Commonwealth Numbered Acts

PETROLEUM RETAIL MARKETING FRANCHISE ACT 1980 No. 139, 1980 - SECT 3

3. (1) In this Act, unless the contrary intention appears-

"agreement" means any agreement, arrangement or understanding-

   (a)  whether formal or informal or partly formal and partly informal;

   (b)  whether written or oral or partly written and partly oral; and

   (c)  whether or not having legal or equitable force and whether or not
        based on legal or equitable rights;



"child", in relation to a person, includes an adopted child, a step-child or
an ex-nuptial child of that person;



"commencement", in relation to an agreement, means the day on which the
agreement comes into effect;



"contravention", in relation to a provision of this Act or any other law,
includes a failure to comply with that provision;



"corporation" means-

   (a)  a body corporate that is a foreign corporation;

   (b)  a body corporate that is a trading corporation formed within the
        limits of the Commonwealth;

   (c)  a body corporate that is incorporated in an internal Territory; or

   (d)  a body corporate that is related to a body corporate of a kind
        referred to in paragraph (a), (b) or (c);



"director", in relation to a body corporate, includes any person occupying or
acting in the position of director of the body corporate, by whatever name
called and whether or not validly appointed to occupy or duly authorized to
act in the position;



"foreign corporation" means a foreign corporation within the meaning of
paragraph 51 (xx) of the Constitution, and includes a body corporate that is
incorporated in an external Territory;



"franchise agreement" means an agreement containing-

   (a)  provisions, whether express or implied, under or by virtue of which a
corporation (in this Act referred to as the "franchisor") authorizes, permits
or requires a person, being another party to the agreement (in this Act
referred to as the "franchisee"), to use, in connection with the retail sale
of motor fuel by that person at the premises to which the agreement relates, a
mark identifying, commonly associated with, or controlled by, that corporation
or a related corporation;

   (b)  provisions, whether express or implied, under or by virtue of which a
corporation (in this Act referred to as the "franchisor") grants a right to,
or otherwise authorizes or permits, a person, being another party to the
agreement (in this Act referred to as the "franchisee"), to possess, occupy or
use the premises to which the agreement relates in connection with the retail
sale of motor fuel by that person at those premises; or

   (c)  provisions, whether express or implied, under or by virtue of which-

      (i) a corporation (in this Act referred to as the "franchisor") is
entitled or required to supply motor fuel to a person, being another party to
the agreement (in this Act referred to as the "franchisee"), for retail sale
by that person at the premises to which the agreement relates; or

      (ii) a person (in this Act referred to as the "franchisee") agrees with
a corporation (in this Act referred to as the "franchisor") to acquire motor
fuel from another person (whether a party to the agreement or not) for retail
sale by the first-mentioned person at the premises to which the agreement
relates;



"franchisee" means a party to a franchise agreement, being the person referred
to as the franchisee in paragraph (a) or (b) or sub-paragraph (c) (i)
or (ii), as the case may be, of the definition of "franchise agreement";



"franchisor" means a party to a franchise agreement, being the corporation
referred to as the franchisor in paragraph (a) or (b) or sub-paragraph (c) (i)
or (ii), as the case may be, of the definition of "franchise agreement";



"interim franchise agreement" means a franchise agreement to which sub-section
13 (3) applies that is entered into for a term not exceeding one year;



"lease" includes a sub-lease;



"mark" includes a symbol, design, colour, device, brand, heading, label,
ticket, name, signature, word, letter or numeral, or any combination of the
foregoing;



"marketing premises" means premises to which a franchise agreement relates,
being the premises referred to in paragraph (a) or (b) or sub- paragraph (c)
(i) or (ii), as the case may be, of the definition of "franchise agreement";



"motor fuel" means petrol or diesel fuel to be used in propelling road
vehicles;



"officer", in relation to a body corporate, includes-

   (a)  a director or secretary of the body corporate;

   (b)  a receiver and manager of the whole or any part of the property of the
        body corporate appointed under a power contained in any instrument; or

   (c)  a liquidator of the body corporate appointed in a voluntary winding
        up;



"parent", in relation to a person, means a person of whom that person is a
child;



