LAWS622 Law of Contract Auckland University of Technology

Auckland University of Technology

LAWS622 Law of Contract Auckland University of Technology

36J Bankruptcy, receivership, or liquidation of supplier: consumer
priority
51
Subpart 2—Uninvited direct sales
36K Meaning of uninvited direct sale agreement 52
36L Disclosure requirements relating to uninvited direct sale
agreements
53
36M Cancellation of uninvited direct sale agreement by consumer 55
36N Enforcement of uninvited direct sale agreement by supplier 55
36O Effect of cancellation of uninvited direct sale agreement 55
36P Supplier’s obligations on cancellation of uninvited direct sale
agreement
56
36Q Consumer’s obligations on cancellation of uninvited direct sale
agreement
56
36R Compensation on cancellation of uninvited direct sale agreement 57
36S Regulations 58
Subpart 3—Extended warranties
36T Meaning of extended warranty agreement and related definitions 58
36U Disclosure requirements relating to extended warranty agreements 59
36V Cancellation of extended warranty agreement 60
36W Regulations 61
Subpart 4—Auctions
36X Definitions 61
36Y Application of subpart 62
36Z Each lot is separate contract of sale 62
36ZA Start and end of auction 62
36ZB Notice to participants 62
36ZC Vendors selling in trade 63
36ZD Vendor bids 63
36ZE Bids may be withdrawn until end of auction 64
36ZF Account and payment of proceeds 64
Part 5
Enforcement and remedies
Jurisdiction of courts
37 Jurisdiction of High Court 65
38 Jurisdiction of District Court 66
39 Jurisdiction of Disputes Tribunal 66
Offences
40 Contraventions of provisions of Parts 1 to 4A an offence 67
40A Additional penalty for contravention of section 24 involving
commercial gain
67
40B Infringement offence, etc, defined 68
Fair Trading Act 1986
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40C Infringement offence alleged 68
40D Issue of infringement notice 69
40E Procedural requirements for infringement notices 69
40F What Commission does with infringement fees 70
40G Effect of infringement notice 70
40H Regulations relating to infringement offences 70
Civil proceedings
41 Injunctions may be granted by court for contravention of Part 1,
Part 2, Part 3, and Part 4
71
42 Order to disclose information or publish advertisement 72
43 Other orders 73
43A Application for order under section 43 74
43B Limits on jurisdiction of District Court and Disputes Tribunal to
make orders under section 43
75
44 Defences 75
45 Conduct by servants or agents 77
46 Finding in proceedings to be evidence 78
Enforceable undertakings
46A Commission may accept undertakings 78
46B Enforcement of undertakings 79
Management banning orders
46C Management banning orders 79
46D Terms of management banning orders 80
46E Offence to breach management banning order 80
46F Procedures relating to management banning order 80
46G Seeking leave of court 81
Declaration of unfair contract terms
46H Application by Commission for declaration of unfair contract term 81
46I Declaration of unfair contract terms 81
46J Standard form contracts 82
46K Terms that may not be declared to be unfair contract terms 82
46L When term in consumer contract is unfair 83
46M Examples of unfair contract terms 84
Part 6
Miscellaneous provisions
47 Power to search 85
47A Powers conferred by warrant [Repealed] 86
47B Warrant to be produced [Repealed] 86
47C Other duties of person who executes a warrant [Repealed] 86
47D Duty to assist [Repealed] 86
47E Power to inspect documents and goods [Repealed] 86
47F Offence to resist, obstruct, or delay 86
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5
47G Commission may require person to supply information or
documents or give evidence
87
47H Notices 88
47I Service of notices 88
47J Offence to contravene section 47G 89
47K Commission may authorise employees for monitoring and
enforcement purposes
90
47L Powers of authorised employees 90
48 Proceedings privileged 92
48A Sharing of information and documents with Financial Markets
Authority or Takeovers Panel
93
48B Purpose of sections 48C to 48O (which relate to assistance to
overseas regulators)
93
48C Definitions of terms used in sections 48B to 48O 94
48D Restrictions on providing compulsorily acquired information and
investigative assistance
94
48E Government-to-government co-operation arrangements 95
48F Regulator-to-regulator co-operation arrangements 95
48G Content of co-operation arrangements 95
48H Procedures relating to co-operation arrangements 96
48I Providing compulsorily acquired information and investigative
assistance
96
48J Conditions on providing compulsorily acquired information and
investigative assistance
97
48K Notice to persons affected by provision of information 98
48L Reporting on use of co-operation arrangements 98
48M Sharing of non-compulsorily acquired information not affected 99
48N Information provided by consent 99
48O Maintenance of privilege 99
48P Proceedings relating to financial products or financial services 100
48Q No pecuniary penalty and fine for same conduct involving
financial products or financial services
101
48R Unsubstantiated representations prohibition does not apply to
financial markets disclosure
101
48S Certain conduct under Financial Markets Conduct Act 2013 does
not contravene various provisions of this Act
102
49 Repeals and consequential amendments 102
50 Saving of other laws 102
51 Application of Act to goods that are, or may be, exported to China 102
Schedule 1
Enactment amended
[Repealed]
103
Schedule 2
Enactments repealed
104
Fair Trading Act 1986
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Schedule 3
Orders and notices revoked
105
Title [Repealed]
Title: repealed, on 18 December 2013, by section 4 of the Fair Trading Amendment Act 2013 (2013
No 143).
