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Trade Practices Amendment Act (No. 2) 1977

Authoritative Version
  • - C2004A01789
  • In force - Latest Version
Act No. 151 of 1977 as made
An Act relating to Trade Practices.
Administered by: Treasury
Date of Assent 10 Nov 1977

TRADE PRACTICES AMENDMENT ACT (No. 2) 1977

No. 151 of 1977

An Act relating to Trade Practices.

BE IT ENACTED by the Queen, and the Senate and House of Representatives of the Commonwealth of Australia, as follows:

Short title, &c.

1. (1) This Act may be cited as the Trade Practices Amendment Act (No. 2) 1977.

(2) The Trade Practices Act 1974 is in this Act referred to as the Principal Act.

Commencement

2. This Act shall come into operation on the day on which it receives the Royal Assent.

Consumers

3. Section 4b of the Principal Act is amended—

(a) by omitting from sub-paragraph (i) of paragraph (a), and from sub-paragraph (i) of paragraph (b), of sub-section (1) “the price paid or payable by the person for” and substituting “the price of”; and

(b) by omitting paragraphs (b) and (c) of sub-section (2) and substituting the following paragraphs:

“(b) subject to paragraph (c), the price of goods or services purchased by a person shall be taken to have been the amount paid or payable by the person for the goods or services;

“(c) where a person purchased goods or services together with other property or services, or with both other property and services, and a specified price was not allocated to the goods or services in the contract under which they were purchased, the price of the goods or services shall be taken to have been—

(i) the price at which, at the time of the acquisition, the person could have purchased from the supplier the goods or services without the other property or services;

(ii) if, at the time of the acquisition, the goods or services were not available for purchase from the supplier except together with the other property or services but, at that time, goods or services of the kind acquired were available for purchase from another supplier without other property or services—the lowest price at which the person could, at that time, reasonably have purchased goods or services of that kind from another supplier; or

(iii) if, at the time of the acquisition, goods or services of the kind acquired 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;

“(d) where a person acquired goods or services otherwise than by way of purchase, the price of the goods or services shall be taken to have been—

(i) the price at which, at the time of the acquisition, the person could have purchased the goods or services from the supplier;

(ii) if, at the time of the acquisition, the goods or services were not available for purchase from the supplier or were so available only together with other property or services but, at that time, goods or services of the kind acquired were available for purchase from another supplier—the lowest price at which the person could, at that time, reasonably have purchased goods or services of that kind from another supplier; or


 

(iii) if goods or services of the kind acquired were not available, at the time of the acquisition, for purchase from any supplier or were not so available except together with other property or services— the value of the goods or services at that time; and

“(e) without limiting by implication the meaning of the expression ‘services’ in sub-section 4(1), the obtaining of credit by a person in connexion with the acquisition of goods or services by him shall be deemed to be the acquisition by him of a service and any amount by which the amount paid or payable by him for the goods or services is increased by reason of his so obtaining credit shall be deemed to be paid or payable by him for that service.”.

4. After section 63 of the Principal Act the following section is inserted:

Power of Minister to declare product safety or information standards

“63aa. (1) The Minister may, by notice under his hand published in the Gazette, declare that, in respect of goods of a kind specified in the notice, a particular standard, or a particular part of a standard, prepared or approved by the Standards Association of Australia or by a prescribed association or body, or such a standard or part of a standard with additions or variations specified in the notice, is a consumer product safety standard for the purposes of section 62 or a consumer product information standard for the purposes of section 63.

“(2) Where a notice is so published, the standard, or the part of the standard, referred to in the notice, or the standard or part of a standard so referred to with additions or variations specified in the notice, as the case may be, shall be deemed to be a prescribed consumer product safety standard for the purposes of section 62 or a prescribed consumer product information standard for the purposes of section 63, as the case may be.

“(3) Sub-section (1) does not authorize the publication of a notice in relation to goods of a particular kind if the standard or the part of the standard referred to in the notice, or the standard or the part of the standard so referred to with additions and variations specified in the notice, is inconsistent with a standard prescribed in relation to goods of that kind by regulations made for the purposes of section 62 or 63.”.

 

 

5. After section 68 of the Principal Act the following section is inserted:

Limitation of liability for breach of certain conditions or warranties

“68a. (1) Subject to this section, a term of a contract for the supply by a corporation of goods or services other than goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption is not void under section 68 by reason only that the term limits the liability of the corporation for a breach of a condition or warranty (other than a condition or warranty implied by section 69) 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 acquiring equivalent goods;

(iv) the payment of the cost of having the goods repaired; or (b) in the case of services—

(b) in the case of services—

(i) the supplying 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 if the person to whom the goods or services were supplied establishes that it is not fair or reasonable for the corporation to rely on that term of the contract.

 


 

“(3) In determining for the purposes of sub-section (2) whether or not reliance on a term of a contract is fair or reasonable, a court shall have regard to all the circumstances of the case and in particular to the following matters:

(a) the strength of the bargaining positions of the corporation and the person to whom the goods or services were supplied (in this sub-section referred to as ‘the buyer’) relative to each other, taking into account, among other things, the availability of equivalent goods or services and suitable alternative sources of supply;

(b) whether the buyer received an inducement to agree to the term or, in agreeing to the term, had an opportunity of acquiring the goods or services or equivalent goods or services from any source of supply under a contract that did not include that term;

(c) whether the buyer knew or ought reasonably to have known of the existence and extent of the term (having regard, among other things, to any custom of the trade and any previous course of dealing between the parties); and

(d) in the case of the supply of goods, whether the goods were manufactured, processed or adapted to the special order of the buyer.”.

Application

6. The amendments made by sections 3 and 5 apply only in relation to contracts made after the commencement of this Act.