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Fair Trading Act 1986

Enforcement and remedies - Declaration of unfair contract terms

46H: Application by Commission for declaration of unfair contract term

You could also call this:

“The Commerce Commission can ask a court to decide if a contract term is unfair”

The Commerce Commission can ask the High Court or the District Court to declare that a term in a standard form contract is unfair. This applies to contracts for consumers and small businesses. The Commission gets to choose which court to ask.

If you are part of a contract, you can ask the Commerce Commission to go to court about a term you think is unfair. The Commission can then decide whether to ask the court to declare the term unfair.

The court will look at the term and decide if it’s unfair based on the rules in section 46I 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=DLM6410737.

Topics:
Business > Fair trading
Money and consumer rights > Consumer protection
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46G: Seeking leave of court, or

“Asking the court's permission to do something special”

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46I: Declaration of unfair contract terms, or

“Courts can decide if some contract terms are not fair for customers or small businesses”

Part 5 Enforcement and remedies
Declaration of unfair contract terms

46HApplication by Commission for declaration of unfair contract term

  1. The Commission may apply to the High Court or the District Court (at the choice of the Commission) for a declaration under section 46I that a term in a standard form consumer contract or standard form small trade contract is an unfair contract term.

  2. Any person may ask the Commission to apply to a court for a declaration under section 46I in relation to a contract to which the person is a party.

Notes
  • Section 46H: inserted, on , by section 36 of the Fair Trading Amendment Act 2013 (2013 No 143).
  • Section 46H(1): amended, on , by section 15 of the Fair Trading Amendment Act 2021 (2021 No 32).
  • Section 46H(1): amended, on , by section 261 of the District Court Act 2016 (2016 No 49).