1999 substitute— "(2) The Minister must not make a permanent ban order or a fixed term ban order under sub- section (1) unless— (a) the Director recommends to the Minister the making of that order; or (b) in the case of a permanent ban order, the supply of goods or services of that kind has been permanently prohibited or restricted under a law of the Commonwealth or another State or Territory of the Commonwealth by reason of those goods or services being dangerous; or (c) in the case of a fixed term ban order, the supply of goods or services of that kind has been prohibited or restricted for a specified period under a law of the Commonwealth or another State or Territory of the Commonwealth by reason of those goods or services being dangerous.". (4) In section 40(3)(b)(ii) of the Fair Trading Act 1999, after "prohibited" insert "or restricted". (5) For section 40(4) of the Fair Trading Act 1999 substitute— "(4) If a permanent ban order or fixed term ban order is made under this section, any interim ban order applying to the goods or services to which the permanent ban order or fixed term ban order relates is revoked. s. 15 -- 62 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 57 (5) A permanent ban order or a fixed term ban order may apply, adopt or incorporate, wholly or partially or as amended by the order, any matter contained in any document as existing— (a) from time to time; or (b) at a particular time.". 16. New section 41 substituted For section 41 of the Fair Trading Act 1999 substitute— "41. When does a permanent ban order or a fixed term ban order take effect? (1) A permanent ban order or fixed term ban order must be published in the Government Gazette. (2) A permanent ban order or fixed term ban order takes effect on the date on which it is published in the Government Gazette. (3) The Minister must specify in a fixed term ban order the period during which the order has effect. (4) Subject to section 43 and sub-section (5), at the end of the term specified in a fixed term ban order, the order ceases to have effect. (5) Subject to section 43, at or before the end of the term specified in a fixed term ban order the Minister, by order published in the Government Gazette, may— (a) make a new fixed term ban order; or (b) make a permanent ban order.". s. 16 -- 63 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 58 17. Notice of order In section 42 of the Fair Trading Act 1999, after "permanent ban order" (wherever occurring) insert "or a fixed term ban order". 18. New section 43 substituted For section 43 of the Fair Trading Act 1999 substitute— "43. Revocation or amendment of permanent ban order or fixed term ban order The Minister may, by order published in the Government Gazette, revoke or amend a permanent ban order or a fixed term ban order.". 19. Offence to contravene permanent ban order or fixed term ban order (1) Insert the following heading to section 44 of the Fair Trading Act 1999— "Offence to contravene permanent ban order or fixed term ban order". (2) In section 44 of the Fair Trading Act 1999, after "permanent ban order" insert "or a fixed term ban order". 20. Loss, injury or damage arising from a contravention of this Division In section 45(2)(a) of the Fair Trading Act 1999, after "interim ban order" insert ", a fixed term ban order". 21. Compulsory recall (1) In section 50(1)(a)(iii) of the Fair Trading Act 1999, after "interim ban order" insert ", a fixed term ban order". s. 17 -- 64 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 59 (2) After section 50(3) of the Fair Trading Act 1999 insert— "(3A) A notice under sub-section (1) may apply, adopt or incorporate, wholly or partially or as amended by the notice, any matter contained in any document as existing— (a) from time to time; or (b) at a particular time.". 22. Review of ban order or compulsory recall notice (1) Insert the following heading to section 57 of the Fair Trading Act 1999— "Review of ban order or compulsory recall notice". (2) In section 57(1) of the Fair Trading Act 1999, after "interim ban order" insert ", a fixed term ban order". 23. Off-Business-Premises Sales For the heading to Part 4 of the Fair Trading Act 1999 substitute— "PART 4—OFF-BUSINESS-PREMISES SALES AND OTHER SALES". 24. Application In section 59 of the Fair Trading Act 1999— (a) in paragraph (c) for "sale" substitute "supply"; (b) in paragraph (d) for "sale" substitute "supply". s. 22 -- 65 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 60 25. What is a contact sales agreement? (1) In section 60(1)(b) of the Fair Trading Act 1999— (a) in sub-paragraph (ii) for "purchaser; and" substitute "purchaser; or"; (b) after sub-paragraph (ii) insert— "(iii) any other premises (including the business premises of the supplier), if the purchaser is relying on the supplier (or a person acting on behalf of the supplier) for transport from the premises; and". (2) After section 60(3) of the Fair Trading Act 1999 insert— "(4) Sections 62A to 62E do not apply to a contact sales agreement referred to in sub- section (1)(b)(iii).". 26. Requirements for contact sales agreements (1) For section 61(1)(c) of the Fair Trading Act 1999 substitute— "(c) the agreement must be accompanied by a notice completed in accordance with Part 2 of Schedule 2 which may be used by the purchaser to cancel the agreement;". (2) In sections 61(1)(d) and 61(1)(h)(ii) of the Fair Trading Act 1999 omit "office". (3) In section 61(1)(e) of the Fair Trading Act 1999, after "handwritten)" insert "and otherwise must comply with section 163". s. 25 -- 66 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 61 (4) For section 61(2) of the Fair Trading Act 1999 substitute— "(2) The information required under sub-sections (1)(a)(i) and (ii) and (1)(b) must be conspicuous and prominent in the agreement or notice (as the case may be).". 27. New sections 62A, 62B, 62C, 62D and 62E inserted After section 62 of the Fair Trading Act 1999 insert— '62A. Duty to obtain prior consent to visit (1) Except with prior consent to visit, a supplier or person acting on behalf of a supplier must not visit the premises of a person for the purpose of negotiations which may lead to a contact sales agreement or for an incidental or related purpose— (a) at any time on a Sunday or a public holiday; or (b) on a Saturday— (i) between midnight and 9.00 am; or (ii) between 5.00 pm and midnight; or (c) on any other day— (i) between midnight and 9.00 am; or (ii) between 8.00 pm and midnight. Penalty: 120 penalty units, in the case of a natural person. 240 penalty units, in the case of a body corporate. s. 27 -- 67 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 62 (2) For the purposes of this section— "prior consent to visit" means— (a) consent given by a person to a supplier or to a person acting on behalf of a supplier other than in the presence of the supplier or person acting on behalf of the supplier, to visit the premises of that person for the purpose of negotiating a contact sales agreement or for an incidental or related purpose; Example S, a mobile phone seller, knocks on P's door on Friday afternoon and asks P if she is interested in buying one of S's mobile phones. P tells S she is busy. S asks P if she can come back on Sunday and P reluctantly agrees. This is not prior consent to visit because it was given face-to-face. If S had contacted P by telephone, then it would have been prior consent. (b) consent given by a person to a supplier or to a person acting on behalf of a supplier to visit the premises of that person for the purpose of conducting a party plan or for an incidental or related purpose; "party plan" means negotiations by a supplier or person acting on behalf of a supplier with at least three persons, at the same time and in the same premises, for the supply of goods or services. s. 27 -- 68 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 63 62B. Duty not to remain on premises for long periods (1) Subject to sub-section (2), a supplier or person acting on behalf of a supplier who is carrying on negotiations at a premises which may lead to a contact sales agreement or for an incidental or related purpose must not remain on the premises for more than one hour. Penalty: 120 penalty units, in the case of a natural person. 240 penalty units, in the case of a body corporate. (2) Sub-section (1) does not apply if the supplier or person acting on behalf of the supplier remains on the premises with the consent of the person with whom the negotiations are being conducted and the consent complies with sub-section (4). (3) Sub-section (1) does not apply in the case of a party plan (within the meaning of section 62A). Example S, a kitchenware party plan seller, telephones P on Friday afternoon and asks P if she is interested in hosting a kitchenware party at her house on Sunday. S tells P that the party will last around 4 hours and she should invite her friends. If P agrees and there are at least 3 prospective purchasers in attendance at the party, section 62B(1) will not apply to S. s. 27 -- 69 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 64 (4) A consent under sub-section (2)— (a) must be in writing; and (b) must only apply to a period of one half hour; and (c) must not be given during a period referred to in section 62A(1). (5) More than one consent may be provided under sub-section (4). (6) Nothing in this section limits the operation of section 62C. 62C. Duty to leave premises A supplier or a person acting on behalf of a supplier who is carrying on negotiations at a premises which may lead to a contact sales agreement or for an incidental or related purpose must leave the premises immediately on the request of— (a) the occupier of the premises, or any person acting with the actual or implied authority of the occupier; or (b) the person with whom the negotiations are being conducted. Penalty: 120 penalty units, in the case of a natural person. 240 penalty units, in the case of a body corporate. 62D. Duty to produce identification (1) A supplier or a person acting on behalf of a supplier who is carrying on negotiations which may lead to a contact sales agreement or for an incidental or related purpose, must produce evidence of his or her identity— s. 27 -- 70 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 65 (a) on his or her first entering into negotiations; and (b) at any time after that, if so requested by the person with whom the negotiations are being conducted. Penalty: 120 penalty units, in the case of a natural person. 240 penalty units, in the case of a body corporate. (2) Evidence of identification under sub-section (1) must show the full name of the person, the name of the business (if any) which the person is representing and the business or residential address of the person. 62E. Duty to inform Before commencing negotiations which may lead to a contact sales agreement, a supplier or person acting on behalf of a supplier must orally inform the person with whom the negotiations are being conducted that the supplier or person acting on behalf of a supplier— (a) is not permitted to remain on the premises for more than one hour unless the person with whom the negotiations are being conducted consents in writing to an extension in accordance with section 62B(2) or the negotiations are in the course of a party plan (within the meaning of section 62A); and s. 27 -- 71 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 66 (b) must leave the premises if requested to do so by the occupier of the premises, or any person acting with the actual or implied authority of the occupier, or the person with whom the negotiations are being conducted. Penalty: 120 penalty units, in the case of a natural person. 240 penalty units, in the case of a body corporate.'. 28. When can the purchaser cancel the agreement? (1) For section 63(1) of the Fair Trading Act 1999 substitute— "(1) The purchaser under a contact sales agreement may cancel the agreement by giving notice of cancellation to the supplier within 10 days from and including the day on which the agreement was made or within such longer period as the agreement may provide. (1A) Without limiting sub-section (1), if a supplier or a person acting on behalf of a supplier represents to the purchaser that the purchaser may cancel the agreement in a manner other than in accordance with sub-section (1), (3) or (5), the purchaser may cancel the agreement in that manner.". (2) In section 63(2) of the Fair Trading Act 1999, for "30 clear days" substitute "6 months". (3) After section 63(2) of the Fair Trading Act 1999 insert— "(2A) If a supplier or a person acting on behalf of a supplier does not comply with sections 62A to 62E in relation to negotiations leading to a contact sales agreement, the purchaser under s. 28 -- 72 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 67 the agreement may cancel the agreement by giving notice of cancellation to the supplier within the period of 3 months from and including the day on which the agreement was made.". (4) In section 63(3) and (5) of the Fair Trading Act 1999, for "A notice" substitute "Subject to sub- section (1A), a notice". 