Plain language law

New Zealand law explained for everyone

Fair Trading Act 1986

Enforcement and remedies - Civil proceedings

44: Defences

You could also call this:

“Ways you can defend yourself if someone says you broke the Fair Trading Act”

If you’re accused of breaking the Fair Trading Act, you can defend yourself in several ways:

You can say it was a reasonable mistake. For example, if you accidentally gave wrong information because you misunderstood something.

You can say you believed you had the right to ask for payment. This only applies to certain parts of the law.

You can say you relied on information from someone else. But this can’t be someone who works for you or, if you’re a company, one of your directors or employees.

You can say it wasn’t your fault because someone else did it, or it was an accident, or something you couldn’t control. You also need to show you tried hard to stop it from happening.

If you’re accused because of an advertisement, you can defend yourself if you’re in the business of publishing ads and you didn’t know the ad broke the law.

If you’re accused of breaking rules about product information, you can defend yourself if you bought the product from a New Zealand supplier to resell, and you didn’t know and couldn’t have known it didn’t follow the rules.

There are also special defences if you’re accused of ignoring a request not to visit someone’s home to sell things.

Remember, for some of these defences, you need to tell the court about them at least 7 days before your hearing starts.

This text is automatically generated. It might be out of date or be missing some parts. Find out more about how we do this.

View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM97313.

Topics:
Business > Fair trading
Money and consumer rights > Consumer protection
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Part 5 Enforcement and remedies
Civil proceedings

44Defences

  1. Subject to this section, it is a defence to a prosecution for an offence against section 40 if the defendant proves—

  2. that the contravention was due to a reasonable mistake; or
    1. that, in the case of an offence under section 40(1) in relation to a contravention of section 21C(1), the defendant reasonably believed that there was a right to payment or other consideration; or
      1. that the contravention was due to reasonable reliance on information supplied by another person; or
        1. that—
          1. the contravention was due to the act or default of another person, or to an accident or to some other cause beyond the defendant's control; and
            1. the defendant took reasonable precautions and exercised due diligence to avoid the contravention.

            2. For the purposes of subsection (1)(b) and (c), the term another person does not include—

            3. a servant or agent of the defendant; or
              1. where the defendant is a body corporate, a director, servant or agent of the defendant.

                1. A defendant is not, without the leave of the District Court, entitled to rely on the defence provided by subsection (1)(b) that the contravention was due to reasonable reliance on information supplied by another person, or by subsection (1)(c)(i) that the contravention was due to the act or default of another person, unless the defendant has, not later than 7 days before the date on which the hearing of the proceedings commences, served on the prosecutor a notice in writing identifying that person.

                2. It is a defence to a prosecution for an offence against section 40, or to any other proceedings under this Part, in relation to a contravention of a provision of this Act committed by the publication of an advertisement, if the defendant proves—

                3. that the defendant's business is publishing or arranging for the publication of advertisements; and
                  1. that the defendant received the advertisement, or the information contained in the advertisement, as the case may be, in the ordinary course of that business and did not know and had no reason to suspect that the publication of the advertisement or the publication of the advertisement containing that information, as the case may be, would constitute a contravention of the provision.

                    1. Subject to subsection (6), it is a defence to a prosecution for an offence against section 40, or to any other proceedings under this Part, in relation to a contravention of section 28, if the defendant proves—

                    2. that the goods to which the proceedings relate were acquired by the defendant for the purpose of resupply from a person (not being an agent of a person outside New Zealand) who carried on in New Zealand the business of supplying such goods; and
                      1. that the defendant did not know, and could not with reasonable diligence have ascertained, that the goods did not comply with the consumer information standard or that the defendant had not complied with that standard in relation to the goods, as the case may be, or that the defendant relied in good faith on a representation by the person from whom the defendant acquired the goods that a consumer information standard had not been prescribed for those goods.

                        1. A defendant is not, without the leave of the District Court, entitled to rely on any defence provided by subsection (5) unless the defendant has, not later than 7 days before the date on which the hearing of the proceedings commences, served, in the case of proceedings for an offence, on the prosecutor, and in the case of any other proceedings, on the person commencing those proceedings, a notice in writing identifying the person by whom the goods were supplied.

                        2. It is a defence to a prosecution of an offence under section 40, or to any other proceedings under this Part, in relation to a contravention of section 36RA, if the defendant proves that—

                        3. the person who gave the direction under section 36RA(2) or (3), or with whose actual or apparent authority it was given, no longer resided at the premises at the time of the contravening conduct; or
                          1. the contravening conduct was with the permission (given after the direction under section 36RA(2) or (3) but before the conduct) of someone who—
                            1. resided at the premises; or
                              1. was acting with the actual or apparent authority of someone residing at the premises.

                              Notes
                              • Section 44(1)(ab): inserted, on , by section 33 of the Fair Trading Amendment Act 2013 (2013 No 143).
                              • Section 44(3): amended, on , by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
                              • Section 44(5): amended, on , by section 12 of the Fair Trading Amendment Act 2003 (2003 No 31).
                              • Section 44(6): amended, on , by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
                              • Section 44(7): inserted, on , by section 12 of the Fair Trading Amendment Act 2021 (2021 No 32).