Part 2 Registration of business names
4 Business names to be registered
(1) A person must not carry on business in New South Wales under any business name unless the business name is registered in the name of that person and of each other person (if any) with whom that person is carrying on that business.Maximum penalty: 50 penalty units.
(2) This section does not prevent a person from carrying on business:(a) under the proper name of that person and of each other person (if any) with whom that person is carrying on that business, or(b) under a registered business name, or under a name referred to in paragraph (a), to which are added words that indicate that the business to which the name relates is being carried on in succession to a former owner of the business, or(c) under a registered business name that is not yet registered in the name of that person, but only during the one-month period referred to in section 11 (1), or(d) under an unregistered business name that contains foreign language characters, so long as the person also carries on the business under a registered business name that is an English language equivalent of the unregistered business name, or(e) under any unregistered business name, so long as all orders for the goods or services provided by the business are received exclusively by means of an on-line service.(3) For the purposes of this section, a business carried on by a receiver, manager, administrator or trustee appointed pursuant to any agreement or court order, or pursuant to any Act or law, is taken to be carried on by the person in respect of whom he or she is appointed.
5 Application to registration of Licensing and Registration (Uniform Procedures) Act 2002
(1) The Director-General may grant registration of a business name in the name of one or more persons.(2) Part 3 of the Licensing and Registration (Uniform Procedures) Act 2002 (the applied Act) applies to and in respect of registration of a business name, subject to the modifications and limitations prescribed by or under this Act.Note. See clause 3 of Schedule 2, which temporarily suspends the provisions of the applied Act in relation to the making of applications by way of electronic communication.(3) For the purpose of applying Part 3 of the applied Act to registration of a business name:(a) the references in sections 35 (1) and 37 (3) of that Act to “18 years” are to be read as references to “16 years”, and(b) registration may be transferred under that Act, and(c) applications for restoration of registration under section 39 of that Act must be made within 3 months of the registration expiring.(4) Registration of a business name is taken to be fixed-term registration for the purposes of Part 3 of the applied Act.(5) Subject to this section, the regulations may make provision for or with respect to such matters concerning registration of a business name as are relevant to the operation of Part 3 of the applied Act.
6 Refusal of registration of certain business names
(1) A business name is not to be registered if the name contains foreign language characters.(2) Unless the Minister so directs, a business name is not to be registered:(a) if registration of the name is prohibited by an order in force under section 21, or(b) if the Director-General is of the opinion that the name is undesirable.(2A) A business name that includes the word “police” is not to be registered unless the use of that name is the subject of a consent granted under section 204B of the Police Act 1990.(2B) A business name that includes the word “sheriff” is not to be registered unless the use of that name is the subject of a consent granted under section 12 of the Sheriff Act 2005.(3) A business name is not to be registered if the Director-General is of the opinion:(a) that the name is identical to, or closely resembles, an existing registered business name, or existing business name capable of restoration under section 5 (3) (c), under which business is being carried on, and(b) that the public would be likely to be misled if business were to be carried on under both names.(4) If the Director-General refuses to register a business name, the Director-General may, subject to this section, register an alternative business name nominated by the applicant.
7 Refusal of registration of persons not carrying on business in New South Wales
A business name is not to be registered in the name of a person who is not carrying on business in New South Wales unless the Director-General is satisfied that the person intends to carry on business in New South Wales in the immediate future.
