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Commerce Act 1986

Enforcement, remedies, and appeals - Injunctions generally

89: Other orders

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"The court can make special orders to fix things when someone breaks the Commerce Act rules"

Illustration for Commerce Act 1986

If you are in a court case under the Commerce Act, the court can make orders against someone who has done something wrong. This can happen even if the court does not grant an injunction. The court can make orders against the person who did the wrong thing, or against someone who helped them. The wrong thing must have been done against the rules in Part 2 of the Act.

If someone has a contract that breaks the rules of the Commerce Act, the court can make some changes. The court can change the contract, cancel it, or make someone pay back money. The court can also make someone pay compensation to the other person involved in the contract.

The court can also make changes to a covenant, which is a type of promise, if it breaks the rules of the Act. The court can change the covenant or make someone pay back money.

Nothing in the rules about contracts can stop the court from making these orders. If a contract breaks the rules of the Act, some other rules about contracts do not apply.

If a contract has a part that breaks the rules, the rest of the contract is still valid. The court can make these orders if someone has broken the rules of the Act, including the rules in Part 4 of the Act.

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View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM89495.

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Part 6Enforcement, remedies, and appeals
Injunctions generally

89Other orders

  1. Where, in any proceedings under this Part, the court finds that a person who is a party to the proceedings has suffered, or is likely to suffer, loss or damage by conduct of another person that was engaged in in contravention of any of the provisions of Part 2, the court may, whether or not it grants an injunction or makes any other order under this Part, make such order or orders as it thinks appropriate against the person who engaged in the conduct, or any other person who in relation to the contravention did any act referred to in section 81(b) to (f).

  2. Where a contract is entered into in contravention of this Act, or as the case may be, a contract contains a provision which if given effect to would contravene this Act, the court may, in any proceedings under this Part, or on application made for the purpose by a party to the contract or any person claiming through or under any party to the contract, make an order—

  3. varying the contract, in such manner as it thinks fit, not being a manner inconsistent with the provisions of this Act:
    1. cancelling the contract:
      1. requiring any person who is a party to the contract to make restitution or pay compensation to any other person who is a party to the contract.

        1. Where a covenant is given in contravention of this Act, or as the case may be, the enforcement of the terms of a covenant would contravene this Act, the court may, in any proceedings under this Part, or on application made for the purpose by a party to the covenant or any person claiming through or under any such person, make an order—

        2. varying the covenant, in such manner as it thinks fit, not being a manner inconsistent with the provisions of this Act:
          1. requiring any party to the covenant to make restitution or pay compensation to any other person who, but for section 28(4) would be bound by or entitled to the benefit of the covenant.

            1. Nothing in subsection (2) or subsection (3) shall prevent any proceedings being instituted or commenced under this Part.

            2. Nothing in subpart 5 of Part 2 of the Contract and Commercial Law Act 2017 applies to any contract entered into in contravention of this Act or to any contract which contains a provision the giving effect to of which would constitute a contravention of this Act.

            3. Notwithstanding any enactment or rule of law, where a contract is entered into in contravention of this Act by reason that the contract contains a particular provision, or the contract contains a provision which if given effect to would contravene this Act, the enforceability of any other provision of the contract shall not be affected by the existence of that provision.

            4. In this section, a reference to a contravention of this Act includes a reference to contravening the requirements of any type of regulation under Part 4.

            Notes
            • Section 89(3): amended, on , by section 39 of the Commerce Amendment Act 2022 (2022 No 11).
            • Section 89(3)(b): amended, on , by section 39 of the Commerce Amendment Act 2022 (2022 No 11).
            • Section 89(5): amended, on , by section 347 of the Contract and Commercial Law Act 2017 (2017 No 5).
            • Section 89(7): added, on , by section 16 of the Commerce Amendment Act 2008 (2008 No 70).