29. What can the supplier charge on cancellation? For sections 66(2) and 66(3) of the Fair Trading Act 1999 substitute— "(2) If a contact sales agreement is cancelled under this Division, a supplier is not entitled to charge for services provided under the agreement before it is cancelled, except in accordance with this section. (3) If a purchaser cancels a contact sales agreement under this Division, the supplier may apply to the Tribunal for an order that the purchaser must pay to the supplier a reasonable amount (to be determined by the Tribunal) for services provided under the agreement before it was cancelled. (3A) The Tribunal must not make an order under sub-section (3) unless the Tribunal is satisfied that the supplier or a person acting on behalf of the supplier has not contravened this Act in relation to the contact sales agreement.". 30. Requirements for non-contact sales agreements For section 69(2) of the Fair Trading Act 1999 substitute— "(2) If a non-contact sales agreement is in writing— s. 29 -- 73 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 68 (a) the document must comply with section 163 and must include the full business address of the supplier; and (b) the information under sub-section (1), and the full business address of the supplier, must be conspicuous and prominent in the agreement.". 31. When can the purchaser cancel the agreement? In section 71(2) of the Fair Trading Act 1999, for "5 business days after" substitute "10 days from and including". 32. Sections 76 and 77 repealed Sections 76 and 77 of the Fair Trading Act 1999 are repealed. 33. New section 80 substituted For section 80 of the Fair Trading Act 1999 substitute— "80. Prohibition on payment for services during cooling-off period A supplier must not require or accept payment from a purchaser under a contact sales agreement or a non-contact sales agreement during the cooling-off period for that agreement for services provided under that agreement during that period. Penalty: 120 penalty units, in the case of a natural person. 240 penalty units, in the case of a body corporate.". s. 31 -- 74 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 69 34. Statement of lay-by terms (1) In section 83(1)(b)(v) of the Fair Trading Act 1999, for "agreement" substitute "lay-by". (2) After section 83(1)(b)(vi) of the Fair Trading Act 1999 insert— "(vii) the purchaser's right to cancel the lay-by and the procedure to be followed should the purchaser wish to cancel the lay-by; and (viii) the full name and business address (not being a post box) of the supplier; and". 35. New section 84A inserted After section 84 of the Fair Trading Act 1999 insert— "84A. Lay-by goods must be available A supplier must not enter into a lay-by if the supplier is aware that the goods will not be available, or has no reasonable grounds to expect the goods will be available, for delivery to or collection by the purchaser when the terms of the lay-by indicate they will be available. Penalty: 60 penalty units, in the case of a natural person. 120 penalty units, in the case of a body corporate.". 36. Cancellation of lay-by by purchaser (1) After section 85(1) of the Fair Trading Act 1999, insert— "(1A) If a supplier does not agree to accept an oral cancellation of a lay-by, the supplier must provide to the purchaser a prescribed cancellation form— s. 34 -- 75 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 70 (a) if the request for oral cancellation is made in person, by immediately handing it to the purchaser; or (b) if the request for oral cancellation is made by telephone, by posting it to the purchaser as soon as practicable. Penalty: 60 penalty units, in the case of a natural person. 120 penalty units, in the case of a body corporate.". (2) In section 85(2)(a)(ii) of the Fair Trading Act 1999, for "agreement" substitute "lay-by". 37. Cancellation where business closes (1) In section 88 of the Fair Trading Act 1999, for "agreement proposes to stop trading before the agreement" substitute "proposes to stop trading before the lay-by". (2) In section 88(a) of the Fair Trading Act 1999, for "agreement" substitute "lay-by". 38. Cancellation charge must not exceed a reasonable amount In section 90(1) of the Fair Trading Act 1999— (a) omit "agreement" (where first occurring); and (b) for "agreement" (where secondly and thirdly occurring) substitute "lay-by". 39. Director of Consumer Affairs Victoria (1) Insert the following heading to section 98 of the Fair Trading Act 1999— "Director of Consumer Affairs Victoria". s. 37 -- 76 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 71 (2) In section 98 of the Fair Trading Act 1999, for "Consumer and Business Affairs" substitute "Consumer Affairs Victoria". 40. Functions and powers of the Director (1) In section 100(1) of the Fair Trading Act 1999— (a) in paragraph (a) after "Act" insert "or a Consumer Act"; (b) in paragraph (b) after "Act" insert "or a Consumer Act"; (c) in paragraph (c) after "regulations" insert "or of a Consumer Act or the regulations under a Consumer Act"; (d) in paragraph (d) after "regulations" insert "or of a Consumer Act or the regulations under a Consumer Act"; (e) in paragraph (e) after "Act" insert "or with a Consumer Act". (2) In section 101 of the Fair Trading Act 1999, after "delegation" insert "or a power of the Director under section 106I". 41. Part 8 headings amended (1) For the heading to Part 8 of the Fair Trading Act 1999 substitute— "PART 8—POWERS OF DIRECTOR". (2) After the heading to Part 8 of the Fair Trading Act 1999 insert the heading— "Division 1—Disputes". s. 40 -- 77 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 72 42. Conciliation In section 104 of the Fair Trading Act 1999— (a) in sub-section (1) for "fair trading employee" substitute "consumer affairs employee"; (b) in sub-section (4) for "fair trading employee" substitute "consumer affairs employee". 43. Power of the Director to institute and defend proceedings For section 105(2) of the Fair Trading Act 1999 substitute— "(2) The Director must not, under sub-section (1), institute or defend proceedings on behalf of a person unless that person has given consent in writing. (3) After consent has been given under sub- section (2), the Director may institute or continue with a proceeding or defence on behalf of a person even if the person revokes the consent.". 44. Proceedings and costs (1) In section 106(1) of the Fair Trading Act 1999— (a) in paragraph (c) for "an amount" (where first occurring) substitute "subject to sub- sections (1A) and (1B), an amount"; (b) in paragraph (e) for "the person" substitute "subject to sub-section (1A), the person". (2) After section 106(1) of the Fair Trading Act 1999 insert— "(1A) If the Director institutes, defends or continues proceedings on behalf of a person after the person revokes the consent to the proceedings or defence— s. 42 -- 78 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 73 (a) the Director must compensate the person for— (i) any loss suffered as the result of the loss of any settlement offer made to the person; and (ii) out-of-pocket expenses incurred by the person during the proceedings after the revocation of consent; and (b) the Director is liable to pay any amount awarded against the person in the proceedings. (1B) If the Director institutes, defends or continues proceedings on behalf of a person after the person revokes the consent to the proceedings or defence, any amount recovered in the proceedings (including any amount for costs) that exceeds the amount payable to the person under sub-section (1A) may be applied to the payment of the costs of, and incidental to, the proceedings for which the Director is liable or that are incurred by the Director in relation to the proceedings.". 45. New Divisions 2, 3 and 4 inserted in Part 8 After section 106 of the Fair Trading Act 1999 insert— 'Division 2—Suppliers 106A. Substantiation of claims (1) The Director may, by notice in writing, require a person who publishes or causes to be published a statement promoting, or apparently intending to promote, the supply of goods or services, to provide to the s. 45 -- 79 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 74 Director, within the period specified in the notice, proof of any claim or representation made in the statement. (2) A person on whom a notice under this section is served, who— (a) fails to provide proof sufficient to support the claim or representation; or (b) fails, without reasonable excuse, to provide that proof by the time specified in the notice; or (c) provides information which is false or misleading— is guilty of an offence and liable to a penalty not exceeding— (d) 600 penalty units, in the case of a natural person; or (e) 1200 penalty units, in the case of a body corporate. 106B. "Show cause" notice (1) The Director may, by notice in writing, require a supplier to show cause why the supplier should be allowed to continue carrying on the business of supplying goods or services. (2) The Director may issue a notice under sub- section (1) if the Director is of the opinion that there are reasonable grounds to believe that— (a) the supplier has engaged in conduct that contravenes this Act or the regulations; and (b) it is likely that the supplier will continue to engage in that conduct; and s. 45 -- 80 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 75 (c) there is a danger that a person may suffer harm, loss or damage as a result of that conduct unless action is taken urgently. (3) A notice under sub-section (1) must— (a) be served— (i) personally on a supplier who is a natural person; or (ii) at the registered office and the last known business address of a supplier that is a corporation; or (iii) at the last known business address of a supplier that is a body corporate, other than a corporation; (b) specify the conduct which the supplier is believed to have engaged in; (c) state the time period within which the supplier must respond to the notice, that time period being not less than 14 days from the date of service of the notice; (d) state what steps need to be taken by the supplier to respond to the notice; (e) state the consequences for the supplier of not responding to the notice. (4) Despite sub-section (3)(a)(i), if, on the application of the Director, it appears to the Tribunal that service cannot be promptly effected on a supplier who is a natural person, the Tribunal may order that the notice be served— s. 45 -- 81 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 76 (a) by sending it by post, facsimile or other electronic transmission to the supplier at his or her usual or last known residential or business address; or (b) by leaving it at the supplier's usual or last known residential or business address with a person on the premises who is apparently at least 16 years old and apparently residing or employed there. (5) If a supplier has not responded to a notice under this section in accordance with sub- section (3) within the period specified in the notice, the supplier must, at the end of that period, cease to carry on a business of supplying goods or services to which the notice relates or any business of a like kind. Penalty: 600 penalty units, in the case of a natural person. 1200 penalty units, in the case of a body corporate. (6) A supplier to whom a notice under this section applies may apply to the Tribunal for a review of the decision to issue the notice. (7) A supplier must not, in response to the notice, make a statement to the Director that is false or misleading in a material particular. Penalty: 600 penalty units, in the case of a natural person. 