Gault on Commercial Law

Transcription

1 Gault on Commercial Law 30/6/14 Update Summary LEGISLATION CONSUMER GUARANTEES ACT 1993 The Act was amended, as from 17 June 2013, by the Consumer Guarantees Amendment Act 2013 as follows: Section 2(1) amended (definitions of goods, services, supplier, amended; line function services inserted), s 2(2) inserted, s 5A inserted, s 7 amended, ss 7A and B inserted, s 41(3) repealed, s 43 amended, s 46A inserted. FAIR TRADING ACT 1986 The Act was amended, as from 17 June 2013, by the Fair Trading Amendment Act 2013 as follows: Part 4A (consumer transactions and auctions) (ss 36A 36ZF) inserted: consists of subpart 1 (layby sales), subpart 2 (uninvited direct sales), subpart 3 (extended warranties), subpart 4 (auctions). Section 2(1): definitions of auction, consumer contract, standard form consumer contract, transparent, unfair contract term, uninvited direct sale agreement, unsolicited goods, unsolicited services inserted.

2 Bulletin 2 Gault on Commercial Law 30/6/14 Sections 5C and 5D inserted, new heading unsubstantiated representations and ss 12A 12D inserted, s 13(b), (i) and (j) amended, ss 21A 21D inserted, s 28B inserted, s 40 and heading amended, ss 40B 40H inserted, s 44(1)(ab) inserted. CREDIT CONTRACTS AND CONSUMER FINANCE AMENDMENT ACT 2014 This Act (2014 No 33), which originated from the Credit Contracts and Financial Services Law Reform Bill 2013 (104), received the royal assent on 6 June 2014 and amends the Credit Contracts and Consumer Finance Act However, many of its provision will not come into force until later and all must be in place by 6 June 2015 at the latest. Note that, among other things, the amendment Act inserts into the principal Act new Part 1A (lender responsibilities) and new Part 3A (repossession of goods under consumer contract) and that it also repeals the Credit (Repossession) Act FINANCIAL SERVICE PROVIDERS (REGISTRATION AND DISPUTE RESOLUTION) AMENDMENT ACT 2014 This Act (2014 No 34), which originated from the Credit Contracts and Financial Services Law Reform Bill 2013 (104), received the royal assent on 6 June 2014 and amends the Financial Service Providers (Registration and Dispute Resolution) Act However, many of its provision will not come into force until later and all must be in place by 6 June 2015 at the latest. CARRIAGE OF GOODS ACT 1979 Section 15(1) was amended, as from 17 June 2014, by s 4 of the Carriage of Goods Amendment Act ELECTRONIC TRANSACTIONS ACT 2002 Section 4 was amended and s 13A was inserted, as from 10 May 2014, by the Electronic Transactions (Contract Formation) Amendment Act PERSONAL PROPERTY SECURITIES ACT 1999 Section 167A(1)(b)(i) of the Personal Property Securities Act 1999 came into force, as from 14 April 2014, under cl 2 of the Personal Property Securities Amendment Act 2011 Commencement Order FAIR TRADING (UNINVITED DIRECT SALES FINANCIAL PRODUCTS) REGULATIONS 2014 These regulations come into force on 17 June 2014 and exempt certain classes of agreements for the issue or sale of financial products from the uninvited direct sales provisions in subpart 2 of Part 4A of the Fair Trading Act WEIGHTS AND MEASURES REGULATIONS 1999 The following amendments were made, as from 23 May 2014, by the Weights and Measures Amendment Regulations 2014:

3 30/6/14 Gault on Commercial Law Bulletin 3 Regulation 16 (definition of competent organisation ) amended, reg 86A and Schedule 4A inserted, reg 90 replaced, sch 5 amended. COMMENTARY COMMERCE ACT 1986 Commentary has been updated at the following locations: CA3.12, CA3.15(2)(b), CA52T.02, CA52T.02(5), CA52Z.01(2), CA52Z.02, CA80.03(21), CA80.10(3), CA80.10(5)(m), CA The following new paragraphs have been inserted: CA52A.01, CA82.03, CA The following cases were discussed in the above commentary: Wellington International Airport Ltd v Commerce Commission [2013] NZHC 3289: CA3.15(2)(b), CA52A.01, CA52T.02, CA52T.02(5). Commerce Commission v Carter Holt Harvey Ltd [2014] NZHC 531: CA80.03(21), CA80.10(3), CA80.10(5)(m). New Zealand Bloom Ltd v Cargolux Airlines International SA [2014] NZHC 536: CA INTRODUCTION TO CONSUMER LAW CREDIT CONTRACTS AND CONSUMER FINANCE This chapter has been updated at multiple locations and this has involved discussion of the following cases: King v Woods [2013] NZHC 3467: 4C.2.02(4). Commerce Commission v Sportzone Motorcycles Ltd (in liq) [2013] NZHC 2531: 4C.5, 4C.5.02(1)(a), 4C.5.02(1)(b). Krtolica v Westpac Banking Corp [2008] NZCCLR 24 (HC): 4C.7.01(5)(a), 4C.7.02(2)(c). Westpac New Zealand Ltd v Colley [2012] NZHC 1854: 4C.7.01(5)(a), 4C.7.03(1). Colley v Westpac New Zealand Ltd [2013] NZCA 57, (2013) 13 TCLR 639: 4C.7.01(5)(a), 4C.7.02(2)(c), 4C.7.03(1). Budget Loans Ltd v Robinson [2012] DCR 219: 4C.7.02(4)(e). Haddon v GE Custodians [2011] NZCA 335: 4C.7.02(4)(f). Haddon v GE Custodians [2011] NZSC 121: 4C.7.02(4)(f). O Keefe v Mairangi Properties Ltd [2013] NZHC 411: 4C.7.03(1). Toilolo v Westpac New Zealand Ltd [2013] NZHC 1517: 4C.7.03(1).

4 Bulletin 4 Gault on Commercial Law 30/6/14 Mitchell v Trustees Executors Ltd [2011] NZCA 519, (2011) 12 NZCPR 659: 4C.7.03(3)(a). Bank of New Zealand v Keane [2012] NZHC 214: 4C.7.03(3)(a). INTRODUCTION TO PERSONAL PROPERTY SECURITIES This chapter has been updated at multiple locations and this has involved discussion of the following cases: Re Maiden Civil (P&E) Pty Ltd; Albarran v Queensland Excavation Services Pty Ltd [2013] NSWSC 852, (2013) 277 FLR 337: 8A.2, 8A.2.13(2), 8A.3.01(3)(b), 8A.3.01(3)(c). Mew v Tristmire Ltd [2011] EWCA Civ 912, [2012] 1 WLR 852: 8A.2.02(5)(c). March Construction Ltd v Queenstown Carparking Ltd (2011) 12 NZCPR 75 (HC): 8A.2.02(5)(d). Triumph Motorcycles (NZ) Ltd v Keogh [2010] DCR 824: 8A Gibbston Downs Wines Ltd v Perpetual Trust Ltd [2013] NZCA 506: 8A.4.01, 8A.4.06(1), 8A.7.05(1)(d). Bank of Nova Scotia v IPS Invoice Payment System Corp (2010) 318 DLR (4th) 751, 101 OR (3d) 352, 17 PPSAC (3d) 99: 8A.4.04(1). Swindle v Matakana Estate Ltd (in liq) [2012] 1 NZLR 806, [2012] NZCCLR 4 (HC): 8A.4.09, 8A.4.11(2)(b). Comptroller of Customs v Terminals (NZ) Ltd [2012] NZCA 598, [2012] 2 NZLR 137: 8A.4.09(1). Wellington City Council v Attorney-General [1990] 2 NZLR 281 (CA): 8A.4.09(1). Federal Commissioner of Taxation v Jack Zinader Pty Ltd (1949) 78 CLR 336: 8A.4.09(1). Coleborn (T) & Sons Ltd v Blond [1951] 1 KB 43 (CA): 8A.4.09(1). XXX v Commissioner of Inland Revenue [2013] NZTRA 4, (2013) 26 NZTC 2-003: 8A.4.09(1). McCloy v Manukau Institute of Technology [2013] NZHC 936, [2013] 3 NZLR 390: 8A.4.11(2)(b). Bank of New Zealand v Waewaepa Station 2002 Ltd [2013] NZHC 3321: 8A.4.11(2)(b). Carey v Smith [2013] NZHC 2291, (2013) 10 NZBLC : 8A.4.11(2)(b). Budget Loans Ltd v Robinson [2012] DCR 219: 8A.6.02(3)(a). Robinson v Budget Loans Ltd [2012] NZHC 1206: 8A.6.02(3)(a).

