Version No. 063
Business Names Act 1962
Act No. 6853/1962
Version incorporating amendments as at 1 July 2006
table of provisions
SectionPage
1
SectionPage
1.Short title
2.Commencement
3.Repeals, savings and transitional provisions
4.Definitions
4A.Arrangements for administration of this Act
4BB.Delegation by the Minister
4B.Delegation by Director
5.Certain business names to be registered
5A.Leave of County Court required in certain cases before using business name
6.Register of business names
7.Registration of business names
7A, 8. Repealed17
9.Restriction on registration of business names that are
undesirable etc.
10.Power to cancel registration of business names that are undesirable etc.
10A.Priorities between confusing names
11.Renewal of registration
12.Notification of changes in particulars relating to registered business names, cessation of business etc.
13.Duty to furnish information
14.Disability of persons in default
15.Signing of documents
15AA.Signatures
15A.Document deemed not to be lodged until fee paid
15AB.Approval of special lodging arrangements
15AC.Waiver or refund of fees
15B.Power to Director to refuse registration
15C.Method of lodgement of documents
16.Verification of particulars
17.False and misleading statements
17A.Retention of records
18.Notice of proposed cancellation
19.Cancellation of registration
20.Use and exhibition of business name
21.Registrar may correct errors in register etc.
22.Inspection of the register
22A.Restriction of personal information
22B.Rights of review
23.Certificates of registration or non-registration
24.Evidence of registration or non-registration
25.Authority of Director to destroy documents and validation
26.Invitations to the public to make deposits or loans
27.General penalty provisions
28.Default penalty
28A.Infringement notices
29.Application of Fair Trading Act 1999
30.Evidentiary provisions
31.As to service of notices
32.Regulations
33.Transitional
34.Further transitionals
______
SCHEDULE—Repeals
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endNOTES
1. General Information
2. Table of Amendments
3. Explanatory Details
1
Version No. 063
Business Names Act 1962
Act No. 6853/1962
Version incorporating amendments as at 1 July 2006
An Act to consolidate and amend the Law relating to Business Names and for other purposes.
1
Act No. 6853/1962
Business Names Act 1962
BE IT ENACTED by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say):
1.Short title
This Act may be cited as the Business Names Act 1962.
2.Commencement
This Act shall come into operation on a day to be fixed by proclamation of the Governor in Council published in the Government Gazette.
3.Repeals, savings and transitional provisions
(1)The Acts mentioned in the Schedule to this Act to the extent to which they are therein expressed to be repealed are hereby repealed accordingly.
(2)Except as in this Act expressly or by necessary implication otherwise provided—
(a)all persons things and circumstances appointed or created by or under the repealed Act or existing or continuing under the repealed Act immediately before the commencement of this Act shall under and subject to this Act continue to have the same status operation and effect as they respectively would have had if the repealed Act had not been repealed; and
(b)in particular and without affecting the generality of paragraph (a) of this sub-section—
(i)such repeal shall not disturb the continuity of status operation or effect of any regulation order registration certificate notice statement declaration application requirement consent obligation liability or right made effected issued granted given presented passed fixed accrued incurred or acquired or existing or continuing by or under the repealed Act before the coming into operation of this Act;
s. 3
(ii)any right of action or power of prosecution had by or against a firm, individual or corporation registered or deemed to be registered or required to have been registered under the repealed Act immediately before the commencement of this Act shall continue to be had and may be enforced as if this Act had not come into operation; and
(iii)all penalties incurred under the repealed Act before the commencement of this Act shall be enforceable and may be enforced as if this Act had not come into operation.
(3)A reference in any Act order regulation instrument or document to a firm, individual or corporation registered under the repealed Act or any corresponding previous enactment shall unless the context otherwise requires be construed as referring also to a firm, the members of which, to an individual who or to a corporation which, as the case may be, is carrying on business under a business name registered under this Act.
S. 3(4) amended by No. 8565 s.24(9).
(4)A reference to the Registrar-General in any Act order regulation rule instrument or document relating to any matter under or in connexion with the repealed Act or any corresponding previous enactment shall unless the context otherwise requires be construed as referring to the Commissioner under this Act.
(5)A business name in respect of which a firm individual or corporation was immediately before the commencement of this Act registered or deemed to be registered under the repealed Act shall subject to this Act upon the commencement of this Act be deemed to be registered under this Act in relation to each member of the firm in relation to the individual or in relation to the corporation as the case may be and this Act shall apply to and in relation to the business name accordingly.
