Section 158 — Competition and Consumer Act 2010: Wrongly accepting payment

(1) A person commits an offence if: (a) the person, in trade or commerce, accepts payment or other consideration for goods or services; and (b) at the time of the acceptance, the person intends not to supply the goods or services. (2) Strict liability applies to subsection (1)(a). (3) A person commits an offence if: (a) the person, in trade or commerce, accepts payment or other consideration for goods or services; and (b) at the time of the acceptance, the person intends to supply goods or services materially different from the goods or services in respect of which the payment or other consideration is accepted. (4) Strict liability applies to subsection (3)(a). (5) A person commits an offence if: (a) the person, in trade or commerce, accepts payment or other consideration for goods or services; and (b) at the time of the acceptance, the person was reckless as to whether he or she would be able to supply the goods or services: (i) within the period specified by or on behalf of the person at or before the time the payment or other consideration was accepted; or (ii) if no period is specified at or before that time—within a reasonable time. (6) Strict liability applies to subsection (5)(a). (7) A person commits an offence if: (a) the person, in trade or commerce, accepts payment or other consideration for goods or services; and (b) the person fails to supply all the goods or services: (i) within the period specified by or on behalf of the person at or before the time the payment or other consideration was accepted; or (ii) if no period is specified at or before that time—within a reasonable time. (8) Subsection (7) does not apply if: (a) the person’s failure to supply all the goods or services within the period, or within a reasonable time, was due to the act or omission of another person, or to some other cause beyond the person’s control; and (b) the person took reasonable precautions and exercised due diligence to avoid the failure. (9) Subsection (7) does not apply if: (a) the person offers to supply different goods or services as a replacement to the person (the customer) to whom the original supply was to be made; and (b) the customer agrees to receive the different goods or services. (10) Subsection (7) is an offence of strict liability. Penalty (10A) An offence against subsection (1), (3), (5) or (7) committed by a body corporate is punishable on conviction by a fine of not more than the greater of the following: (a) $100,000,000; (b) if the court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the commission of the offence—3 times the value of that benefit; (c) if the court cannot determine the value of that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the offence. (10B) An offence against subsection (1), (3), (5) or (7) committed by a person other than a body corporate is punishable on conviction by a fine of not more than $2,500,000. Other (11) Subsections (1), (3), (5) and (7) apply whether or not the payment or other consideration that the person accepted represents the whole or a part of the payment or other consideration for the supply of the goods or services.