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Fair Trading Act 1986

Unfair conduct - Unsubstantiated representations

12B: Court must have regard to certain matters

You could also call this:

“The court considers all the details when someone makes a claim without proof”

When a court is dealing with a case about unsubstantiated representations under section 12A, it needs to consider all the circumstances to decide if someone had good reasons for making a claim. Here’s what the court will look at:

The court will think about what kind of goods, services, or land the claim was about. They’ll also consider what type of claim it was, such as whether it was about quality or quantity.

The court will look at any research or other work the person did before making the claim. They’ll also consider what kind of information the person used and where they got it from.

The court will check if the person followed any rules or guidelines about making claims, and what those rules said. They’ll also think about how the claim might have affected people, or how it actually did affect them.

Remember, this list doesn’t limit what the court can consider under section 44 of the Fair Trading 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=DLM6156608.

Topics:
Business > Fair trading
Money and consumer rights > Consumer protection
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12A: Unsubstantiated representations, or

“Don't make claims about things you're selling without proof”

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12C: Limitation on commencement of proceedings in relation to unsubstantiated representations, or

“Only the Commerce Commission can take legal action for claims made without proof”

Part 1 Unfair conduct
Unsubstantiated representations

12BCourt must have regard to certain matters

  1. In proceedings concerning a contravention of section 12A, and in assessing whether a person had reasonable grounds for a representation, a court must have regard to all of the circumstances, including—

  2. the nature of the goods, services, or interest in land in respect of which the representation was made:
    1. the nature of the representation (for example, whether it was a representation about quality or quantity):
      1. any research or other steps taken by or on behalf of the person before the person made the representation:
        1. the nature and source of any information that the person relied on to make the representation:
          1. the extent to which the person making the representation complied with the requirements of any standards, codes, or practices relating to the grounds on which such a representation may be made, and the nature of those requirements:
            1. the actual or potential effects of the representation on any person.

              1. Subsection (1) does not limit section 44.

              Notes
              • Section 12B: inserted, on , by section 10 of the Fair Trading Amendment Act 2013 (2013 No 143).