8 Refusal of registration of persons found guilty or convicted of certain offences
(1) A business name is not to be registered in the name of a person who, within the last 5 years:(a) has been found guilty or convicted of a prescribed offence, or(b) has been released from custody (whether on parole or at the end of a term of imprisonment) in respect of a sentence of imprisonment for a prescribed offence of which the person has at any time previously been found guilty or convicted,except with the leave of the District Court.(2) An application for leave may not be dealt with until 28 days after notice of the application has been given to the Minister.(3) The Minister may be represented at the hearing of, and may oppose, an application for leave.(4) No appeal lies against the decision of the District Court on an application for leave.(5) In this section, prescribed offence means:(a) an indictable offence in connection with the promotion, formation or management of a corporation, or(b) an offence involving fraud or dishonesty punishable by imprisonment for 3 months or more, or(c) an offence under section 184, 590, 592, 595, 670A, 728 or 1307 of the Corporations Act 2001 of the Commonwealth, under Part 7.11 of that Act or under any other provision of that Act prescribed by the regulations under this Act, or(d) an offence to which section 5A of the Business Names Act 1962 applied at the time of the relevant finding of guilt or conviction, or(e) an offence that was a prescribed offence at the time of the relevant finding of guilt or conviction.
9 Notice may be given of registration of identical business names
(1) The Director-General may cause written notice to be given to any person in whose name a business name is newly registered that another business name identical to, or closely resembling, the newly registered business name (being a business name specified in the notice) is already registered.(2) A copy of each such notice is to be kept in the Register.(3) Evidence that a person was given notice under this section is evidence that the person was made aware, when the notice was given, that some other person was carrying on business under the business name specified in the notice.
Registration of a business name has effect for the period of 3 years from the date on which the name is registered.
Division 2 Notification of changes in relation to business names
11 Notification of additional persons commencing to carry on business under registered business name
(1) Within one month after a person commences to carry on business in New South Wales under a registered business name, notice of that fact is to be given to the Director-General.(2) If notice is not given in accordance with subsection (1), each person in whose name the business name is registered is guilty of an offence.Maximum penalty:
(a) for a first offence, 20 penalty units, and(b) for a second or subsequent offence, 20 penalty units plus 0.5 penalty units for each day for which the offence continues.
12 Notification of persons ceasing to carry on business under registered business name
(1) Within one month after a person ceases to carry on business in New South Wales under a registered business name, notice of that fact is to be given to the Director-General.(2) If notice is not given in accordance with subsection (1), each person in whose name the business name is registered is guilty of an offence.Maximum penalty:
(a) for a first offence, 20 penalty units, and(b) for a second or subsequent offence, 20 penalty units plus 0.5 penalty units for each day for which the offence continues.
13 Notification of persons ceasing to carry on business in New South Wales
(1) Within one month after a person in whose name a business name is registered ceases to carry on business in New South Wales, notice of that fact is to be given to the Director-General.(2) If notice is not given in accordance with subsection (1), the person who has ceased to carry on business in New South Wales is guilty of an offence.Maximum penalty:
(a) for a first offence, 20 penalty units, and(b) for a second or subsequent offence, 20 penalty units plus 0.5 penalty units for each day for which the offence continues.
14 Notification of changes in relation to business
(1) Within one month after:(a) business is commenced to be carried on in New South Wales under a registered business name, or(b) business ceases to be carried on in New South Wales under a registered business name, or(c) there is any other change in the registered particulars for the business for which a business name is registered,notice of the change is to be given to the Director-General.(2) If notice is not given in accordance with subsection (1), each person in whose name the business name is registered is guilty of an offence.Maximum penalty:
(a) for a first offence, 20 penalty units, and(b) for a second or subsequent offence, 20 penalty units plus 0.5 penalty units for each day for which the offence continues.
15 Notification of changes in relation to person in whose name business name is registered
(1) Within one month after any change in the registered particulars for a person in whose name a business name is registered, notice of the change is to be given to the Director-General.(2) If notice is not given in accordance with subsection (1), the person in relation to whom the change has occurred is guilty of an offence.Maximum penalty:
(a) for a first offence, 20 penalty units, and(b) for a second or subsequent offence, 20 penalty units plus 0.5 penalty units for each day for which the offence continues.
(1) Two or more notices under this Division may be combined in a single document.(2) The Director-General may allow further time for the giving of notice required by this Division, and any notice given within that further time is taken to have been duly given.(3) An offence under this Division of failing to give notice within a specified period is taken to continue for each day after the end of that period during which the notice remains not given.