1 Short Title and commencement
(1) This Act may be cited as the Fair Trading Act 1986.
(2) Except as provided in section 49(3), this Act shall come into force on 1 March
1987.
1A Purpose
(1) The purpose of this Act is to contribute to a trading environment in which—
(a) the interests of consumers are protected; and
(b) businesses compete effectively; and
(c) consumers and businesses participate confidently.
(2) To this end, the Act—
(a) prohibits certain unfair conduct and practices in relation to trade; and
(b) promotes fair conduct and practices in relation to trade; and
(c) provides for the disclosure of consumer information relating to the supply
of goods and services; and
(d) promotes safety in respect of goods and services.
Section 1A: inserted, on 18 December 2013, by section 5 of the Fair Trading Amendment Act 2013
(2013 No 143).
2 Interpretation
(1) In this Act, unless the context otherwise requires,—
acquire,—
(a) in relation to goods, includes obtain by way of gift, purchase, or
exchange; and also includes take on lease, hire, or hire purchase:
(b) in relation to services, includes accept:
(c) in relation to interests in land, includes obtain by way of gift, purchase,
exchange, lease or licence and acquisition has a corresponding meaning
advertisement means any form of communication made to the public or a section
of the public for the purpose of promoting the supply of goods or services
or the sale or granting of an interest in land
auction has the meaning given in section 36X
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1 June 2020 Fair Trading Act 1986 s 2
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business means any undertaking—
(a) that is carried on whether for gain or reward or not; or
(b) in the course of which—
(i) goods or services are acquired or supplied; or
(ii) any interest in land is acquired or disposed of—
whether free of charge or not
chief executive means the chief executive of the Ministry
Commission means the Commerce Commission established by section 8 of the
Commerce Act 1986
consumer means a person who—
(a) acquires from a supplier goods or services of a kind ordinarily acquired
for personal, domestic, or household use or consumption; and
(b) does not acquire the goods or services, or hold himself or herself out as
acquiring the goods or services, for the purpose of—
(i) resupplying them in trade; or
(ii) consuming them in the course of a process of production or manufacture;
or
(iii) in the case of goods, repairing or treating, in trade, other goods or
fixtures on land
consumer contract means a contract,—
(a) in the case of a contract relating to goods or services, between—
(i) at least 1 supplier supplying the goods or services in trade; and
(ii) at least 1 consumer; and
(b) in the case of a contract relating to the sale or grant of an interest in land,
between—
(i) at least 1 person disposing, in trade, of an interest in the land; and
(ii) at least 1 person acquiring an interest in the land for personal,
domestic, or residential purposes
credit instrument means any agreement (whether in writing or not) acknowledging
an obligation to pay a sum or sums of money on demand or at any
future time or times
document means a document in any form whether signed or initialled or otherwise
authenticated by its maker or not; and includes—
(a) any writing on any material:
(b) any information recorded or stored by means of any tape recorder, computer,
or other device; and any material subsequently derived from information
so recorded or stored:
s 2 Fair Trading Act 1986
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(c) any label, marking, or other writing that identifies or describes any thing
of which it forms part, or to which it is attached by any means:
(d) any book, map, plan, graph, or drawing:
(e) any photograph, film, negative, tape, or other device in which 1 or more
visual images are embodied so as to be capable (with or without the aid
of some other equipment) of being reproduced
extended warranty agreement has the meaning given in section 36T
goods—
(a) means personal property of every kind (whether tangible or intangible);
and
(b) includes—
(i) ships, aircraft, and vehicles:
(ii) animals, including fish:
(iii) minerals, trees, and crops, whether on, under, or attached to land
or not:
(iv) gas and electricity:
(v) to avoid doubt, water and computer software
infringement fee, infringement notice, and infringement offence have the
meanings given in section 40B
layby sale agreement has the meaning given in section 36B
local authority includes every local authority and every public body or other
