This Act may be cited as the Fair Trading Act 1986.
(2)
Except as provided in section 49(3) of this Act, this Act shall come into force on the 1st day of March 1987.
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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
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:
Commission means the Commerce Commission established by section 8 of the Commerce Act 1986
“Commission”: this definition was amended, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115) by omitting the words “; and includes a Division of the Commission, or a member of the Commission, performing any function of the Commission”.
Court means the High Court of New Zealand
Credit instrument means any agreement (whether in writing or not) acknowledging an obligation to pay a sum or sums of money on demand or at any future time or times
Document means a document in any form whether signed or initialled or otherwise authenticated by its maker or not; and includes—
(a)
Any writing on any material:
(b)
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:
(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 one or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced:
goods —
(a)
means personal property of every kind (whether tangible or intangible); and
(b)
includes—
(i)
ships, aircraft, and vehicles:
(ii)
animals, including fish:
(iii)
minerals, trees, and crops, whether on, under, or attached to land or not:
(iv)
gas and electricity:
(v)
to avoid doubt, water and computer software.
goods: this definition was substituted, as from 8 July 2003, by section 3(1) Fair Trading Amendment Act (No 2) 2003 (2003 No 34).
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
Officer of the Commission
[Repealed]
“Officer of the Commission”: this definition was repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
Official standard means—
(a)
A New Zealand Standard within the meaning of section 2 of the Standards Act 1988; or
(b)
A standard specification prescribed by a body, organisation, or association having or performing similar functions to those of the Standards Council within the meaning of section 2 of the Standards Act 1988:
Official standard: this definition was inserted, as from 28 July 1997, by section 2 Fair Trading Amendment Act 1997 (1997 No 43).
Person includes a local authority, and any association of persons whether incorporated or not
Place includes any premises, building, aircraft, ship, carriage, vehicle, box, or receptacle
Place: this definition was inserted, as from 1 July 1990, by section 2 Fair Trading Amendment Act 1990 (1990 No 42).
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
services: paragraph (a)(iv) of this definition was inserted, as from 8 July 2003, by section 3(2) Fair Trading Amendment Act (No 2) 2003 (2003 No 34).
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
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.
(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.
This Act extends to the engaging in conduct outside New Zealand by any person resident or carrying on business in New Zealand to the extent that such conduct relates to the supply of goods or services, or the granting of interests in land, within New Zealand.
(2)
See section 51 for the application of this Act in relation to an international trade instrument.
Section 3(2): added, on 1 October 2008, by section 5 of the Fair Trading Amendment Act 2008 (2008 No 52).
4-
Application of Act to the Crown
(1)
Subject to this section, this Act shall bind the Crown in so far as the Crown engages in trade.
(2)
The Crown shall not be liable to be prosecuted for an offence against this Act but in any case where it is alleged that the Crown has contravened any provision of this Act and that contravention constitutes an offence, the Commission or the person directly affected by the contravention may apply to the Court for a declaration that the Crown has contravened that provision; and, if the Court is satisfied beyond a reasonable doubt that the Crown has contravened that provision, it may make a declaration accordingly.
Compare: 1975 No 113 s 20B; 1979 No 140 s 12; Trade Practices Act 1974 (Aust), s 2A
5-
Application of Act to Crown corporations
(1)
This Act applies to every body corporate that is an instrument of the Crown in respect of the Government of New Zealand engaged in trade.
(2)
Notwithstanding any enactment or rule of law, proceedings under Part 5 of this Act may be brought against a body corporate referred to in subsection (1) of this section.
Compare: 1975 No 113 s 20A; 1979 No 140 s 11
5A
No liability under Act if not liable under Securities Act 1978 or Securities Markets Act 1988
A court hearing a proceeding brought against a person under this Act must not find that person liable for conduct—
(a)
that is regulated by the Securities Act 1978 if that person would not be liable for that conduct under that Act:
(b)
that is regulated by the Securities Markets Act 1988 if that person would not be liable for that conduct under that Act.
Section 5A: inserted, on 29 February 2008, by section 4 of the Fair Trading Amendment Act 2006 (2006 No 49).
5B
Act does not apply to certain conduct regulated by takeovers code
Nothing in this Act applies to conduct in relation to any transaction or event regulated by the takeovers code that is in force under the Takeovers Act 1993 or incidental or preliminary to a transaction or event that is or is likely to be regulated by that code.
Section 5B: inserted, on 29 February 2008, by section 4 of the Fair Trading Amendment Act 2006 (2006 No 49).
6-
Functions of Commission in relation to dissemination of information
In addition to the functions conferred on the Commission by this Act, the Commission shall—
(a)
Make available or co-operate in making available—
(i)
For the guidance of persons engaged in trade, and other interested persons, general information with respect to their rights and obligations under this Act; and
(ii)
For the guidance of consumers, general information with respect to the rights and obligations of persons under this Act affecting the interests of consumers; and
(b)
Undertake studies and publish reports and information regarding matters affecting the interests of consumers; and
(c)
Co-operate with and assist any association or body of persons in developing and promoting the observance of standards of conduct for the purpose of ensuring compliance with the provisions of this Act.
Compare: Trade Practices Act 1974 (Aust), s 28(1)(a), (d), (e)
7-
Money to be appropriated by Parliament for purposes of this Act
[Repealed]
Sections 7 and 8 were repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
8-
Annual report
[Repealed]
Sections 7 and 8 were repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
Misleading and deceptive conduct, false representations, and unfair practices
Misleading and deceptive conduct
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.
Compare: Trade Practices Act 1974 (Aust), s 52
10-
Misleading conduct in relation to goods
No person shall, in trade, engage in conduct that is liable to mislead the public as to the nature, manufacturing process, characteristics, suitability for a purpose, or quantity of goods.
Compare: Trade Practices Act 1974 (Aust), s 55
11-
Misleading conduct in relation to services
No person shall, in trade, engage in conduct that is liable to mislead the public as to the nature, characteristics, suitability for a purpose, or quantity of services.
Compare: Trade Practices Act 1974 (Aust), s 55A
12-
Misleading conduct in relation to employment
No person shall, in relation to employment that is, or is to be, or may be offered by that person or any other person, engage in conduct that is misleading or deceptive, or is likely to mislead or deceive, as to the availability, nature, terms or conditions, or any other matter relating to that employment.
Compare: Trade Practices Act 1974 (Aust), s 53B
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
(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; or
(j)
Make a false or misleading representation concerning the place of origin of goods.
Compare: Trade Practices Act 1974 (Aust), s 53
Section 13 was amended, as from 15 November 2000, by section 3(a) Fair Trading Amendment Act 2000 (2000 No 64) by substituting the words “make a false or misleading representation” for the words “Falsely represent” wherever they occur.
Section 13 heading was amended, as from 15 November, by section 3(b) Fair Trading Amendment Act 2000 (2000 No 64) by inserting the words “or misleading” after the word “False”.
