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  • Trade Practices

The Trade Practices Act 1974 catches conduct and transactions which affect competition and prices, where there is substantial loss or damage, a substantial lessening of competition, affects trade or commerce, where there are contracts, arrangements or understandings which affect the supply or acquisition of goods or services as well as misuse of market power to name but a few. Given the reach of the Trade Practices Act a wide variety of businesses need to be mindful of its application in their commercial environment to ensure best business practice. If a prosecution is lodged or proceedings commenced, you need to seek legal advice to ensure that your interests are properly protected.

LAC Lawyers is able to assist clients as outlined and as follows:

  • Unconscionable Conduct
  • Consumer Protection ~ misleading or deceptive conduct
  • False or Misleading Representation
  • Advertising and Selling
  • Harassment and Coercion
  • Product Safety and Product Information including recall
  • Conditions and Warranties in Consumer Transactions
  • Actions against Manufacturers and Importers of Goods
  • Part VA ~ Products Liability
  • Enforcement and Remedies
  • Statutes of Limitation

As part of this landscape, agreements/contracts, disclosure, exclusion clauses, misuse of market power, product information, warnings and a raft of other matters including state legislation have to be considered to ensure that the client’s position is properly considered.

The Trade Practices Act (TPA) which is Commonwealth legislation and its NSW counterpart the Fair Trading Act (FTA) are used for the preservation and enhancement of competition amongst businesses and for the protection of the consumers from the businesses. Federal laws are enforced by the Australian Competition & Consumer Commission (ACCC) and the state laws are enforced by the NSW Office of Fair Trading (NSW OFT). These laws can also be used by businesses and consumers to obtain remedies against those who have infringed these laws.

These laws prohibit anti-competitive behaviours such as:

  • price fixing - where competitors agree to charge the same or similar price hence there is no actual or real price difference between the competing products.
  • market sharing - where the competitors agree to share the market on the basis of geography, revenue, customers and product.
  • boycotts - where the competitors agree not to acquire or refuse to supply goods or service to a business or consumer (primary) and where the competitors agree to prevent another from acquiring or refusing to supply goods or service to a third party (secondary).
  • misuse of market power - where a very large business uses its market power to the detriment of a smaller competitor.
  • exclusive dealing - where a supplier of goods or service prohibits the purchaser from dealing with the suppliers competitor including refusing to supply or re-supply.
  • resale price maintenance - where the suppliers set a price and prevent the business from selling at a different or discounted price.

These laws also protect consumers from behaviours such as:

  • misleading or deceptive conduct
  • misleading representations about the future supply of goods and services
  • false and misleading representations
  • false representations in relation to land
  • misleading conduct in relation to employment
  • not specifying the full cash price
  • falsely offering prizes
  • misleading the public as to the nature or characteristics of goods and services
  • bait advertising
  • referral selling
  • accepting payment without intending to supply
  • making false and misleading statements about work-at-home schemes
  • harassments or coercion
  • sending unsolicited debit or credit cards
  • demanding payment for unsolicited goods or services

The laws also govern whether the products are manufactured in Australia or imported from overseas and enforcement can include:

  • consumer product standards
  • warning notices in respect of defective product
  • voluntary product recall in respect of defective product
  • compulsory product recall in respect of defective product
  • emergency orders in respect of defective product

If you believe that you need more information regarding the above or you as a consumer or your business may be affected by anything mentioned above, please consult us.

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Trade Practices Articles

Tax Law - Advance pricing(Part 2)

Date: February 22, 2012
Author(s): LAC Lawyers
In part 1 of this article we saw that advance pricing arrangements (APAs) are a means by which the ATO seeks to kerb transfer pricing. This part of the article goes into more detail on the APA system.

Tax Law - Annual compliance arrangements(Part 2)

Date: February 22, 2012
Author(s): LAC Lawyers
Part 1 of this article set out the basics of what an annual compliance arrangement (ACA) is, and how to enter one. This part of the article will talk about what the arrangement involves during each year.