A.C.T. s.4, N.S.W. s.2, Vic.s.3, Qld.s.3, S.A.s.3, W.A.s.3, Tas.s.3.
4.Definitions[1]
s. 4
(1)In this Act unless the contrary intention appears—
"business" includes trade and profession;
"business name" means a name style title or designation under which a business is carried on;
S. 4(1) def. of "carrying on business" amended by Nos 8565 s.24(9), 9699 s.23.
"carrying on business" includes establishing a place of business in the State and soliciting or procuring any order from a person in the State and "to carry on business" has a corresponding meaning;
S. 4(1) def. of "christian or given name" substituted by No. 69/1987 s.15(a).
"christian or given name" means the first name or any other name given to a person;
S. 4(1) def. of "Commis-sioner" inserted by No. 8565 s.24(9), substituted by No. 9698 s.14(1), repealed by No. 17/1999 s.24(1)(a).
s. 4
*****
S. 4(1) def. of "corporation" amended by Nos 9699 s.23, 35/2000 s.13(a), 44/2001 s.3(Sch. item12.1(a)).
"corporation" means any body corporate formed or incorporated whether in the State or outside the State and includes any foreign company or registrable Australian body within the meaning of the Corporations Act;
"director" in relation to a corporation includes any person occupying the position of director of the corporation by whatever name called;
S. 4(1) def. of "Director" inserted by No. 17/1999 s.24(1)(b).
"Director" means the Director within the meaning of the Fair Trading Act 1999;
S. 4(1) def. of "family name" inserted by No. 69/1987 s.15(b).
"family name" means the surname or other part of a name which is not a Christian or given name;
"firm" means an unincorporated body of persons (whether consisting of individuals or of corporations or partly of individuals and partly of corporations) associated together for the purpose of carrying on business;
"individual" means a natural person and does not include a corporation;
"initial" includes a recognized abbreviation of a christian name;
S. 4(1) def. of "machine-copy" insertedby No.9522 s.2(a), repealed by No.8/2003 s.22(a).
*****
S. 4(1) def. of "personal information" insertedby No.8/2003 s.22(b).
"personal information" has the same meaning as in section 3 of the Information Privacy Act 2000;
"prescribed" means prescribed by or under this Act;
"register" means the register of business names kept under this Act or under any corresponding previous enactment;
S. 4(1) def. of "registered address" inserted by No. 9522 s.2(b), amended by No. 69/1987 s.15(c).
s. 4
"registered address" in relation to a business means the address last nominated under section 7 or section 12 to be the registered address of that business;
S. 4(1) def. of "Registrar" repealed by No. 8565 s.24(9).
*****
"regulations" means regulations made under this Act;
"repealed Act" means the Business Names Act1958;
S. 4(1) def. of "repro-duction" inserted by No. 9522 s.2(c).
"reproduction" in relation to a document means a machine-copy of the document or a print made from a negative of the document and "reproduce" and any derivatives thereof shall have a corresponding interpretation;
S. 4(1) def. of "secretary" amended by No. 9699 s.23, substituted by No. 35/2000 s.13(b), amended by No. 44/2001 s.3(Sch. item12.1(b)).
"secretary",in relation to a corporation, includes any person performing the duties of the secretary of the corporation and, in relation to a foreign company registered under the Corporations Act, means a local agent of that company appointed for the purposes of that Act;
"section" means section of this Act;
"State" means the State of Victoria;
S. 4(1) def. of "trans-parency" inserted by No. 9522 s.2(d), repealed by No.8/2003 s.22(a).
*****
s. 4
(2)For the purposes of this Act a person shall not be regarded as carrying on business within the State for the reason only that within the State he—
(a)is or becomes a party to any action or suit or any administrative or arbitration proceeding, or effects settlement of an action suit or proceeding or of any claim or dispute;
(b)maintains any bank account;
(c)effects any sale through an independent contractor;
(d)creates evidence of any debt or creates a charge on real or personal property;
(e)secures or collects any of his debts or enforces his rights in regard to any securities relating to such debts;
(f)conducts an isolated transaction that is completed within a period of thirty-one days, but not being one of a number of similar transactions repeated from time to time; or
(g)invests any of his funds or holds any property.