authority created by or pursuant to any public Act or local Act
Minister means the Minister of Consumer Affairs
Ministry means the department of State that, with the authority of the Prime
Minister, is for the time being responsible for the administration of this Act
negotiation, in relation to an agreement or a proposed agreement, includes any
discussion or dealing directed towards making the agreement or proposed
agreement (whether or not the terms of the agreement or proposed agreement
are open to any discussion or dealing)
official standard means—
(a) a New Zealand Standard within the meaning of section 4(1) of the
Standards and Accreditation Act 2015; or
(b) a standard specification prescribed by a body, organisation, or association
having or performing similar functions to those of the NZ Standards
Organisation (as that term is defined in the Standards and Accreditation
Act 2015)
person includes a local authority, and any association of persons whether
incorporated or not
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1 June 2020 Fair Trading Act 1986 s 2
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place includes any premises, building, aircraft, ship, carriage, vehicle, box, or
receptacle
price includes valuable consideration in any form, whether direct or indirect;
and includes any consideration that in effect relates to the acquisition or supply
of goods or services or the acquisition or disposition of any interest in land,
although ostensibly relating to any other matter or thing
services includes any rights (including rights in relation to, and interests in,
real or personal property), benefits, privileges, or facilities that are or are to be
provided, granted, or conferred and, without limiting the generality of the foregoing,
also includes the rights, benefits, privileges, or facilities that are or are
to be provided, granted, or conferred under any of the following classes of contract:
(a) a contract for, or in relation to,—
(i) the performance of work (including work of a professional
nature), whether with or without the supply of goods; or
(ii) the provision of, or the use or enjoyment of facilities for, accommodation,
amusement, the care of persons or animals or things,
entertainment, instruction, parking, or recreation; or
(iii) the conferring of rights, benefits, or privileges for which remuneration
is payable in the form of a royalty, tribute, levy, or similar
exaction:
(iv) to avoid doubt, the supply of electricity, gas, telecommunications,
or water, or the removal of waste water:
(b) a contract of insurance, including life assurance, and life reassurance:
(c) a contract between a bank and a customer of the bank:
(d) any contract for, or in relation to, the lending of money or granting of
credit, or the making of arrangements for the lending of money or granting
of credit, or the buying or discounting of a credit instrument, or the
acceptance of deposits;—
but does not include rights or benefits in the form of the supply of goods or the
performance of work under a contract of service
standard form consumer contract means a consumer contract that a court, in
the course of proceedings for a declaration under section 46I, and in accordance
with section 46J, determines is a standard form contract
supply—
(a) in relation to goods, includes supply (or resupply) by way of gift, sale,
exchange, lease, hire, or hire purchase; and
(b) in relation to services, includes provide, grant, or confer;—
and supply as a noun, supplied, and supplier have corresponding meanings
s 2 Fair Trading Act 1986
Reprinted as at
1 June 2020
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trade means any trade, business, industry, profession, occupation, activity of
commerce, or undertaking relating to the supply or acquisition of goods or services
or to the disposition or acquisition of any interest in land
transparent, in relation to a term in a contract, means a term that—
(a) is expressed in reasonably plain language; and
(b) is legible; and
(c) is presented clearly; and
(d) is readily available to any party affected by the term
unfair contract term means a term in a consumer contract that a court has
declared, under section 46I, is an unfair contract term
uninvited direct sale agreement has the meaning given in section 36K
unsolicited goods has the meaning given in section 21A(7)
unsolicited services has the meaning given in section 21B(2).
(2) In this Act, a reference to engaging in conduct shall be read as a reference to
doing or refusing to do an act, and includes,—
(a) omitting to do an act; or
(b) making it known that an act will or, as the case may be, will not be done.