1200 penalty units, in the case of a body corporate. s. 45 -- 82 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 77 Division 3—Licence Suspension 106C. Definitions In this Division— "licence" means— (a) a licence issued or granted under— (i) the Estate Agents Act 1980; or (ii) the Motor Car Traders Act 1986; or (iii) the Prostitution Control Act 1994; or (iv) the Travel Agents Act 1986; or (b) a right to act as an agent's representative within the meaning of the Estate Agents Act 1980; or (c) a right to participate in a customer service capacity in the business of a motor car trader within the meaning of the Motor Car Traders Act 1986; or (d) an approval under Division 5 of Part 3 of the Prostitution Control Act 1994; or (e) a registration granted under Part 4 of the Consumer Credit (Victoria) Act 1995; or (f) a right to engage in finance broking within the meaning of Part 4A of the Consumer Credit (Victoria) Act 1995; or s. 45 -- 83 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 78 (g) a right to act as an introduction agent within the meaning of the Introduction Agents Act 1997; or (h) a registration or endorsement of registration under the Second- Hand Dealers and Pawnbrokers Act 1989; "licence suspension period" in relation to a licence, means the period— (a) commencing on the date of service of the notice in relation to the licence under section 106D; and (b) ending on— (i) the lapsing of the suspension of the licence under section 106F; or (ii) the date of an order referred to in section 106F(2) relating to the suspension of the licence; "licensee", in relation to a licence, means the person who is the holder of the licence. 106D. Director may suspend licence (1) Despite anything to the contrary in a business licensing Act or any other Act or law other than this Division, the Director may suspend a licence by notice in writing issued to the licensee. (2) The Director may only suspend a licence under this section if the Director has reasonable grounds to believe that— s. 45 -- 84 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 79 (a) the licensee has engaged in conduct that under the relevant business licensing Act would constitute grounds for the initiation of disciplinary action against the licensee or the bringing of proceedings for an offence or for an injunction; and (b) it is likely that the licensee will continue to engage in that conduct; and (c) there is a danger that a person may suffer substantial harm, loss or damage as a result of that conduct unless action is taken urgently. (3) A notice under sub-section (1)— (a) must be served— (i) personally on a licensee who is a natural person; or (ii) at the registered office and the last known business address of a licensee that is a corporation; or (iii) at the last known business address of a licensee that is a body corporate, other than a corporation; (b) must specify the conduct which the licensee is believed to have engaged in; (c) must state the rights of review open to the licensee; (d) has effect, whether or not the licensee has been afforded an opportunity to be heard on the matter. s. 45 -- 85 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 80 (4) Despite sub-section (3)(a)(i), if, on the application of the Director, it appears to the Tribunal that service cannot be promptly effected on a licensee who is a natural person, the Tribunal may order that the notice be served— (a) by sending it by post, facsimile or other electronic transmission to the person at his or her usual or last known residential or business address; or (b) by leaving it at the person's usual or last known residential or business address with a person on the premises who is apparently at least 16 years old and apparently residing or employed there. (5) The suspension takes effect on the service of the notice. 106E. Effect of suspension (1) This section applies despite anything to the contrary in a business licensing Act or any other Act or law other than this Division. (2) If a notice is issued under this Division suspending— (a) an estate agent's licence under the Estate Agents Act 1980; or (b) a motor car trader's licence under the Motor Car Traders Act 1986; or (c) a licence within the meaning of the Prostitution Control Act 1994; or (d) a travel agent's licence under the Travel Agents Act 1986— the licence is deemed to be suspended for the purposes of that Act for the licence suspension period. s. 45 -- 86 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 81 (3) If a notice is issued under this Division suspending a licensee's right to act as an agent's representative within the meaning of the Estate Agents Act 1980, the licensee is deemed to be ineligible to act as an agent's representative for the purposes of that Act for the licence suspension period. (4) If a notice is issued under this Division suspending a licensee's right to participate in a customer service capacity in the business of a motor car trader within the meaning of the Motor Car Traders Act 1986, the licensee is deemed, for the purposes of that Act, not to be permitted to be employed in a customer service capacity by a motor car trader for the licence suspension period. (5) If a notice is issued under this Division suspending an approval under Division 5 of Part 3 of the Prostitution Control Act 1994, the approval is deemed to be suspended for the purposes of that Act for the licence suspension period. (6) If a notice is issued under this Division suspending the registration of a licensee under Part 4 of the Consumer Credit (Victoria) Act 1995, the registration is deemed to be suspended for the purposes of that Part for the licence suspension period. (7) If a notice is issued under this Division suspending a licensee's right to engage in finance broking within the meaning of Part 4A of the Consumer Credit (Victoria) Act 1995, the licensee is deemed to be prohibited from engaging in finance broking for the purposes of that Act for the licence suspension period. s. 45 -- 87 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 82 (8) If a notice is issued under this Division suspending a licensee's right to act as an introduction agent within the meaning of the Introduction Agents Act 1997, the licensee is deemed to be disqualified from acting as an introduction agent for the purposes of that Act for the licence suspension period. (9) If a notice is issued under this Division suspending the registration or endorsement of registration of a licensee under the Second-Hand Dealers and Pawnbrokers Act 1989, the registration or endorsement is deemed to be suspended for the purposes of that Act for the licence suspension period. 106F. Lapsing or continuation of suspension (1) A suspension under this Division lapses if within the required period after the service of the notice— (a) an application is not made to the Tribunal under a business licensing Act to inquire into the conduct of the licensee that is the subject of the notice; or (b) proceedings have not commenced in a court in relation to the conduct of the licensee that is the subject of the notice. (2) If within the required period after the service of the notice— (a) an application is made to the Tribunal under a business licensing Act to inquire into the conduct of the licensee that is the subject of the notice; or s. 45 -- 88 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 83 (b) proceedings are commenced in a court in relation to the conduct of the licensee that is the subject of the notice— the suspension continues until a further order is made by the Tribunal or the court. (3) If a suspension lapses under this section after service of a notice, the Director must not serve another notice on the licensee under this Division for a period of 6 months from the date of service of the first notice. (4) The power conferred by this Division is in addition to and does not limit or displace a power conferred on the Director or any other person or body by or under a business licensing Act to suspend or cancel a licence or to take action against a licensee in respect of the conduct concerned. (5) In this section "required period" means— (a) 14 days; or (b) if the Tribunal or a court makes an order under section 106G extending that period, that extended period. 106G. Extension of period (1) The Director may apply to the Tribunal or the court within 14 days after the service of a notice under section 106D or, if an extension of that period has been granted under this section, before the end of the period of the extension, to extend the period within which an application must be made or proceedings commenced for the purposes of section 106F(1) and (2). s. 45 -- 89 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 84 (2) On an application under sub-section (1), the Tribunal or court— (a) must consider the likelihood that an application or proceedings referred to in section 106F(1) and (2) will be made or commenced; and (b) may make an order extending the period if in all the circumstances it considers it just and convenient to do so. (3) An extension may be for a period not exceeding 14 days. (4) The Tribunal or court may adjourn any application under this section to enable notice of the application to be given to any person. 106H. Right of review A licensee may apply to the Tribunal for a review of the decision to issue a notice under this Division. Division 4—Obtaining Information, Documents and Evidence 106I. Power to obtain information, documents and evidence (1) If the Director believes that a person is capable of providing information, producing documents or giving evidence relating to a matter that constitutes, or may constitute, a contravention of this Act, the Director may, by notice in writing, require that person— (a) to provide to the Director, by writing signed by that person or, in the case of a body corporate, by a competent officer of the body corporate, within the s. 45 -- 90 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 85 time and in the manner specified in the notice, that information; or (b) to produce to the Director, or to a person specified in the notice acting on the Director's behalf, in accordance with the notice, those documents; or (c) to appear before the Director at a time and place specified in the notice to give that evidence, either orally or in writing, and produce those documents. (2) The Director may require the evidence referred to in sub-section (1)(c) to be given on oath or affirmation and for that purpose may administer an oath or affirmation. (3) A person must not— (a) refuse or fail to comply with a notice under this section to the extent that the person is capable of complying with it; or (b) in purported compliance with a notice under this section, knowingly provide information or give evidence that is false or misleading; or (c) obstruct or hinder the Director in exercising a power under this section. Penalty: 60 penalty units. (4) Subject to sub-section (5), a person is not excused from answering a question, providing information or producing or permitting the inspection of a document on the ground that the answer, information or document may tend to incriminate the person. s. 45 -- 91 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 86 (5) Despite sub-section (4), the answer by a person to any question asked in a notice under this section or the provision by a person of any information in compliance with a notice under this section, is not admissible in evidence against the person— (a) in the case of a person not being a body corporate—in any criminal proceedings other than proceedings under this section; or (b) in the case of a body corporate—in any criminal proceedings other than proceedings under this Act. 106J. Powers in relation to documents If any documents are produced to the Director under this Division, the Director may— (a) inspect the documents or authorise a person to inspect the documents; (b) make copies of or take extracts of the documents; (c) seize the documents if the Director— (i) considers the documents necessary for obtaining evidence for the purpose of any proceedings against any person under this Act or the regulations; or (ii) considers the documents necessary for obtaining evidence for the purpose of any proceedings against any person under any other Consumer Act or the regulations under that Act; or s. 45 -- 92 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 87 (iii) believes on reasonable grounds that it is necessary to seize the documents to prevent their concealment, loss or destruction or their use in the contravention of any Consumer Act; (d) secure any seized documents against interference; (e) retain possession of the documents in accordance with this Division. 