business law

Law for New Zealand Business

LAWS541

Fair Trading Act 1986

(Extracts)

2 Interpretation

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

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.

9 Misleading and deceptive conduct generally

No person shall, in trade, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

10 Misleading conduct in relation to goods

No person shall, in trade, engage in conduct that is liable to mislead the public as to the nature, manufacturing process, characteristics, suitability for a purpose, or quantity of goods.

11 Misleading conduct in relation to services

No person shall, in trade, engage in conduct that is liable to mislead the public as to the nature, characteristics, suitability for a purpose, or quantity of services.

False representations

13 False or misleading representations

No person shall, in trade, in connection with the supply or possible supply of

goods or services or with the promotion by any means of the supply or use of goods or services,—

(a) make a false or misleading representation that goods are of a particular

kind, standard, quality, grade, quantity, composition, style, or model, or

have had a particular history or particular previous use; or

(b) make a false or misleading representation that services are of a particular

kind, standard, quality, or quantity, or that they are supplied by any particular person or by any person of a particular trade, qualification, or

skill, or by a person who has other particular characteristics; or

(c) make a false or misleading representation that a particular person has

agreed to acquire goods or services; or

(d) make a false or misleading representation that goods are new, or that they are reconditioned, or that they were manufactured, produced, processed, or reconditioned at a particular time; or

(e) make a false or misleading representation that goods or services have

any sponsorship, approval, endorsement, performance characteristics,

accessories, uses, or benefits; or

(f) make a false or misleading representation that a person has any sponsorship, approval, endorsement, or affiliation; or

(g) make a false or misleading representation with respect to the price of any

goods or services; or

(h) make a false or misleading representation concerning the need for any

goods or services; or

(i) make a false or misleading representation concerning the existence, exclusion, or effect of any condition, warranty, guarantee, right, or remedy, including (to avoid doubt) in relation to any guarantee, right, or remedy available under the Consumer Guarantees Act 1993; or

(j) make a false or misleading representation concerning the place of origin

of goods or services.

19 Bait advertising

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

(a) does not intend to offer for supply; or

(b) does not have reasonable grounds for believing can be supplied by that person—

at that price for a period that is, and in quantities that are, reasonable having regard to the nature of the market in which the person carries on business and the nature of the advertisement.

[…]

28B Disclosure of trader status on Internet

(1) This section applies when—

(a) goods or services are offered for sale to consumers on the Internet; and

(b) the offer is able to be accepted via the Internet.

(2) If the vendor of the goods or services is in trade, the person making the offer

must make it clear to potential purchasers that the vendor is a person in trade.

Offences

40 Contraventions of provisions of Parts 1 to 4A an offence

(1) Every person who contravenes a provision of Part 1 (except sections 9, 14(2), 23, or 24), Part 3, or Part 4 commits an offence and is liable on conviction,—

(a) in the case of an individual, to a fine not exceeding $200,000; and

(b) in the case of a body corporate, to a fine not exceeding $600,000.

41 Injunctions may be granted by court …..

(1) The court may, on the application of the Commission or any other person, grant an injunction restraining a person from engaging in conduct that constitutes or would constitute any of the following—

(a) a contravention of any of the provisions of Parts 1 to 4 :

[….]

42 Order to disclose information or publish advertisement

(1) Where, on the application of the Commission, the court is satisfied that a person has engaged in conduct constituting a contravention of any of the provisions of Parts 1 to 4 , the court may (whether or not that person has previously engaged in such conduct), make either or both of the following orders:

(a) an order requiring that person, or any other person involved in the contravention, to disclose, at that person's own expense, to the public, or to a particular person or to persons included in a particular class of persons, in such manner as is specified in the order, such information, or information of such a kind, as is so specified, being information that is in the possession of the person to whom the order is directed or to which that person has access:

(b)  an order requiring that person, or any other person involved in the contravention, to publish, at that person's own expense, in such manner and at such times as are specified in the order, corrective statements the terms of which are specified in, or are to be determined in accordance with, the order.

[…]

43 Other orders

(1) This section applies if, in proceedings under this Part or on the application of any person, a court or a Disputes Tribunal finds that a person (person A) has suffered, or is likely to suffer, loss or damage by conduct of another person (person B)…

[…]

(3) The orders are as follows:

(a) an order declaring all or part of a contract made between person A and person B, or a collateral arrangement (for example, a collateral credit agreement) relating to such a contract,—

(i)  to be void;

……

(c) an order in respect of a contract made between person A and person B, or a collateral arrangement (for example, a collateral credit agreement)

relating to such a contract,—

(i) varying the contract or the arrangement in the manner specified in the order; and

……

(e) an order directing person B to refund money or return property to person A:

(f) an order directing person B to pay to person A the amount of the loss or damage:

(g) an order directing person B, at person B’s own expense, to repair, or to

provide parts for, goods that have been supplied by person B to person

A:

44 Defences

(1) Subject to this section, it is a defence to a prosecution for an offence against

section 40 if the defendant proves—

(a) that the contravention was due to a reasonable mistake; or

[…]

(b) that the contravention was due to reasonable reliance on information

supplied by another person; or

(c) that—

(i) the contravention was due to the act or default of another person,

or to an accident or to some other cause beyond the defendant’s

control; and

(ii) the defendant took reasonable precautions and exercised due diligence to avoid the contravention.