Business Names Act 1962

Version No. 071

Business Names Act 1962

No. 6853 of 1962

Version incorporating amendments as at
1 January 2011

table of provisions

Section Page

1 Short title 1

2 Commencement 1

3 Repeals, savings and transitional provisions 1

4 Definitions 3

4A Arrangements for administration of this Act 7

4BB Delegation by the Minister 7

4B Delegation by Director 8

5 Certain business names to be registered 8

5A Leave of County Court required in certain cases before using business name 10

6 Register of business names 12

7 Registration of business names 14

7A, 8 Repealed 17

9 Restriction on registration of business names that are undesirableetc. 17

10 Power to cancel registration of business names that are undesirableetc. 18

10A Priorities between confusing names 19

11 Renewal of registration 19

12 Notification of changes in particulars relating to registered business names, cessation of businessetc. 21

13 Duty to furnish information 25

14 Disability of persons in default 27

15 Signing of documents 28

15AA Signatures 28

15A Document deemed not to be lodged until fee paid 29

15AB Approval of special lodging arrangements 29

15AC Waiver or refund of fees 31

15B Power to Director to refuse registration 31

15C Method of lodgement of documents 32

16 Verification of particulars 32

17 False and misleading statements 33

17A Retention of records 34

18 Notice of proposed cancellation 34

19 Cancellation of registration 35

20 Use and exhibition of business name, 38

21 Registrar may correct errors in register etc. 38

22 Inspection of the register 39

22A Restriction of personal information 40

22B Rights of review 40

23 Certificates of registration or non-registration 41

24 Evidence of registration or non-registration 42

25 Authority of Director to destroy documents and validation 42

26 Invitations to the public to make deposits or loans 43

27 General penalty provisions 43

28 Default penalty 44

28A Infringement notices 45

29 Application of Fair Trading Act 1999 48

30 Evidentiary provisions 49

31 As to service of notices 50

32 Regulations 51

33 Transitional 53

34 Further transitionals 54

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SCHEDULE—Repeals 56

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ENDNOTES 57

1. General Information 57

2. Table of Amendments 58

3. Explanatory Details 62

Version No. 071

Business Names Act 1962

No. 6853 of 1962

Version incorporating amendments as at
1 January 2011

An Act to consolidate and amend the Law relating to Business Names and for other purposes.

Business Names Act 1962
No. 6853 of 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 subsection—

(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;

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 reproduction 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 transparency 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;

(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 subsection (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 subsection (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 subsection (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 the Public 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. 4B

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.

Penalty: 30 penalty units. Default penalty.

S. 5(2) amended by No. 7943 s.2(b).

(2) For the purposes of subsection (1) of this section and of subsection (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;