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individual trading through a company to stress his or her competence as part of
promotion for the company. 145
9.6 Liability under the Fair Trading Act 1986
In New Zealand, a claimant has the right to action for misleading and deceptive
conduct 146 under the Fair Trading Act 1986. The courts have indicated willingness in
this instance in addition to the corporation‟s liability, to impose on directors and
agents‟ personal liability for breaches of the section. In Kinsman v Cornfield Ltd, 147
the Court of Appeal based its decision on the interpretations of the words „in
trade‟ 148 in section 9 as well as „also‟ in section 45(2) 149 of the Act. The court had
included corporate agents in management roles within the meaning of in trade. 150 In
Body Corporate, the court held a person who is not trading on his or her own account
can be personally liable under the Act. The conclusion is made based on the
inclusion of the words such as 'profession' and 'occupation' within the definition of
145 Body Corporate 202254 v Taylor [2009] 2 NZLR 17 at [43].
146 Section 9 of the New Zealand Fair Trading Act 1986 says “No person shall in trade, engage in
conduct that is misleading or deceptive or is likely to mislead or deceive.”
147 (2001) 10 TCLR 342.
148 “Trade” is defined in section 2 of the Act as “any trade, business, industry, profession, occupation,
activity of commerce, or undertaking relating to the supply or acquisition of goods or services or to
the disposition or acquisition of any interest in land.”
149 Section 45(2) of the New Zealand Fair Trading Act 1986 states “any conduct engaged in on behalf
of the body corporate:
(a) by a directors, servant, or agent of the body corporate acting within the scope of that person‟s
actual or apparent authority;
(b) by any other person at the direction or with the consent or agreement (whether express or
implied) of a director, servant, or agent of the body corporate, given within the scope of the
actual apparent authority of the director, servant or agent-
shall be deemed, for the purpose of the Act, to have been engaged in also by the body corporate.”
(emphasis added).
150 See also Specialised Livestock Imports Ltd v Borrie CA 72/01, 28 March 2002; Goldbro v Walker
[1993] 1 NZLR 394; contrast the position in Australia where the courts applied a narrow
interpretation - see Concrete Constructions Pty Ltd v Nelson (1990) 169 CLR 594, 603; Plimer v
Roberts (1997) 80 FCR 303.
219