Tax Law - Value Shifting Essentials (Part 1)

Date: February 21, 2012
Author(s): Frank Egan B.A., LL.B., A.C.L.A., F.T.I.A. (Notary)
Value shifts happen when there is transaction between two parties and the value used for the transaction is not the market value of the asset(s). As a result, the value of an asset from one party is decreased while the value of the other is increased, creating an opportunity to artificially create losses or gains to be used for tax evasion purposes.

Tax Law - Value Shifting Essentials (Part 2)

Date: February 21, 2012
Author(s): Frank Egan B.A., LL.B., A.C.L.A., F.T.I.A. (Notary)
Indirect value shifting happens when two parties under the same ownership engage in a transaction.

Employment Law - Restraint of Trade - Cascading Clauses

Date: December 20, 2010
Author(s): LAC Lawyers
Restraint of trade has garnered an ever increasing amount of attention over the past few years as employers attempt to restrain former employees in their conduct after they leave their employ.

Intellectual Property - Trade Practices - The Law of Passing Off

Date: August 28, 2009
Author(s): LAC Lawyers
The principle behind the tort of “passing off” is that a person cannot represent their goods or services as those of another. The action for passing off protects business goodwill and reputation from wrongful appropriation.

Consumer Protection - Contract Review Act

Date: May 21, 2009
Author(s): LAC Lawyers
Often times consumers enter into contracts where the terms are not negotiable and are expected to just sign the bottom of the page and be on their merry way. Some of these contracts include mobile phone contracts, car hire contracts, pay television contracts, finance agreements, and even those little car parking tickets issued by the machines when you go into a shopping centre or car parking station.

Insolvent Trading and Director's Liability

Date: October 12, 2007
Author(s): LAC Lawyers
Directors may be liable, personally, under the Corporations Act, Trade Practices Act, and the OH & S Act, among other legislation. A Director may also be personally liable for non payment of taxes.

An Explanation of Some Areas of Risk for Director's

Date: June 24, 2007
Author(s): LAC Lawyers
If you (personally) breach the Act, both you and the organisation may be prosecuted. If convicted, both you and the organisation may have to pay significant penalties.

Employment Contracts and Restraint of Trade Clauses

Date: April 22, 2007
Author(s): LAC Lawyers
This paper explores restraint of trade and confidentiality agreements between employers and employees. It is common for employers to have a global restraint clause to restrain departing employees from working for a competitor and that may not be sufficient.

Trade Practices Law - Key Provisions that all businesses should be aware of!!!

Date: April 22, 2007
Author(s): LAC Lawyers
Key provisions of the Trade Practices Act that a business should be aware of in order to avoid a breach of the Act.

What to expect when you call LAC Lawyers

Date: December 13, 2006
Author(s): LAC Lawyers
LAC Lawyers is a full service firm dedicated to the provision of superior legal services in Australia. Our aim is to provide unrivalled client satisfaction coupled with high quality service and advice. When you call LAC Lawyers our friendly reception staff will spend time with you to identify the area of law your enquiry relates to then pass you on to one of our qualified solicitor's who can help you.

The Benefits of Hiring A Lawyer

Date: August 16, 2006
Author(s): LAC Lawyers
The old adage “you get what you pay for” is as true today as it has ever been.

Why stay with your lawyer

Date: August 01, 2006
Author(s): LAC Lawyers
The lawyer/client relationship is a personal one and there are many reasons which will dictate who you can and cannot work with. If you don’t like your lawyer, should you change? Ultimately, the relationship between a lawyer and client must be built on mutual trust.

Consumer Claims - What Are The Processes In The CTTT

Date: February 12, 2006
Author(s): LAC Lawyers

Consumer Claims - What Do I Need To Know About Them?

Date: February 12, 2006
Author(s): LAC Lawyers
The Consumer Claims Act (NSW) 1998 ("the Act") provides a cause of action, which is known as a consumer claim, to consumers together with a number of remedies. All consumer claims are based in contract, including an oral contract.

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