Division 3 Cancellation of registration
17 Cancellation of registration in relation to business name generally
(1) The Director-General may cancel the registration of a business name:(a) if the business name has been registered in contravention of section 6, whether by inadvertence or otherwise, or(b) if the requirements of section 11, 12, 13 or 14 have not been complied with in relation to the business name, or(c) in the case of a business name that includes the word “police”, if the Director-General receives notice that consent to the use of that name has been revoked under section 204B of the Police Act 1990, or(d) in the case of a business name that includes the word “sheriff”, if the Director-General receives notice that consent to the use of that name has been revoked under section 12 of the Sheriff Act 2005.(2) The Director-General may also cancel the registration of a business name:(a) if none of the persons in whose names the business name is registered has carried on business in New South Wales during the previous 2 months, and(b) if the Director-General is of the opinion that none of those persons intends to carry on business in New South Wales in the immediate future.(3) The Director-General may also cancel the registration of a business name:(a) if none of the persons in whose names the business name is registered has carried on business under that name in New South Wales during the previous 2 months, and(b) if the Director-General has received, but not yet determined, an application by some other person to register a business name that is identical to, or closely resembles, that name, and(c) if the Director-General is of the opinion that the public would be likely to be misled if business were to be carried on in New South Wales under both names.(4) Action may not be taken under this section with respect to a business name unless the Director-General:(a) has caused notice of the proposed action (including reasons for the proposed action) to be given to each person in whose name the business name is registered, and(b) has given each such person at least 28 days within which to make written submissions to the Director-General in relation to the proposed action, and(c) has taken all such submissions into consideration.
18 Cancellation of registration in relation to person in whose name business name is registered
(1) The Director-General may amend the registered particulars with respect to a registered business name so as to remove the name of a person in whose name the business name is registered:(a) if the person is found guilty or convicted of a prescribed offence within the meaning of section 8, or(b) if the requirements of section 15 have not been complied with in relation to the person.(2) The Director-General may also amend the registered particulars with respect to a registered business name so as to remove the name of a person in whose name the business name is registered:(a) if the person has not carried on business in New South Wales during the previous 2 months, and(b) if the Director-General is of the opinion that the person does not intend to carry on business in New South Wales in the immediate future.(3) Action may not be taken under this section with respect to a business name unless the Director-General:(a) has caused notice of the proposed action (including reasons for the proposed action) to be given to the person whose name is proposed to be removed, and(b) has given that person at least 28 days within which to make written submissions to the Director-General in relation to the proposed action, and(c) has taken all such submissions into consideration.
19 Applications to Administrative Decisions Tribunal for review
A person aggrieved by a decision made by the Director-General under this Division to cancel, whether generally or in relation to that person, the registration of a business name that is registered in that person’s name may apply to the Administrative Decisions Tribunal for a review of the decision.
(1) The Director-General is to establish and maintain a register of business names (the Register) for the purposes of this Act, and for the purposes of Part 3 of the Licensing and Registration (Uniform Procedures) Act 2002, as applied by this Act.(2) For each registered business name there are to be recorded in the Register:(a) the proper name and proper address of each person in whose name the business name is registered, and(b) an address for service of notices in relation to each such person, and(c) such other particulars as are required by the regulations to be recorded in the Register in relation to each such person.(3) For each registered business name under which business is carried on in New South Wales there are also to be recorded in the Register:(a) the date on which business commenced to be carried on under that name, and(b) the date on which business ceased to be carried on under that name, and(c) the nature of the business carried on under that name, and(d) the address of each place at or from which business is carried on under that name, and(e) such other particulars as are required by the regulations to be recorded in the Register in relation to the business carried on under that name.(4) The regulations may make provision with respect to the manner and form in which the Register is to be maintained.(5) The Director-General is to ensure that the Register is made available for public inspection during normal business hours at such places as may be prescribed by the regulations.Note. See also section 49 of the Licensing and Registration (Uniform Procedures) Act 2002 with respect to the particulars to be recorded in the Register.
