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„trade‟. 151 With regard to the word „also‟ in section 45 which deemed an act of an
agent to be that of the company, the court held it indicated that both will have to be
liable regardless of whether intention and knowledge are present. 152
In Australia, section 52 of the Trade Practices Act 1974 on which New Zealand
section 9 of the New Zealand is based, only provides for liability on the corporation.
Directors will be held liable for the act only if he or she has aided, abetted,
counselled or procured the contravention. 153 The corresponding section in New
Zealand is section 43 which imposes secondary liability only when agents know the
conduct is misleading or deceptive. In order for agents to be liable under the
sections, both the Australian and the New Zealand courts require intention and
knowledge. 154 Directors will be able to avoid liability under the section if he or she is
merely a conduit and is not the source of the information. 155
The decision in Kinsman v Cornfield Ltd 156 had been subjected to criticism because
it does not provide any consideration on the common law principle of separate legal
entity. The reliance on the word „also‟ is seen as a weak argument and inconsistent
with section 43 which requires intention and knowledge on part of directors before
151 [2009] 2 NZLR 17 at [71].
152 [2009] 2 NZLR 17 at [71].
153 See section 75B(1) of the Australian Trade Practices Act 1974: “A reference in this Part to a
person involved in a contravention of a provision of part IV or V shall be read as a reference to a
person who:
(a) has aided, abetted, counseled or procured the contravention;
(b) has induced, whether by threats or promises or otherwise, the contravention;
(c) has been in any way, directly or indirectly, knowingly concerned in, or a party to, the
contravention; or
(d) has conspired with others to effect the contravention.”
154 Yorke v Lucas (1985) 158 CLR 661; Wheeler Grace & Pirucci Pty Ltd v Wright (1989) 15
NSWLR 679.
155 Goldbro v Walker [1993] 1 NZLR 394; Body Corporate 202254 v Taylor [2009] 2 NZLR 17.
156 (2001) 10 TCLR 342.
220