(3) In this Act—
(a) a reference to the acquisition of goods includes a reference to the acquisition
of property in, or rights in relation to, goods, in pursuance of a supply
of the goods:
(b) a reference to the supply or acquisition of goods or services includes a
reference to agreeing to supply or acquire goods or services:
(c) a reference to the supply or acquisition of goods includes a reference to
the supply or acquisition of goods together with other property or services
or both:
(d) a reference to the supply or acquisition of services includes a reference
to the supply or acquisition of services together with property or other
services or both:
(e) a reference to the resupply of goods acquired from a person includes a
reference to—
(i) a supply of goods to another person in an altered form or condition;
and
(ii) a supply to another person of other goods in which the goods have
been incorporated.
Section 2(1) auction: inserted, on 17 June 2014, by section 6(3) of the Fair Trading Amendment Act
2013 (2013 No 143).
Section 2(1) chief executive: inserted, on 18 December 2013, by section 6(2) of the Fair Trading
Amendment Act 2013 (2013 No 143).
Reprinted as at
1 June 2020 Fair Trading Act 1986 s 2
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Section 2(1) Commission: amended, on 25 January 2005, by section 200 of the Crown Entities Act
2004 (2004 No 115).
Section 2(1) consumer: inserted, on 18 December 2013, by section 6(2) of the Fair Trading Amendment
Act 2013 (2013 No 143).
Section 2(1) consumer contract: inserted, on 17 June 2014, by section 6(3) of the Fair Trading
Amendment Act 2013 (2013 No 143).
Section 2(1) court: repealed, on 18 December 2013, by section 6(1) of the Fair Trading Amendment
Act 2013 (2013 No 143).
Section 2(1) extended warranty agreement: inserted, on 18 December 2013, by section 6(2) of the
Fair Trading Amendment Act 2013 (2013 No 143).
Section 2(1) goods: substituted, on 8 July 2003, by section 3(1) of the Fair Trading Amendment Act
(No 2) 2003 (2003 No 34).
Section 2(1) infringement fee, infringement notice, and infringement offence: inserted, on
18 December 2013, by section 6(2) of the Fair Trading Amendment Act 2013 (2013 No 143).
Section 2(1) layby sale agreement: inserted, on 18 December 2013, by section 6(2) of the Fair Trading
Amendment Act 2013 (2013 No 143).
Section 2(1) Ministry: inserted, on 18 December 2013, by section 6(2) of the Fair Trading Amendment
Act 2013 (2013 No 143).
Section 2(1) negotiation: inserted, on 18 December 2013, by section 6(2) of the Fair Trading
Amendment Act 2013 (2013 No 143).
Section 2(1) officer of the Commission: repealed, on 25 January 2005, by section 200 of the Crown
Entities Act 2004 (2004 No 115).
Section 2(1) official standard: inserted, on 28 July 1997, by section 2 of the Fair Trading Amendment
Act 1997 (1997 No 43).
Section 2(1) official standard paragraph (a): amended, on 1 March 2016, by section 45(1) of the
Standards and Accreditation Act 2015 (2015 No 91).
Section 2(1) official standard paragraph (b): amended, on 1 March 2016, by section 45(1) of the
Standards and Accreditation Act 2015 (2015 No 91).
Section 2(1) place: inserted, on 1 July 1990, by section 2 of the Fair Trading Amendment Act 1990
(1990 No 42).
Section 2(1) services paragraph (a)(iv): added, on 8 July 2003, by section 3(2) of the Fair Trading
Amendment Act (No 2) 2003 (2003 No 34).
Section 2(1) standard form consumer contract: inserted, on 17 June 2014, by section 6(3) of the
Fair Trading Amendment Act 2013 (2013 No 143).
Section 2(1) transparent: inserted, on 17 June 2014, by section 6(3) of the Fair Trading Amendment
Act 2013 (2013 No 143).
Section 2(1) unfair contract term: inserted, on 17 June 2014, by section 6(3) of the Fair Trading
Amendment Act 2013 (2013 No 143).
Section 2(1) uninvited direct sale agreement: inserted, on 17 June 2014, by section 6(3) of the Fair
Trading Amendment Act 2013 (2013 No 143).
Section 2(1) unsolicited goods: inserted, on 17 June 2014, by section 6(3) of the Fair Trading
Amendment Act 2013 (2013 No 143).
Section 2(1) unsolicited services: inserted, on 17 June 2014, by section 6(3) of the Fair Trading
Amendment Act 2013 (2013 No 143).
3 Application of Act to conduct outside New Zealand
(1) This Act extends to the engaging in conduct outside New Zealand by any person
resident or carrying on business in New Zealand to the extent that such
s 3 Fair Trading Act 1986
Reprinted as at
1 June 2020
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