106K. Copies of seized documents (1) If the Director retains possession of a document seized from a person under this Division, the Director must give the person, within 21 days of the seizure, a copy of the document certified as correct by the Director. (2) A copy of a document certified under sub- section (1) shall be received in all courts and tribunals to be evidence of equal validity to the original. 106L. Retention and return of seized documents (1) If the Director seizes a document under this Division, the Director must take reasonable steps to return the document to the person from whom it was seized if the reason for its seizure no longer exists. (2) If the document seized has not been returned within 3 months after it was seized, the Director must take reasonable steps to return it unless— (a) proceedings for the purpose for which the document was retained have commenced within that 3 month period and those proceedings (including any appeal) have not been completed; or s. 45 -- 93 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 88 (b) the Magistrates' Court makes an order under section 106M extending the period during which the document may be retained. 106M. Magistrates' Court may extend 3 month period (1) The Director may apply to the Magistrates' Court— (a) within 3 months after seizing a document under this Division; or (b) if an extension has been granted under this section, before the end of the period of the extension— for an extension (not exceeding 3 months) of the period for which the Director may retain the document but so that the total period of retention does not exceed 12 months. (2) The Magistrates' Court may order such an extension if it is satisfied that— (a) it is in the interests of justice; and (b) the total period of retention does not exceed 12 months; and (c) retention of the document is necessary— (i) for the purposes of an investigation into whether a contravention of this Act or the regulations has occurred; or (ii) to enable evidence of a contravention of this Act or the regulations to be obtained for the purposes of a proceeding under this Act. s. 45 -- 94 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 89 (3) The Magistrates' Court must consider the interests of the owner of the document or thing and may adjourn an application to enable notice of the application to be given to any person. 106N. Complaints (1) Any person may complain to the Secretary about the exercise of a power by the Director under this Division. (2) The Secretary must— (a) investigate any complaint made to the Secretary; and (b) provide a written report to the complainant on the results of the investigation. 106O. Service of documents (1) A written requirement by the Director under this Division may be given personally or by registered post to a person— (a) at the last known place of business, employment or residence of the person; or (b) in the case of a body corporate, at the registered office of the body corporate. (2) A person who provides a document or information in response to a requirement of the Director under this Division may send that document or information to the Director by registered post. 106P. Confidentiality (1) The Director must not, except to the extent necessary to carry out the Director's functions under this Act, give to any other person, whether directly or indirectly, any s. 45 -- 95 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 90 information acquired by the Director in carrying out those functions. Penalty: 60 penalty units. (2) Sub-section (1) does not apply to the giving of information— (a) to a court or tribunal in the course of legal proceedings; or (b) pursuant to an order of a court or tribunal; or (c) to the extent reasonably required to enable the investigation or the enforcement of a law of this State or of any other State or Territory or of the Commonwealth; or (d) to the Business Licensing Authority established under the Business Licensing Authority Act 1998; or (e) with the written authority of the Secretary; or (f) with the written authority of the person to whom the information relates.'. 46. Consumer and trader disputes In sections 107, 108, 110, 111, 112 and 113 of the Fair Trading Act 1999, for "fair trading dispute" (wherever occurring) substitute "consumer and trader dispute". 47. Definition of consumer and trader dispute (1) Insert the following heading to section 107 of the Fair Trading Act 1999— "What is a consumer and trader dispute?". (2) In section 107(2) of the Fair Trading Act 1999, after "but" insert "(except as provided in sub- section (3))". s. 46 -- 96 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 91 (3) After section 107(2) of the Fair Trading Act 1999 insert— "(3) For the purposes of sub-section (1), a dispute or claim includes a claim related to personal injury if— (a) the claim is for an amount not exceeding $10 000; and (b) the claim relates to a supply or possible supply of goods or services; and (c) the supply or possible supply of goods or services is the subject of a related consumer and trader dispute.". 48. New section 107A inserted After section 107 of the Fair Trading Act 1999 insert— '107A. What is a small claim? In this Part "small claim" means a consumer and trader dispute in relation to— (a) a claim for payment of money in an amount not exceeding $10 000 or other prescribed amount; or (b) a claim for performance of work of a value not exceeding $10 000 or other prescribed amount— that in either case arises out of a contract for the supply of goods or the provision of services other than a contract of life insurance.'. 49. Settlement of consumer and trader disputes (1) Insert the following heading to section 108 of the Fair Trading Act 1999— "Settlement of consumer and trader disputes or small claims". s. 48 -- 97 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 92 (2) In section 108(2)(h) of the Fair Trading Act 1999, for "contract." substitute "contract;". (3) After section 108(2)(h) of the Fair Trading Act 1999 insert— "(i) declare that a debt is, or is not, owing; (j) order a party to do or refrain from doing something. Example: If the supplier has default listed the purchaser with a credit reference agency in relation to a perceived debt owing, the Tribunal, in addition to declaring that there is no debt owing, may order the supplier to contact the credit reference agency and have the default listing removed from the purchaser's credit record.". 50. Exclusion of other jurisdiction (1) In section 111(1)(b) of the Fair Trading Act 1999, for "jurisdiction." substitute "jurisdiction; or". (2) After section 111(1)(b) of the Fair Trading Act 1999 insert— "(c) the Tribunal refers the proceeding to that court under section 77 of the Victorian Civil and Administrative Tribunal Act 1998.". 51. New sections 112A and 112B inserted After section 112 of the Fair Trading Act 1999 insert— "112A. Small claim commenced in a court (1) This section applies if a supplier, or person acting on behalf of the supplier— (a) commences proceedings in a court; and (b) the proceedings arise wholly or predominantly from a small claim. s. 50 -- 98 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 93 (2) The court must dismiss the proceedings if— (a) the court has not yet commenced to hear the matter; and (b) the purchaser has applied to the Tribunal to have the matter heard and determined by the Tribunal; and (c) the purchaser has lodged with the Tribunal— (i) the whole of the amount sought by the supplier; or (ii) if any payment has been made to the supplier (including any deposit), the outstanding amount sought; and (d) the Tribunal has notified the court of that application to the Tribunal and lodgement. 112B. Small Claims Suspense Account (1) The principal registrar of the Tribunal must keep an account called the Small Claims Suspense Account and pay into that account all money lodged with the Tribunal under section 112A(2). (2) The principal registrar must deal with money lodged with the Tribunal under section 112A(2) as follows— (a) if the Tribunal makes an order with respect to the money, the principal registrar must comply with the order; (b) if the proceeding is struck out for want of jurisdiction or otherwise withdrawn, the principal registrar must— s. 51 -- 99 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 94 (i) return the money to the person who paid the money or that person's personal or legal representative; or (ii) pay it in accordance with the directions of the person who paid the money or that person's personal or legal representative; (c) if the person who paid the money dies before a final order is made with respect to the matter, the principal registrar must pay the money to the personal or legal representative of the deceased person.". 52. New section 113A inserted After section 113 of the Fair Trading Act 1999 insert— "113A. Tribunal may order the provision of information (1) A person may apply to the Tribunal for an order requiring the Director to provide the full name and address of a supplier, who is not registered or licensed or whose details are not contained on any public register established under a business licensing Act or other Act. (2) The Tribunal may make the order referred to in sub-section (1) if it is satisfied that, in all the circumstances, it is just and convenient to do so.". 53. Publisher to produce information In section 118(1) of the Fair Trading Act 1999, for "specified information which has been published by the publisher" substitute— "specified information which— s. 52 -- 100 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 95 (a) is required by this Act or the regulations to be kept by the publisher; or (b) has been published by the publisher". 54. Emergency entry In section 121(1) of the Fair Trading Act 1999, after "interim ban order" insert ", a fixed term ban order". 55. New section 129 substituted For section 129 of the Fair Trading Act 1999 substitute— "129. Magistrates' Court may extend 3 month period (1) An inspector may apply to the Magistrates' Court— (a) within 3 months after seizing a document or other thing under this Part; or (b) if an extension has been granted under this section, before the end of the period of the extension— for an extension (not exceeding 3 months) of the period for which the inspector may retain the document or thing but so that the total period of retention does not exceed 12 months. (2) The Magistrates' Court may order such an extension if it is satisfied that— (a) it is in the interests of justice; and (b) the total period of retention does not exceed 12 months; and s. 54 -- 101 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 96 (c) retention of the document or other thing is necessary— (i) for the purposes of an investigation into whether a contravention of this Act or the regulations has occurred; or (ii) to enable evidence of a contravention of this Act or the regulations to be obtained for the purposes of a proceeding under this Act. (3) At least 7 days prior to the hearing of an application under this section, notice of the application must be sent to the owner of the document or thing described in the application.". 