(3)For the purposes of this Act a business name shall be deemed to be registered under this Act in relation to a person if it appears from the register that the person either alone or together with other persons is carrying on business under that name.
S. 4A insertedby No. 80/1990 s.100.
4A.Arrangements for administration of this Act
s. 4A
S. 4A(1) amended by Nos 17/1999 s.24(2), 35/2000 s.14.
(1)The Director may make an arrangement with the Australian Securities and Investments Commission about any matter connected with the administration of this Act.
(2)In particular, an arrangement may provide—
(a)for the performance of functions and theexercise of powers conferred by sub-section (3) by the Commission; or
S. 4A(2)(b) amended by No. 17/1999 s.24(2).
(b)for the performance of functions or the exercise of powers of the Director under this Act by staff members of the Commission.
S. 4A(3) amended by No. 17/1999 s.24(2).
(3)Subject to sub-section (4), the Commission has the functions and powers of the Director under this Act.
(4)The Commission must not perform a function or exercise a power conferred by sub-section (3) except in accordance with an arrangement under this section.
S. 4BB inserted by No. 35/2000 s.15.
4BB.Delegation by the Minister
The Minister may, by instrument, delegate to the Director the power of the Minister to give consent under section 9(1).
S. 4B
inserted by No. 17/1999 s.25, amended by No. 108/2004 s.117(1) (Sch.3 item23).
4B.Delegation by Director
The Director, by instrument, may delegate to any person or class of persons employed under Part 3 of thePublic Administration Act 2004 in the administration of this Act, any of the Director's functions or powers under this Act, other than this power of delegation.
A.C.T. s.6, N.S.W. s.4, Vic. s.4, Qld.s.5, S.A.s.4, W.A.ss 4, 6, Tas.s.4.
5.Certain business names to be registered[2]
s. 4BB
S. 5(1) amended by No. 35/2000 s.16.
(1)A person shall not either alone or in association with other persons carry on business in the State under a business name unless—
(a)the business name consists of the name of that person and the name of each other person if any in association with whom that person is so carrying on business without any addition; or
(b)the business name is registered under this Act in relation to that person and each other person if any in association with whom that person is so carrying on business—
and where the business name is so registered such of the provisions of section twelve which are required to be complied with by or on behalf of the person or persons in relation to whom the name is registered have been complied with[3].
Penalty:30 penalty units. Default penalty.
S. 5(2) amended by No. 7943 s.2(b).
(2)For the purposes of sub-section (1) of this section and of sub-section (2) of section 5A the name of a person consists of—
S. 5(2)(a) amended by No. 69/1987 s.16(a).
(a)in the case of an individual his full name, or his family name together with—
S. 5(2)(a)(i) amended by No. 69/1987 s.16(b).
(i)his christian or given name or names;
S. 5(2)(a)(ii) amended by No. 69/1987 s.16(b).
(ii)the initial or initials of his christian or given name or names;
S. 5(2)(a)(iii) amended by No. 69/1987 s.16(b).
(iii)a combination of one or more of his christian or given names and the initial or initials of his remaining christian or given name or names; or
S. 5(2)(a)(iv) amended by No. 69/1987 s.16(b).
(iv)the christian or given name or names by which he is commonly known or the initial or initials by which he is commonly known or any combination of one or more of such names and such initials;
s. 5
(b)in the case of a corporation—the corporate name of the corporation.
S. 5(3) amended by No. 7943 s.2(b).
(3)The addition to a business name of words indicating that the business is carried on in succession to a former owner of the business shall for the purposes of sub-section (1) of this section and of sub-section (2) of section 5A be deemed not to be an addition to the business name.
(4)Where a business is carried on by an official receiver a trustee in bankruptcy or a trustee under a deed or scheme of arrangement entered into under a law of the Commonwealth relating to bankruptcy or by a receiver manager or other person appointed by any court or under the powers contained in any instrument to carry on the business the business shall for the purposes of this Act be deemed to be carried on by the person who carried on the business immediately before the appointment of the receiver trustee manager or other person.
(5)Notwithstanding anything in this Act a contravention of or failure to comply with any provision thereof shall not operate to avoid any agreement transaction act or matter.
