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Commerce Act 1986

Restrictive trade practices - Resale price maintenance

42: Special evidentiary provisions in respect of certain resale price maintenance practices

You could also call this:

"Rules for proving a supplier fixed prices unfairly"

Illustration for Commerce Act 1986

If you are taking a supplier to court for not letting someone sell their goods at a certain price, you need to prove some things. You need to show that the supplier did something like what is described in section 40, and that they used to sell those goods to the person who is taking them to court, or to someone who has a similar business. You also need to show that the supplier knew about a reason why they might not want to sell the goods at that price, as described in section 37(3)(d) or (e), in the six months before they stopped selling. If you can show all these things, it will be assumed that the supplier stopped selling because of that reason, unless someone can prove otherwise.

If a supplier makes rules about when or how someone pays them, or asks for security to make sure they get paid, this law does not apply to those rules. The supplier can still make those rules, even if they are not the same for everyone.

When a supplier is taken to court for not letting someone sell their goods, the court will look at what the supplier did and why they did it, based on what is said in section 37(3)(d) or (e) and section 40.

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View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM88404.

Topics:
Business > Fair tradingMoney and consumer rights > Consumer protection
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Part 2Restrictive trade practices
Resale price maintenance

42Special evidentiary provisions in respect of certain resale price maintenance practices

  1. Where, in proceedings under this Act against a supplier for a contravention of section 37(3)(d) or section 37(3)(e) it is proved that—

  2. the supplier has acted in a manner referred to in section 40; and
    1. during a period ending immediately before the supplier so acted, the supplier had been supplying goods of the kind withheld either to—
      1. the person in respect of whom the contravention is alleged; or
        1. a person carrying on a similar business to that person; and
        2. during a period of 6 months immediately before the supplier so acted, the supplier became aware of a matter or circumstance capable of constituting a reason referred to in section 37(3)(d) or (e),—
            1. it shall be presumed, in the absence of evidence to the contrary, that the supplier so acted on account of that matter.

          1. Nothing in subsection (1) applies in respect of terms imposed by a supplier that are disadvantageous or treatment that is less favourable than the supplier accords other persons if the terms or treatment consists only of a requirement by the supplier as to the time at which, or the form in which, payment was to be made or as to the giving of security to secure payment.

          Notes
          • Section 42(1)(c): amended, on , by section 32(2)(d) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).