56. New section 144 substituted For section 144 of the Fair Trading Act 1999 substitute— '144. Conduct by officers, employees or agents (1) If, in any proceedings under this Act, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to show— (a) that the conduct was engaged in by an officer of that body corporate within the scope of the officer's actual or apparent authority and the officer had that state of mind; or (b) that the conduct was engaged in by an agent of the body corporate and— (i) the agent acted at the specific direction or with the specific consent or agreement of the body corporate; and s. 56 -- 102 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 97 (ii) the agent had that state of mind; and (iii) the body corporate was aware of the agent's state of mind when the conduct was engaged in. (2) For the purposes of any proceedings under this Act, any conduct engaged in on behalf of a body corporate is deemed to have been engaged in also by the body corporate if the conduct was engaged in by— (a) an officer of the body corporate within the scope of the officer's actual or apparent authority; or (b) any other person at the specific direction or with the specific consent or agreement of an officer of the body corporate, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the officer. (3) If, in any proceedings under this Act, it is necessary to establish the state of mind of a person other than a body corporate in relation to particular conduct, it is sufficient to show— (a) that the conduct was engaged in by an employee of that person within the scope of the employee's actual or apparent authority and the employee had that state of mind; or (b) that the conduct was engaged in by an agent of the person and— (i) the agent acted at the specific direction or with the specific consent or agreement of the person; and s. 56 -- 103 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 98 (ii) the agent had that state of mind; and (iii) the person was aware of the agent's state of mind when the conduct was engaged in. (4) For the purposes of any proceedings under this Act, any conduct engaged in on behalf of a person other than body corporate ("the principal") is deemed to have been engaged in also by the principal if the conduct was engaged in by— (a) an employee of the principal within the scope of the employee's actual or apparent authority; or (b) any other person at the specific direction or with the specific consent or agreement of an employee of the principal, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the employee. (5) A reference in this section to the state of mind of a person includes a reference to the knowledge, intention, opinion, belief or purpose of the person and the person's reasons for the intention, opinion, belief or purpose.'. 57. Repeal of section 145 Section 145 of the Fair Trading Act 1999 is repealed. s. 57 -- 104 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 99 58. New section 145 inserted In Division 2 of Part 11 of the Fair Trading Act 1999, before section 146 insert— "145. Interpretation A reference in this Division to a person involved in a contravention of this Act means a reference to a person who— (a) has aided, abetted, counselled or procured the contravention; (b) has induced, whether by threats or promises or otherwise, the contravention; (c) has been in any way, directly or indirectly, knowingly concerned in or party to, the contravention; (d) has conspired with others to effect the contravention.". 59. New sections 151A, 151B and 151C inserted After section 151 of the Fair Trading Act 1999 insert— "151A. Cease trading injunctions (1) The Minister or the Director may apply to the Supreme Court for the grant of an injunction restraining a person from carrying on a business of supplying goods or services (whether or not as part of, or incidental to, the carrying on of another business) if the person is or has been engaging in conduct that constitutes— (a) a contravention of any provision of this Act; or (b) attempting or conspiring to contravene such a provision; or s. 58 -- 105 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 100 (c) aiding, abetting, counselling or procuring a person to contravene such a provision; or (d) inducing or attempting to induce a person, whether by threats, promises or otherwise, to contravene such a provision; or (e) being in any way directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision. (2) The Supreme Court may grant the injunction sought— (a) if— (i) the Court is satisfied that the person is engaging in or has been engaging in conduct of that kind; and (ii) it appears to the Court that, in the event that the injunction is not granted, it is likely that the person will engage in conduct of that kind and there is an imminent danger of substantial damage to any person if the first-mentioned person engages in conduct of that kind; or (b) if the Court determines it to be appropriate, by consent of all the parties to the proceedings, whether or not the person has engaged in, or is likely to engage in conduct of that kind. (3) An injunction under this section may be granted— (a) for a specified period; and (b) on specified terms and conditions. s. 59 -- 106 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 101 151B. Interim cease trading injunctions The Supreme Court may grant an interim injunction pending determination of an application under section 151A, if, in the opinion of the Court it is desirable to do so and it appears to the Court that— (a) the person intends to engage in or continue to engage in conduct of a kind referred to in paragraphs (a) to (e) of section 151A(1); and (b) there is an imminent danger of substantial damage to any person if the person referred to in paragraph (a) engages in conduct of that kind. 151C. Power to rescind or vary cease trading injunctions The Supreme Court may rescind or vary an injunction granted by it under section 151A or an interim injunction granted by it under section 151B.". 60. Defences In section 155(1) of the Fair Trading Act 1999— (a) for paragraph (a) substitute— "(a) that the contravention in respect of which the proceeding was instituted was due to reasonable mistake of fact, including a mistake of fact caused by a reasonable reliance on information supplied by another person; or"; (b) paragraph (b) is repealed. s. 60 -- 107 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 102 61. Orders against persons found to have contravened this Act (1) For section 158(1) of the Fair Trading Act 1999 substitute— '(1) In any proceedings for an offence against, or a contravention of, this Act, the court may make any order it considers fair (including one or more of the orders set out in sub- section (2)) if the court finds that— (a) the person against whom the proceedings were brought ("the defendant") has contravened a provision of this Act (including a provision under Part 2); and (b) another person ("the injured person") has suffered or may suffer loss or damage as a result of the contravention of this Act.'. (2) In section 158(2) of the Fair Trading Act 1999— (a) in paragraph (g) for "person; or" substitute "person."; (b) paragraph (h) is repealed. (3) After section 158(3) of the Fair Trading Act 1999 insert— "(4) The court may also make an order under this section against a person involved in a contravention of a provision of this Act.". 62. Actions for damages After section 159(1) of the Fair Trading Act 1999 insert— "(1A) Except in accordance with section 107(3), a person may not recover in the Tribunal an amount for any personal injury suffered.". s. 61 -- 108 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 103 63. New Division 3 inserted in Part 11 After Division 2 of Part 11 of the Fair Trading Act 1999 insert— 'Division 3—Infringement Notices 160A. Power to serve a notice (1) An authorised officer may serve an infringement notice on any person that he or she has reason to believe has committed an offence specified by the regulations as an offence in respect of which an infringement notice may be issued. (2) In this Division "authorised officer" means— (a) an inspector; (b) a member of the police force; (c) a person authorised in writing by the Director. (3) An infringement notice may be served on a person— (a) by delivering it personally to the person; or (b) by sending it by post addressed to the person at the person's last known place of residence or business. 160B. Form of notice An infringement notice must be in a form approved by the Director and must set out— (a) the date of the notice; (b) the provision of this Act or the regulations that creates the offence; s. 63 -- 109 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 104 (c) the date, time and place of the alleged offence; (d) the nature and a brief description of the alleged offence; (e) the infringement penalty for the alleged offence set out in the regulations; (f) the manner in which the infringement penalty may be paid; (g) the time (not being less than 28 days after the date on which the notice is served) within which the infringement penalty must be paid; (h) that, if the amount of the infringement penalty is paid before the end of the time specified in the notice, the matter will not be brought before the Magistrates' Court unless the notice is withdrawn within 28 days after the date on which it was served; (i) that the person is entitled to disregard the notice and defend any proceedings in respect of the alleged offence in the Magistrates' Court; (j) any other prescribed particulars. 160C. Late payment of penalty An authorised officer may accept payment of the infringement penalty even after the expiration of the time for payment stated in the infringement notice if— (a) neither a charge has been filed nor a courtesy letter served under Part 2 of Schedule 7 to the Magistrates' Court Act 1989 in respect of the offence to which the infringement penalty relates; and s. 63 -- 110 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 105 (b) the infringement notice has not been withdrawn. 160D. Withdrawal of notice (1) A member of the police force may withdraw an infringement notice issued by a member of the police force under this Part within 28 days after it was served. (2) The Director may withdraw an infringement notice issued by any other authorised officer under this Part within 28 days after it was served. (3) The withdrawal of an infringement notice is to be effected by serving a withdrawal notice on the person on whom the infringement notice was served. (4) If the penalty sought in the infringement notice has been paid before the notice is withdrawn, the amount of the penalty must be refunded on the notice being withdrawn, and the Consolidated Fund is, to the necessary extent, appropriated accordingly. (5) Proceedings for the offence in respect of which the infringement notice has been served may still be taken or continued despite the withdrawal of the notice. 160E. Payment expiates offence If an infringement notice is not withdrawn and the infringement penalty is paid within the time specified in the notice or payment is accepted in accordance with section 160C, then— (a) the person on whom the notice was served has expiated the offence by that payment; and s. 63 -- 111 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 106 (b) no proceedings may be taken against that person in respect of that offence; and (c) no conviction is to be taken to have been recorded against that person for the offence. 160F. Application of penalty (1) An infringement penalty paid under this Division must be applied in the same way as a fine paid under an order of a court made on an offender being convicted or found guilty of the offence to which the infringement penalty relates. (2) The payment of an infringement penalty under this Division is not and must not be taken to be— (a) an admission of guilt in relation to the offence; or (b) an admission of liability for the purpose of any civil claim or proceeding arising out of the same occurrence, and the payment does not in any way affect or prejudice any such claim or proceeding. (3) The payment of an infringement penalty under this Division must not be referred to in any report provided to a court for the purpose of determining sentence for any offence. 160G. Prosecution after service of infringement notice A charge may be filed in respect of an offence to which an infringement notice relates if— (a) the infringement penalty has not been paid within the time for payment s. 63 -- 112 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 107 specified in the notice or in accordance with section 160C; or (b) the notice is withdrawn. 160H. Enforcement of infringement penalty Payment of the infringement penalty may be enforced in accordance with Part 2 of Schedule 7 to the Magistrates' Court Act 1989 if— (a) the infringement notice is an infringement notice within the meaning of Schedule 7 to that Act; and (b) the infringement penalty has not been paid within the time specified in the notice or in accordance with section 160C; and (c) the notice has not been withdrawn; and (d) a charge has not been filed in accordance with section 160G.'. 64. New section 161A inserted After section 161 of the Fair Trading Act 1999 insert— '161A. Bills and receipts (1) Within 30 days after receipt of a bill or account from a supplier for services supplied, a purchaser to whom the services were supplied may request an itemised bill. (2) A supplier must provide an itemised bill within 7 days of receiving a request under sub-section (1). Penalty: 60 penalty units, in the case of a natural person. 