"person with prescribed experience" means a person who, for a period
amounting, or for periods amounting in the aggregate, to not less than one
year during the period of 6 years preceding the relevant time, was a
franchisee in relation to a franchise agreement or franchise agreements
(whether or not all or any of the provisions of this Act apply to the
agreement or agreements), where the agreement, or each of the agreements, as
the case may be, was not terminated by reason of a ground referred to in any
of paragraphs 16 (2) (a) to (j) (inclusive) or any other breach of the
agreement by the person;



"provision", in relation to an agreement, means any matter forming part of the
agreement, and includes a covenant;



"road vehicle" means a vehicle designed solely or principally for transporting
persons, goods or animals by road;



"share", in relation to a body corporate, means a share in the capital of the
body corporate, and includes stock;



"trading corporation" means a trading corporation within the meaning of
paragraph 51 (xx) of the Constitution.

(2) Except so far as the contrary intention appears, a reference in this Act
to an agreement shall be read as including a reference to a proposed
agreement, an agreement as requested or proposed to be renewed, or a
terminated or expired agreement and, in relation to such an agreement, a
reference in this Act to a party to the agreement shall be read as a reference
to a person who would be a party to the agreement if the agreement were in
effect.

(3) Unless the contrary intention appears, a reference in this Act, except in
sub-section 6 (6), to the time when an agreement is entered into shall, in the
case of an agreement that does not commence on the day on which it is entered
into, be read as a reference to the day on which it commences.

(4) A reference in this Act to renewal, in relation to a franchise agreement,
shall be read as a reference to entering into a new franchise agreement, where
the provisions of the new agreement are the same as those of the
first-mentioned agreement or do not differ substantially from the provisions
of the first- mentioned agreement except in any one or more of the following
respects:

   (a)  an amount payable by the franchisee under the new agreement is greater
        or less than the amount that was payable by the franchisee under the
        corresponding provision of the first-mentioned agreement;

   (b)  the term of the new agreement is longer or shorter than the term of
        the first-mentioned agreement;

   (c)  a provision of the new agreement (other than a provision relating to
        an amount payable by the franchisee or the term of the agreement)
        differs, with the consent of the franchisee, from the corresponding
        provision of the first-mentioned agreement;

   (d)  a provision of the new agreement differs from the corresponding
        provision of the first-mentioned agreement and the difference results
        solely from the operation of a provision of this Act or is designed to
        make the new agreement conform with a provision of this Act.

(5) A reference in this Act, except in sub-section 6 (8), to retail sale by a
person shall not be read as including retail sale by that person as servant or
agent of another person.

(6) A reference in this Act to a member of the immediate family of a
franchisee shall be read as a reference to the spouse, or a parent, child,
brother, sister, half-brother or half-sister, of the franchisee.

(7) A reference in this Act to a company controlled by a franchisee shall be
read as a reference to a company controlled by all or any of the following:

   (a)  the franchisee;

   (b)  the members of the immediate family of the franchisee.

(8) Where a franchise agreement is one of 2 or more franchise agreements to
which this Act applies by virtue of paragraph 6 (1) (b), those agreements
shall, for the purposes of this Act, be deemed to be related to each other.

(9) In this Act-

   (a)  a reference to an agreement shall be read as including a reference to
        a lease of, or a licence in respect of, premises, and shall be so read
        notwithstanding the express references in this Act to such leases or
        licences;

   (b)  a reference to making or entering into an agreement, in relation to
        such a lease or licence, shall be read as a reference to granting or
        taking the lease or licence; and

   (c)  a reference to a party to an agreement, in relation to such a lease or
        licence, shall be read as including a reference to any person bound
        by, or entitled to the benefit of, any provision contained in the
        lease or licence.

(10) The express references in this Act to entering into an agreement by way
of renewal shall not be taken to imply that other references to entering into
an agreement do not include references to entering into an agreement by way of
renewal.

(11) A reference in a provision of this Act to a court shall be read as a
reference to a court that, by virtue of section 26, has jurisdiction in
matters arising under that provision.

(12) A reference in this Act to the retail sale in bulk of motor fuel shall be
read as a reference to the retail sale of motor fuel, where that motor fuel is
not delivered, at the premises at which it is sold, into a part of a road
vehicle in which motor fuel for the propulsion of that vehicle is stored.