S. 5A insertedby No. 7943 s.2(a).
5A.Leave of County Court required in certain cases before using business name
s. 5A
(1)This section applies to a person convicted whether before or after the commencement of the Business Names (Amendment) Act 1970, and whether within or without the State—
(a)on indictment of an offence in connexion with the promotion, formation or management of a corporation;
(b)of an offence involving fraud or dishonesty punishable on conviction with imprisonment for three months or more; or
S. 5A(1)(c) amended by Nos 9699 s.23, 35/2000 s.17(a), substituted by No. 44/2001 s.3(Sch. item12.2).
(c)of an offence which at the time of his or her conviction is or was specified in—
(i)section 122(1)(c) of the Companies Act 1961; or
(ii)section 227(2)(c) or (d) of the Companies (Victoria) Code; or
(iii)section 229(3)(c) of the Corporations Law as in force before 13 March 2000; or
(iv)section 206B of the Corporations Law; or
(v)section 206B of the Corporations Act.
S. 5A(2) amended by Nos 9554 s.2(2)(Sch. 2 item 25), 35/2000 s.17(b).
(2)A person to whom this section applies shall not, within the period of five years next succeeding any occasion on which he is convicted as referred to in sub-section (1) or, where he has served a term of imprisonment imposed pursuant to any such conviction, within the period of five years next succeeding his release from that imprisonment, carry on business in the State under a business name unless—
(a)the business name under which he so carries on business—
(i)consists of his name; or
s. 5A
(ii)where he carries on business in association with another person or other persons, consists of his name and the name or names of the person or persons in association with whom he carries on business—
without any addition; or
(b)he has obtained the leave of the County Court upon application made as provided by sub-section (3) so to carry on business.
Penalty:120 penalty units. Default penalty.
(3)An application for leave of the County Court shall not be made unless the Minister has been given not less than twenty-eight days' notice of the proposed application.
(4)The Minister may be represented at the hearing of, and may oppose, the application.
(5)Nothing in this section shall be construed as affecting the operation of section 5.
(6)Nothing in this section shall make it an offence for any person to carry on business under a business name which immediately before the commencement of the Business Names (Amendment) Act 1970 and at all times thereafter has been a business name registered under this Act under which that person was carrying on business in the State.
A.C.T. s.18, N.S.W. s.16, Vic. s.16, Qld.s.18, S.A.s.18, W.A.s.16, Tas.s.16.
6.Register of business names[4]
s. 6
S. 6(1) amended by Nos 8565 s.24(9), 17/1999 s.24(2), substituted by No. 8/2003 s.23.
(1)The Director must keep a register of business names open for public inspection in the form determined by the Director.
S. 6(2) substituted by No. 8/2003 s.23.
(2)The purpose of keeping the register is to enable members of the public to have access to the contact details of the business and the persons responsible for the business operating under the business name.
S. 6(2A) insertedby No.8/2003 s.23.
(2A)The register must include details of the following in relation to each registered business name—
(a)business number issued by the Director;
(b)business name;
(c)current status of registration (registered or registration cancelled);
(d)date of registration or cancellation of registration;
(e)date business commenced;
(f)renewal of registration date;
(g)nature of business;
(h)current registered address of the business and date address registered;
(i)previous registered address and date of cessation as registered address;
(j)current postal address;
s. 6
(k)each current address in the State where the business is carried on and date on which business commenced at that address;
(l)previous address in the State where the business was carried on and date on which business ceased at that address;
(m)current proprietor's name and date of commencement;
(n)current proprietor's residential address;
(o)current proprietor's previous name and date of change of name;
(p)former proprietor's name and date of cessation as proprietor;
(q)former proprietor's last recorded residential address;
(r)former proprietor's previous name and date of change of name;
(s)Australian Business Number (if any) issued under the A New Tax System (Australian Business Number) Act 1999 of the Commonwealth;
(t)Internet site address maintained for the purposes of the business in relation to which the business name is registered (if any);
(u)any information prescribed by the regulations as forming part of the register.
S. 6(2B) insertedby No.8/2003 s.23.
(2B)The Director may request from a person who carries on or seeks to carry on a business under a registered business name any information or authorisation that the Director determines is necessary for the administration of this Act.
S. 6(2C) insertedby No.8/2003 s.23.
(2C)If, under sub-section (2B), a person who carries on or seeks to carry on a business under a registered business name is requested by the Director to provide additional information or authorisation, that person must provide the information or authorisation to the Director within 28 days after receiving the request.
S. 6(2D) insertedby No.8/2003 s.23.
(2D)Any additional information obtained under sub-section (2C) does not form part of the register.
s. 6