120 penalty units, in the case of a body corporate. s. 64 -- 113 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 108 (3) A supplier must not charge a person for the preparation of an itemised bill for services. Penalty: 60 penalty units, in the case of a natural person. 120 penalty units, in the case of a body corporate. (4) A supplier must, at the completion of a contract for goods or services the value of which exceeds $50 (exclusive of GST), provide the purchaser with a proof of transaction . Penalty: 60 penalty units, in the case of a natural person. 120 penalty units, in the case of a body corporate. (5) After completion of a contract for goods or services the value of which does not exceed $50, a purchaser to whom the goods or services were supplied may request a proof of transaction. (6) A supplier must provide a proof of transaction within 7 days of receiving a request under sub-section (5). Penalty: 60 penalty units, in the case of a natural person. 120 penalty units, in the case of a body corporate. (7) This section does not apply to a contract for the provision of legal services to which the Legal Practice Act 1996 applies. s. 64 -- 114 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 109 (8) In this section— "GST" has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth; "itemised bill" means a bill or account of costs that specifies how the costs are calculated and includes, where applicable, the hourly rate and number of hours comprising the labour component and a list of the various materials used and the amount charged for each item; "proof of transaction" means evidence that identifies the supplier, the date of the supply and the goods or services supplied to a purchaser. Note: Proof of transaction includes the following— a tax invoice under the A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth, a cash-register receipt, a credit or debit card statement, a hand-written receipt, a lay-by agreement and a confirmation or receipt number provided in a telephone or internet transaction.'. 65. New section 162A inserted After section 162 of the Fair Trading Act 1999 insert— "162A. Public warning statements If satisfied it is in the public interest to do so, the Minister or the Director may publish a public statement or issue a public warning, identifying and giving information about the following— (a) goods that are unsatisfactory and the persons who supply those goods; s. 65 -- 115 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 110 (b) services supplied in an unsatisfactory manner and persons who supply those services; (c) unfair business practices and persons who engage in those practices; (d) any other matter that adversely affects or may adversely affect the interests of persons in connection with the acquisition by them of goods or services from suppliers.". 66. New section 163 substituted For section 163 of the Fair Trading Act 1999 substitute— '163. Consumer documents to be clear (1) In this section "consumer document" means— (a) a consumer contract; or (b) a statement, notice or other document required by this Act to comply with this section. (2) A consumer document does not include a contract to which the Consumer Credit (Victoria) Act 1995 applies; (3) A consumer document— (a) must be easily legible; and (b) to the extent that it is printed or typed, must use a minimum 10 point font; and (c) must be clearly expressed. s. 66 -- 116 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 111 (4) If the Tribunal is satisfied, on application by the Director, that any provision of a consumer contract does not comply with the requirements of this section, the Tribunal may by order prohibit a supplier from using the provision in the same or similar terms in consumer contracts. (5) A supplier must comply with an order under this section. Penalty: 60 penalty units, in the case of a natural person. 120 penalty units, in the case of a body corporate.'. 67. Supreme Court—limitation of jurisdiction At the end of section 164 of the Fair Trading Act 1999 insert— "(2) It is the intention of section 112A to alter or vary section 85 of the Constitution Act 1975.". 68. Amendment of regulation-making powers Before section 165(1)(a) of the Fair Trading Act 1999 insert— "(aa) prescribing for the purposes of section 32N the form of and the particulars to be included in a contractual term referred to in that section; (ab) prescribing terms which are unfair terms for the purposes of Part 2B;". s. 67 -- 117 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 112 69. New Schedule 2 substituted For Schedule 2 to the Fair Trading Act 1999 substitute— 'SCHEDULE 2 CONTACT SALES AGREEMENTS PART 1—NOTICE TO PURCHASER The following notice is to appear on the front page of a Contact Sales agreement and must be signed by the purchaser: "IMPORTANT NOTICE TO THE PURCHASER YOU HAVE A RIGHT TO CANCEL THIS AGREEMENT WITHIN 10 DAYS FROM AND INCLUDING THE DAY YOU SIGNED THE CONTRACT. IMPORTANT DETAILS ABOUT YOUR RIGHTS ARE SET OUT IN THE CANCELLATION NOTICE PROVIDED WITH THIS AGREEMENT. Signed by the Purchaser: _____________________ Date: _________________________" PART 2—CANCELLATION NOTICE A Cancellation Notice in the following form must accompany a Contact Sales Agreement: 'CANCELLATION NOTICE (supplier or supplier's agent details and date and details of agreement must be completed by supplier or supplier's agent) s. 69 -- 118 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 113 TO THE SUPPLIER or SUPPLIER'S AGENT: Supplier or supplier's agent's name: Supplier or supplier's agent's address: Supplier or supplier's agent's facsimile number (if any): Date of Agreement: Details of goods or services to be supplied under Agreement: I WISH TO CANCEL THIS AGREEMENT. If this is an agreement for the supply of goods: *I RETURN THE GOODS WITH THIS NOTICE or *THE GOODS CAN BE COLLECTED FROM THE FOLLOWING ADDRESS: (*Cross out whichever does not apply) Signed by the Purchaser: ____________ Date: _________________ (The wording below must appear in bold capital print or type, of a size at least as large as the largest print or type appearing on any other part of the notice) "NOTICE TO THE PURCHASER WANTING TO CANCEL THIS AGREEMENT IF YOU WISH TO CANCEL THIS AGREEMENT PLEASE SIGN AND DATE THIS NOTICE OF CANCELLATION AND LEAVE THE NOTICE AT THE SUPPLIER'S OR SUPPLIER'S AGENT'S ADDRESS OR POST IT TO THE SUPPLIER OR THE SUPPLIER'S AGENT'S ADDRESS OR FAX IT TO THE FAX NUMBER SET OUT IN THIS NOTICE. s. 69 -- 119 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 114 THIS MUST BE DONE WITHIN 10 DAYS FROM AND INCLUDING THE DAY YOU SIGNED THE CONTRACT ("THE COOLING-OFF PERIOD"). YOU MAY STILL BE REQUIRED TO PAY A FAIR PRICE FOR GOODS WHICH CANNOT BE RETURNED TO THE SUPPLIER UNLESS YOU ENTERED INTO THE AGREEMENT BECAUSE THE SUPPLIER OR THE SUPPLIER'S AGENT MADE A FALSE OR MISLEADING REPRESENTATION ABOUT YOUR NEED FOR THE GOODS. THE SUPPLIER OR THE SUPPLIER'S AGENT MUST NOT REQUIRE YOU TO PAY FOR SERVICES PROVIDED TO YOU DURING THE COOLING-OFF PERIOD. IF YOU CANCEL THIS AGREEMENT DURING THE COOLING-OFF PERIOD, THE SUPPLIER IS ENTITLED TO APPLY TO THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL ("VCAT") FOR AN ORDER THAT YOU HAVE TO PAY A REASONABLE AMOUNT FOR THE SERVICES YOU RECEIVED BEFORE YOU CANCELLED THE AGREEMENT. YOU WILL NOT BE REQUIRED TO PAY ANYTHING IF VCAT DECIDES THAT THE SUPPLIER OR THE SUPPLIER'S AGENT HAS BREACHED THE FAIR TRADING ACT 1999 IN RELATION TO THIS AGREEMENT, FOR EXAMPLE, BY MAKING A FALSE OR MISLEADING STATEMENT TO YOU ABOUT YOUR NEED FOR THE SERVICES.".'. 70. Amendment to Schedule 3 After clause 7 of Schedule 3 to the Fair Trading Act 1999 insert— "8. Superseded references On the commencement of section 70 of the Fair Trading (Amendment) Act 2003, in any Act (other than this Act), or in any instrument made under any Act or in any other document of any kind— (a) a reference to the Director of Fair Trading or the Director of Consumer and Business Affairs is deemed to be a reference to the Director of Consumer Affairs Victoria; and s. 70 -- 120 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 115 (b) a reference to the Office of Fair Trading, the Office of Fair Trading and Business Affairs or Consumer and Business Affairs Victoria is deemed to be a reference to Consumer Affairs Victoria in the Department of Justice. 9. Actions commenced by Director (1) Any act, matter or thing of a continuing nature commenced under any Act or regulation by or against or in relation to the Director of Consumer and Business Affairs or the Director of Fair Trading and existing immediately before the commencement of section 70 of the Fair Trading (Amendment) Act 2003, may be continued and completed on and after that commencement by or against or in relation to the Director of Consumer Affairs Victoria. (2) If, immediately before the commencement of section 70 of the Fair Trading (Amendment) Act 2003, proceedings to which the Director of Consumer and Business Affairs was a party were pending or existing in any court or tribunal, then, on and after that commencement, the Director of Consumer Affairs Victoria is substituted for the Director of Consumer and Business Affairs as a party to the proceedings and has the same rights and obligations in the proceedings as had the Director of Consumer and Business Affairs. 10. Validation of ban orders (1) An interim ban order or a permanent ban order that was made before the commencement of section 70 of the Fair Trading (Amendment) Act 2003 is valid and effective, and is deemed always to have been valid and effective, despite any failure to comply with the requirements of section 32 of the Interpretation of Legislation Act 1984 or section 40(2)(b) of the Fair Trading Act 1999. s. 70 -- 121 of 143 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading (Amendment) Act 2003 Act No. 30/2003 116 (2) An interim order under section 57C of the Consumer Affairs Act 1972 (as in force before its repeal) is deemed to have been and always to have been valid and effective, despite any failure to comply with the requirements of section 32 of the Interpretation of Legislation Act 1984 or section 57C(1)(b) of the Consumer Affairs Act 1972. (3) An order under section 57D of the Consumer Affairs Act 1972 (as in force before its repeal) is deemed to have been and always to have been valid and effective, despite any failure to comply with the requirements of section 32 of the Interpretation of Legislation Act 1984 or section 57D(1)(b) of the Consumer Affairs Act 1972.". 71. Further amendment to Schedule 3 At the end of Schedule 3 to the Fair Trading Act 1999 insert— "11. Continuation of existing small claims (1) Despite the repeal of the Small Claims Act 1973 by section 72 of the Fair Trading (Amendment) Act 2003, the Small Claims Act 1973 as in force immediately before its repeal continues to apply to any proceeding under that Act existing immediately before the commencement of that section in respect of a small claim. (2) Until 31 July 2004, any application made to the Tribunal using an application form that refers to the Small Claims Act 1973 is deemed to be made on an application form that meets the requirements for an application to the Tribunal in respect of a small claim under Part 9 of the Fair Trading Act 1999.". __________________ s. 71 -- 122 of 143 -- Part 3—Repeals and Amendments Fair Trading (Amendment) Act 2003 Act No. 30/2003 117 PART 3—REPEALS AND AMENDMENTS 72. Repeal of the Small Claims Act 1973 The Small Claims Act 1973 is repealed. 73. Amendment to section 97A of the Goods Act 1958 For section 97A(2)(c) of the Goods Act 1958 substitute— "(c) the term— (i) contains the prescribed particulars (if any) and is in the prescribed form (if any); or (ii) is specified in, or is of a class of term specified in, an Order made under section 97B; and". 