5 30/6/14 Gault on Commercial Law Bulletin 5 Polymers International Ltd v Toon [2013] NZHC 1897, (2013) 10 NZBLC : 8A.7.03(1)(b), 8A.7.03(2). INTRODUCTION TO THE SALE OF GOODS Commentary has been updated at the following locations: 3A.3.04(3), 3A.6, 3A.6.05(3)(a), 3A.6.06, 3A.7.02(6)(b), 3A.7.03(1)(c). The following new paragraph has been inserted: 3A The following cases were discussed in the above commentary: Russo v Belcar Pty Ltd [2011] SASCFC 151, (2011) 111 SASR 459: 3A.3.04(3). Wallis, Son & Wells v Pratt & Haynes [1911] AC 394 (HL): 3A Baldry v Marshall [1925] 1 KB 260 (CA): 3A DHL International (NZ) Ltd v Richmond Ltd [1993] 3 NZLR 10 (CA): 3A Dairy Containers Ltd v Tasman Orient Line CV [2004] UKPC 22, [2005] 1 NZLR 433: 3A i-health Ltd v isoft NZ Ltd [2011] NZCA 575, [2012] 1 NZLR 379: 3A Whitecap Leisure Ltd v John H Rundle Ltd [2008] EWCA Civ 429, [2008] 2 Lloyd's Rep 216: 3A Stocznia Gdynia SA v Gearbulk Holdings Ltd [2009] EWCA Civ 75, [2010] QB 27: 3A Herbert Construction Co Ltd v Carter Holt Harvey Ltd [2013] NZHC 780: 3A.6.05(3)(a), 3A The Mercini Lady [2010] EWCA Civ 1145, [2011] 2 All ER (Comm) 522: 3A Victorian Alps Wine Co Pty Ltd v All Saints Estate Pty Ltd [2012] VSCA 81, (2012) 34 VR 397: 3A Air Transworld Ltd v Bombardier Inc [2012] EWHC 243 (Comm), [2012] 1 Lloyd s Rep 349 (QB): 3A Dalmare SpA v Union Maritime Ltd [2012] EWHC 3537 (Comm), [2013] 2 All ER 870 (QB): 3A Great Elephant Corp v Trafigura Beheer BV [2012] EWHC 1745 (Comm), [2012] Lloyd s Rep 503 (QB): 3A Fakir Halal Donners v Taylor Preston Ltd [2011] NZCCLR 17 (HC): 3A Caterpillar NI Ltd v John Holt & Co (Liverpool) Ltd [2013] EWCA Civ 1232, [2014] 1 All ER 785: 3A.7.02(6)(b). Clark v Macourt [2013] HCA 56, (2013) 88 ALJR 190: 3A.7.03(1)(c).

6 Bulletin 6 Gault on Commercial Law 30/6/14 Flame SA v Glory Wealth Shipping PTE Ltd [2013] EWHC 3153 (Comm), [2013] 2 Lloyd s Rep 653 (QB): 3A.7.03(1)(c). INTRODUCTION TO CONSUMER LAW FAIR TRADING This discursive chapter has been updated to reflect changes effected by the Fair Trading Amendment Act Accordingly, the following paragraphs have been updated: 4B.1, 4B.2.01, 4B.2.02, 4B.2.03, 4B.4.01(1), 4B.4.01(2), 4B.4.02, 4B.5.01(1)(d), 4B.5.02(2)(a), 4B.5.02(2)(f), 4B FAIR TRADING ACT 1986 Commentary has been updated at the following locations: FT31.01(e), FT32.01, FT , FT39.01, FT43.07, FT The following new paragraphs have been inserted: FT14A (relating to vendor bids at auctions), FT31.02, FT31A.01, FT33A.01, FT33C.01, FT33D.01, FT37.02, FT43.01A, FT43A.01 (although note that this is the commentary that previously appeared at FT43.06), FT46A.01, FT46B.01, FT47G.02, FT48P.01 02, FT48S.01. The following case was discussed in the above commentary: Commerce Commission v Grenadier Real Estate Ltd [2004] 2 NZLR 186, (2003) 10 TCLR 854 (CA): FT14A.04, FT14A.06, FT14A.07. SUGGESTIONS WELCOME Thomson Reuters welcomes your comments on this publication and any suggestions you may have for improving this service. Please contact Roger Thornton, the portfolio editor, dial , or roger.thornton@thomsonreuters.com.