74. New section 97B inserted into the Goods Act 1958 After section 97A of the Goods Act 1958 insert— '97B. Exemption from waiver form requirement (1) The Governor in Council, on the recommendation of the Minister, may, by order published in the Government Gazette, provide that a specified term of a sale of recreational services, or a class of such term, See: Act No. 8486/1973. Reprint No. 5 as at 1 July 1998 and amending Act Nos 101/1998 and 17/1999. LawToday: www.dms. dpc.vic. gov.au s. 72 See: Act No. 6265/1958. Reprint No. 9 as at 8 October 1998 and amending Act Nos 27/2001, 44/2001 and 49/2002. LawToday: www.dms. dpc.vic. gov.au -- 123 of 143 -- Part 3—Repeals and Amendments Fair Trading (Amendment) Act 2003 Act No. 30/2003 118 does not need to comply with the requirements of section 97A(2)(c)(i) or (e). (2) The Governor in Council may make an Order under this section subject to any conditions the Governor in Council thinks fit and specifies in the Order. (3) An Order under this section has effect according to its terms. (4) The Governor in Council, on the recommendation of the Minister, may, by Order published in the Government Gazette, vary or revoke an Order made under this section. (5) An Order made under this section ceases to have effect on— (a) the expiry of the anniversary of the date the Order was published in the Government Gazette; or (b) if an earlier expiry date is specified in the Order, that earlier date. (6) On or before the 6 th sitting day after an Order under this section is published in the Government Gazette, the Minister must ensure that a copy of the Order is laid before each House of the Parliament. (7) A failure to comply with sub-section (6) does not affect the operation or effect of the Order but the Scrutiny of Acts and Regulations Committee of the Parliament may report the failure to each House of Parliament. (8) An Order may be disallowed in whole or in part by either House of Parliament. s. 74 -- 124 of 143 -- Part 3—Repeals and Amendments Fair Trading (Amendment) Act 2003 Act No. 30/2003 119 (9) Part 5 of the Subordinate Legislation Act 1994 applies to an Order as if— (a) a reference in that Part to a "statutory rule" were a reference to the Order; and (b) a reference in section 23(1)(c) of that Part to "section 15(1)" were a reference to sub-section (6) of this section.'. 75. Repeal of Part IV of the Goods Act 1958 Part IV of the Goods Act 1958 is repealed. 76. New Part VI inserted in the Goods Act 1958 After Part V of the Goods Act 1958 insert— 'PART VI—TRANSITIONAL AND SAVING 122. Contracts to which Part IV of the Goods Act 1958 will still apply (1) Despite the repeal of Part IV by section 75 of the Fair Trading (Amendment) Act 2003, that Part, as in force immediately before its repeal, continues to apply to a sale of goods or services or lease of goods entered into before the commencement of that section. (2) In this section "sale" and "lease" have the same meanings as they had in Part IV immediately before its repeal.'. 77. New Part 3 inserted in the Business Licensing Authority Act 1998 After Part 2 of the Business Licensing Authority Act 1998 insert— 'PART 3—LICENCE SUSPENSION 20. Definitions In this Part— s. 75 See: Act No. 49/1998 and amending Act Nos 46/1998 and 17/1999. LawToday: www.dms. dpc.vic. gov.au -- 125 of 143 -- Part 3—Repeals and Amendments Fair Trading (Amendment) Act 2003 Act No. 30/2003 120 "licence" means— (a) a licence issued or granted under— (i) the Estate Agents Act 1980; or (ii) the Motor Car Traders Act 1986; or (iii) the Prostitution Control Act 1994; or (iv) the Travel Agents Act 1986; or (b) a right to act as an agent's representative within the meaning of the Estate Agents Act 1980; or (c) a right to participate in a customer service capacity in the business of a motor car trader within the meaning of the Motor Car Traders Act 1986; or (d) an approval under Division 5 of Part 3 of the Prostitution Control Act 1994; or (e) a registration granted under Part 4 of the Consumer Credit (Victoria) Act 1995; or (f) a right to engage in finance broking within the meaning of Part 4A of the Consumer Credit (Victoria) Act 1995; or (g) a right to act as an introduction agent within the meaning of the Introduction Agents Act 1997; or s. 77 -- 126 of 143 -- Part 3—Repeals and Amendments Fair Trading (Amendment) Act 2003 Act No. 30/2003 121 (h) a registration or endorsement of registration under the Second- Hand Dealers and Pawnbrokers Act 1989; "licence suspension period" in relation to a licence, means the period— (a) commencing on the date of service of the notice in relation to the licence under section 21; and (b) ending on— (i) the lapsing of the suspension of the licence under section 23; or (ii) the date of an order referred to in section 23(2) relating to the suspension of the licence; "licensee", in relation to a licence, means the person who is the holder of the licence. 21. Authority may suspend licence (1) Despite anything to the contrary in a business licensing Act or any other Act or law other than this Part, the Authority may suspend a licence by notice in writing issued to the licensee. (2) The Authority may only suspend a licence under this section if the Authority has reasonable grounds to believe that— (a) the licensee has engaged in conduct that under the relevant business licensing Act would constitute grounds for the initiation of disciplinary action against the licensee or the bringing of proceedings for an offence or for an injunction; and s. 77 -- 127 of 143 -- Part 3—Repeals and Amendments Fair Trading (Amendment) Act 2003 Act No. 30/2003 122 (b) it is likely that the licensee will continue to engage in that conduct; and (c) there is a danger that a person may suffer substantial harm, loss or damage as a result of that conduct unless action is taken urgently. (3) A notice under sub-section (1)— (a) must be served— (i) personally on a licensee who is a natural person; or (ii) at the registered office and the last known business address of a licensee that is a corporation; or (iii) at the last known business address of a licensee that is a body corporate, other than a corporation; (b) must specify the conduct which the licensee is believed to have engaged in; (c) must state the rights of review open to the licensee; (d) has effect, whether or not the licensee has been afforded an opportunity to be heard on the matter. (4) Despite sub-section (3)(a)(i), if, on the application of the Authority, it appears to the Tribunal that service cannot be promptly effected on a licensee who is a natural person, the Tribunal may order that the notice be served— (a) by sending it by post, facsimile or other electronic transmission to the person at his or her usual or last known residential or business address; or s. 77 -- 128 of 143 -- Part 3—Repeals and Amendments Fair Trading (Amendment) Act 2003 Act No. 30/2003 123 (b) by leaving it at the person's usual or last known residential or business address with a person on the premises who is apparently at least 16 years old and apparently residing or employed there. (5) The suspension takes effect on the service of the notice. 22. Effect of suspension (1) This section applies despite anything to the contrary in a business licensing Act or any other Act or law other than this Part. (2) If a notice is issued under this Part suspending— (a) an estate agent's licence under the Estate Agents Act 1980; or (b) a motor car trader's licence under the Motor Car Traders Act 1986; or (c) a licence within the meaning of the Prostitution Control Act 1994; or (d) a travel agent's licence under the Travel Agents Act 1986— the licence is deemed to be suspended for the purposes of that Act for the licence suspension period. (3) If a notice is issued under this Part suspending a licensee's right to act as an agent's representative within the meaning of the Estate Agents Act 1980, the licensee is deemed to be ineligible to act as an agent's representative for the purposes of that Act for the licence suspension period. s. 77 -- 129 of 143 -- Part 3—Repeals and Amendments Fair Trading (Amendment) Act 2003 Act No. 30/2003 124 (4) If a notice is issued under this Part suspending a licensee's right to participate in a customer service capacity in the business of a motor car trader within the meaning of the Motor Car Traders Act 1986, the licensee is deemed, for the purposes of that Act, not to be permitted to be employed in a customer service capacity by a motor car trader for the licence suspension period. (5) If a notice is issued under this Part suspending an approval under Division 5 of Part 3 of the Prostitution Control Act 1994, the approval is deemed to be suspended for the purposes of that Act for the licence suspension period. (6) If a notice is issued under this Part suspending the registration of a licensee under Part 4 of the Consumer Credit (Victoria) Act 1995, the registration is deemed to be suspended for the purposes of that Part for the licence suspension period. (7) If a notice is issued under this Part suspending a licensee's right to engage in finance broking within the meaning of Part 4A of the Consumer Credit (Victoria) Act 1995, the licensee is deemed to be prohibited from engaging in finance broking for the purposes of that Act for the licence suspension period. (8) If a notice is issued under this Part suspending a licensee's right to act as an introduction agent within the meaning of the Introduction Agents Act 1997, the licensee is deemed to be disqualified from acting as an introduction agent for the purposes of that Act for the licence suspension period. s. 77 -- 130 of 143 -- Part 3—Repeals and Amendments Fair Trading (Amendment) Act 2003 Act No. 30/2003 125 (9) If a notice is issued under this Part suspending the registration or endorsement of registration of a licensee under the Second-Hand Dealers and Pawnbrokers Act 1989, the registration or endorsement is deemed to be suspended for the purposes of that Act for the licence suspension period. 23. Lapsing or continuation of suspension (1) A suspension under this Part lapses if within the required period after the service of the notice— (a) an application is not made to the Tribunal under a business licensing Act to inquire into the conduct of the licensee that is the subject of the notice; or (b) proceedings have not commenced in a court in relation to the conduct of the licensee that is the subject of the notice. (2) If within the required period after the service of the notice— (a) an application is made to the Tribunal under a business licensing Act to inquire into the conduct of the licensee that is the subject of the notice; or (b) proceedings are commenced in a court in relation to the conduct of the licensee that is the subject of the notice— the suspension continues until a further order is made by the Tribunal or the court. (3) If a suspension lapses under this section after service of a notice, the Authority must not serve another notice on the licensee under this Part for a period of 6 months from the date of service of the first notice. s. 77 -- 131 of 143 -- Part 3—Repeals and Amendments Fair Trading (Amendment) Act 2003 Act No. 30/2003 126 (4) The power conferred by this Part is in addition to and does not limit or displace a power conferred on the Authority or any other person or body by or under a business licensing Act to suspend or cancel a licence or to take action against a licensee in respect of the conduct concerned. (5) In this section "required period" means— (a) 14 days; or (b) if the Tribunal or a court makes an order under section 24 extending that period, that extended period. 24. Extension of period (1) The Director, at the request of the Authority, may apply to the Tribunal or the court within 14 days after the service of a notice under section 21 or if, an extension of that period has been granted under this section, before the end of the period of the extension, to extend the period within which an application must be made or proceedings commenced for the purposes of section 23(1) and (2). (2) On an application under sub-section (1), the Tribunal or court— (a) must consider the likelihood that an application or proceedings referred to in section 23(1) and (2) will be made or commenced; and (b) may make an order extending the period if in all the circumstances it considers it just and convenient to do so. (3) An extension may be for a period not exceeding 14 days. s. 77 -- 132 of 143 -- Part 3—Repeals and Amendments Fair Trading (Amendment) Act 2003 Act No. 30/2003 127 (4) The Tribunal or court may adjourn any application under this section to enable notice of the application to be given to any person. 25. Right of review A licensee may apply to the Tribunal for a review of the decision to issue a notice under this Part.'. 78. Amendment to the Interpretation of Legislation Act 1984 In section 32(4)(a) of the Interpretation of Legislation Act 1984, for "must cause—" insert "must, if the subordinate instrument is itself required to be laid before each House of the Parliament, cause—". 79. New Part 7AA inserted in Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 After Part 7 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 insert— 'PART 7AA—FAIR TRADING ACT 1999 28AA. What is a "small claim"? In this Part "small claim" has the meaning that it has in Part 9 of the Fair Trading Act 1999. 28BB. Representation (1) A party to a proceeding relating to a small claim may be represented by a professional advocate only if— (a) the Tribunal is satisfied that no other party to the proceeding will be unfairly disadvantaged if the representation is allowed; and s. 78 See: Act No. 10096/1984. Reprint No. 7 as at 19 June 2002. LawToday: www.dms. dpc.vic. gov.au See: Act No. 53/1998. Reprint No. 2 as at 15 July 2001 and amending Act Nos 98/2000, 2/2001, 68/2001, 96/2001, 36/2002, 41/2002 and 45/2002. LawToday: www.dms. dpc.vic. gov.au -- 133 of 143 -- Part 3—Repeals and Amendments Fair Trading (Amendment) Act 2003 Act No. 30/2003 128 (b) either— (i) all parties to the proceeding agree; or (ii) the Tribunal directs that the representation be allowed. (2) Section 62(1)(b) does not apply to a proceeding relating to a small claim. 28CC. Withdrawal of application Despite section 74(1), a person who lodges an application relating to a small claim may withdraw that application without the leave of the Tribunal. 28DD. Tribunal cannot extend time for commencing proceedings Section 126(1) does not apply to a proceeding relating to a small claim. 28EE. Member of Tribunal can mediate (1) Section 88(6) does not apply to a proceeding relating to a small claim. (2) If the mediator is a member of the Tribunal a party may object to the mediator constituting the Tribunal (whether with or without others) for the purpose of hearing the proceeding. (3) An objection under sub-clause (2) must be made to the Tribunal before or at the commencement of the hearing. 28FF. Resolution of objection to certain members constituting the Tribunal (1) If a party to a proceeding relating to a small claim objects to the member who presided over a compulsory conference in the proceeding, or to a mediator in the proceeding, constituting the Tribunal for the purpose of hearing the proceeding (whether with or without others), the Tribunal must determine whether or not the member may continue to constitute the Tribunal for that purpose. s. 79 -- 134 of 143 -- Part 3—Repeals and Amendments Fair Trading (Amendment) Act 2003 Act No. 30/2003 129 (2) For the purpose of making a determination under sub-clause (1), the Tribunal may be constituted (whether with or without others) by the member against whom the objection was made. (3) Section 86(3) does not apply to a proceeding relating to a small claim. 28GG. Costs and security for costs (1) The Tribunal cannot order costs in a proceeding relating to a small claim, except in a review of a determination under section 120 in respect of such a proceeding. (2) Section 79 does not apply to a review of a determination under section 120 in respect of a proceeding relating to a small claim. 28HH. Reasons must be requested at time of decision Despite anything to the contrary in section 117(2), the Tribunal is not obliged to give a person written reasons for an order made in a proceeding relating to a small claim unless the person has made a request to the Tribunal for written reasons for orders that may be made in the proceeding before or at the time of the giving or notification of the Tribunal's decision in the proceeding.'. 80. Repeal of Part 18 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 Part 18 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 is repealed. s. 80 -- 135 of 143 -- Part 3—Repeals and Amendments Fair Trading (Amendment) Act 2003 Act No. 30/2003 130 81. Amendments to the Administrative Law Act 1978 (1) In section 4(3) of the Administrative Law Act 1978, for "under the Small Claims Act 1973" substitute "under Part 9 of the Fair Trading Act 1999 in relation to a small claim". (2) At the end of section 15 of the Administrative Law Act 1978 insert— "(2) It is the intention of section 4(3), as amended by the Fair Trading (Amendment) Act 2003, to alter or vary section 85 of the Constitution Act 1975.". 82. Amendments to the Building Act 1993 (1) In sections 137B(4) and 137B(5) of the Building Act 1993, for "Consumer and Business Affairs" substitute "Consumer Affairs Victoria". (2) In the heading to section 196A of the Building Act 1993, for "Consumer and Business Affairs" substitute "Consumer Affairs Victoria". (3) In section 196A of the Building Act 1993, for "Consumer and Business Affairs" substitute "Consumer Affairs Victoria". s. 81 See: Act No. 9234/1978. Reprint No. 4 as at 1 October 1998 and amending Act Nos 52/1998 (as amended by 101/1998) and 74/2000. LawToday: www.dms. dpc.vic. gov.au See: Act No. 126/1993. Reprint No. 4 as at 8 June 2001 and amending Act Nos 26/2001, 30/2001, 32/2001, 68/2001, 11/2002, 15/2002 and 36/2002. LawToday: www.dms. dpc.vic. gov.au -- 136 of 143 -- Part 3—Repeals and Amendments Fair Trading (Amendment) Act 2003 Act No. 30/2003 131 83. Amendment to the Co-operative Housing Societies Act 1958 In section 72B(2)(c)(iv) of the Co-operative Housing Societies Act 1958, for "Consumer and Business Affairs" substitute "Consumer Affairs Victoria". 84. Amendments to the Domestic Building Contracts Act 1995 (1) For section 43D(2) of the Domestic Building Contracts Act 1995 substitute— "(2) The Director must not, under sub-section (1), institute or defend proceedings on behalf of a building owner unless that building owner has given consent in writing. (3) After consent has been given under sub- section (2), the Director may institute or continue with a proceeding or defence on behalf of a building owner even if the building owner revokes the consent.". (2) In section 43E(1) of the Domestic Building Contracts Act 1995— (a) in paragraph (c) for "an amount" (where first occurring) substitute "subject to sub- sections (1A) and (1B), an amount"; (b) in paragraph (e) for "the building owner" substitute "subject to sub-section (1A), the building owner". s. 83 See: Act No. 6226/1958. Reprint No. 8 as at 11 October 2001. LawToday: www.dms. dpc.vic. gov.au See: Act No. 91/1995. Reprint No. 5 as at 1 July 2002. LawToday: www.dms. dpc.vic. gov.au -- 137 of 143 -- Part 3—Repeals and Amendments Fair Trading (Amendment) Act 2003 Act No. 30/2003 132 (3) After section 43E(1) of the Domestic Building Contracts Act 1995 insert— "(1A) If the Director institutes, defends or continues proceedings on behalf of a building owner after the building owner revokes the consent to the proceedings— (a) the Director must compensate the building owner for— (i) any loss suffered as the result of the loss of any settlement offer made to the building owner; and (ii) out-of-pocket expenses incurred by the building owner during the proceedings after the revocation of consent; and (b) the Director is liable to pay any amount awarded against the building owner in the proceedings. (1B) If the Director institutes, defends or continues proceedings on behalf of a building owner after the building owner revokes the consent to the proceedings or defence, any amount recovered in the proceedings (including any amount for costs) that exceeds the amount payable to the building owner under sub-section (1A) may be applied to the payment of the costs of and incidental to the proceedings for which the Director is liable or that are incurred by the Director in relation to the proceedings.". s. 84 -- 138 of 143 -- Part 3—Repeals and Amendments Fair Trading (Amendment) Act 2003 Act No. 30/2003 133 85. Amendments to the Electricity Industry Act 2000 After section 35(7) of the Electricity Industry Act 2000 insert— "(7A) If an agreement for the sale and supply of electricity is amended as a result of a variation under sub-section (3) or (4) and the agreement is a contact sales agreement within the meaning of the Fair Trading Act 1999, section 61(1)(g) of that Act does not apply to that amendment.". 86. Amendment to the Fundraising Appeals Act 1998 In section 3 of the Fundraising Appeals Act 1998, in the definition of "Director", for "of Consumer and Business Affairs" substitute "within the meaning of the Fair Trading Act 1999". 87. Amendments to the Gas Industry Act 2001 After section 42(7) of the Gas Industry Act 2001 insert— "(7A) If an agreement for the sale and supply of gas is amended as a result of a variation under sub-section (3) or (4) and the agreement is a contact sales agreement within the meaning of the Fair Trading Act 1999, section 61(1)(g) of that Act does not apply to that amendment.". s. 85 See: Act No. 68/2000. Reprint No. 1 as at 13 June 2002. and amending Act No. 10/2002. LawToday: www.dms. dpc.vic. gov.au See: Act No. 78/1998. Reprint No. 1 as at 1 January 2002 and amending Act No. 23/2002. LawToday: www.dms. dpc.vic. gov.au See: Act No. 31/2001. Reprint No. 1 as at 2 July 2002. LawToday: www.dms. dpc.vic. gov.au -- 139 of 143 -- Part 3—Repeals and Amendments Fair Trading (Amendment) Act 2003 Act No. 30/2003 134 88. Amendments to the Partnership Act 1958 (1) In section 49(1) of the Partnership Act 1958— (a) the definition of "Commissioner" is repealed; (b) insert the following definition— ' "Director" means Director within the meaning of the Fair Trading Act 1999;'. (2) In sections 49(2), 54(1), 54(2), 55(1), 55(2), 55(3), 56(1), 56(3), 56(4), 57(1), 57(2), 57(3), 57(4), 57(5), 58(1), 58(2), 58(3), 72(1), 72(2), 72(3), 78, 79(1), 79(2), 79A(1), 79A(2), 79C(1), 79C(2), 79C(3), 79D(1), 79D(3), 79D(4), 79D(5), 79D(6), 79E, 79F(1), 79F(2), 80(2), of the Partnership Act 1958, for "Commissioner" (wherever occurring) substitute "Director". (3) Insert the following heading to section 79F of the Partnership Act 1958— "Power of Director to refuse to register or reject documents". 89. New section 79G inserted in the Partnership Act 1958 After section 79F of the Partnership Act 1958 insert— "79G. Actions commenced by Commissioner for Corporate Affairs (1) Any act, matter or thing of a continuing nature commenced under this Act or regulations made under this Act, by or against or in relation to the Commissioner for Corporate Affairs and existing immediately before the commencement of section 89 of the Fair Trading (Amendment) Act 2003, may be continued and completed on and after that s. 88 See: Act No. 6330/1958. Reprint No. 5 as at 4 February 1999 and amending Act Nos 35/2000, 27/2001, 44/2001 and 9/2002. LawToday: www.dms. dpc.vic. gov.au -- 140 of 143 -- Part 3—Repeals and Amendments Fair Trading (Amendment) Act 2003 Act No. 30/2003 135 commencement by or against or in relation to the Director of Consumer Affairs Victoria. (2) If, immediately before the commencement of section 89 of the Fair Trading (Amendment) Act 2003, proceedings under this Act to which the Commissioner for Corporate Affairs was a party were pending or existing in any court or tribunal, then, on and after that commencement, the Director of Consumer Affairs Victoria is substituted for the Commissioner for Corporate Affairs as a party to the proceedings and has the same rights and obligations in the proceedings as had the Commissioner for Corporate Affairs.". 90. Amendment to the Petroleum Retail Selling Sites Act 1981 In section 4(9) of the Petroleum Retail Selling Sites Act 1981, for "Consumer and Business Affairs" substitute "Consumer Affairs Victoria". s. 90 See: Act No. 9704/1981 and amending Act Nos 17/1999 and 35/2000. LawToday: www.dms. dpc.vic. gov.au -- 141 of 143 -- Part 3—Repeals and Amendments Fair Trading (Amendment) Act 2003 Act No. 30/2003 136 91. Amendment to the Residential Tenancies Act 1997 In Part 12 of the Residential Tenancies Act 1997, in the heading to Division 1, for "Consumer and Business Affairs" substitute "Consumer Affairs Victoria". ═══════════════ s. 91 See: Act No. 109/1997. Reprint No. 2 as at 13 January 2000 and amending Act Nos 28/2000, 35/2000, 74/2000, 11/2001, 27/2001, 11/2002 and 45/2002. LawToday: www.dms. dpc.vic. gov.au -- 142 of 143 -- Fair Trading (Amendment) Act 2003 Act No. 30/2003 137 ENDNOTES † Minister's second reading speech— Legislative Assembly: 7 May 2003 Legislative Council: 21 May 2003 The long title for the Bill for this Act was "to amend the Fair Trading Act 1999, to repeal the Small Claims Act 1973, to repeal Part IV of the Goods Act 1958, to amend the Business Licensing Authority Act 1998 and other Acts and for other purposes." Constitution Act 1975: Section 85(5) statement: Legislative Assembly: 7 May 2003 Legislative Council: 21 May 2003 Absolute majorities: Legislative Assembly: 21 May 2003, 22 May 2003 Legislative Council: 22 May 2003 Endnotes -- 143 of 143 --