21 Minister may prohibit registration of certain business names
(1) The Minister, by order published in the Gazette:(a) on his or her own initiative, or(b) as a consequence of receiving notice of the kind referred to in subsection (2) pursuant to a corresponding law,may prohibit the registration as a business name of any name or class of names specified in the order.(2) On making an order as referred to in subsection (1) (a), the Minister must cause notice of the order to be given to each Minister administering a corresponding law.(3) In this section, corresponding law means a law declared by the regulations to be a corresponding law for the purposes of this section.Editorial note. For orders under this section see Gazettes No 45 of 15.4.2005, p 1423 (revoked by Gazette No 125 of 5.11.2010, p 5414) and No 125 of 5.11.2010, p 5414.
22 Registration does not authorise contravention of other laws
Registration of a business name under this Act does not authorise a person to carry on business under that name if the person is prohibited by some other Act or law from carrying on business under that name.
23 Effect of certain contraventions on legal proceedings
(1) This section applies to a business name under which business is being carried on by a person in contravention of this Act, being:(a) an unregistered business name, or(b) a business name that is not registered in that person’s name, or(c) a registered business name in respect of which that person has failed to comply with a requirement of this Act with respect to the notification of any matter.(2) Legal proceedings commenced by a person carrying on business under a business name in respect of which there is a contravention referred to in subsection (1) are not invalid merely because of the contravention, but the court before which the proceedings are taken:(a) may adjourn the proceedings until the contravention is remedied, or(b) may continue to hear and determine the proceedings on an undertaking by the person to remedy the contravention within such time as the court may direct.(3) Legal proceedings taken against a person carrying on business under a business name in respect of which there is a contravention referred to in subsection (1) are not invalid merely because of the contravention, and:(a) that business name is taken to be sufficient designation of that person in any process or other legal document or instrument, and(b) any judgment or order given in the proceedings may be enforced against that person.(4) This section does not limit the operation of the rules of a court on legal proceedings.
(1) The following provisions apply to and in respect of any business that is carried on under a registered business name:(a) a person in whose name the business name is registered must not issue or sign any letter, statement, invoice, notice, publication, order for goods or services, receipt or other business document in connection with the carrying on of business under that name unless that name appears in legible characters on the document,(b) the business name must at all times be displayed, so as to be conspicuous to the public, at each place at which business is carried on under the business name,(c) the certificate of registration issued in respect of the business name under section 49 of the Licensing and Registration (Uniform Procedures) Act 2002 must at all times be exhibited, so as to be conspicuous to the public, at the principal place at which business is carried on under that name.(2) The provisions of subsection (1) (b) and (c) do not apply to a business in which all orders for the goods or services provided by the business are received exclusively by means of an on-line service.(3) If there is any contravention of subsection (1), each person in whose name the business name is registered is guilty of an offence.Maximum penalty:
(a) for a first offence, 20 penalty units, and(b) for a second or subsequent offence, 20 penalty units plus 0.5 penalty units for each day for which the offence continues.
25 Invitations to the public to make deposits or loans
(1) A person must not, in or in connection with an invitation to the public to lend or deposit money, use or refer to:(a) a registered business name, or(b) a business name that, if business were carried on in New South Wales under that name, would be required to be registered.Maximum penalty: 20 penalty units.
(2) This section does not apply to:(a) an invitation to the public that is made in accordance with the Corporations Act 2001 of the Commonwealth, or(b) an invitation made to a person whose ordinary business is to lend money.
A certificate:(a) that is signed by the Director-General, or by an officer of the Department authorised by the Director-General in that regard, and(b) that certifies that, on a specified date or during a specified period, the particulars contained in the Register as to specified matters were as so specified,is admissible in any proceedings and is evidence of the matters so certified.Note. See also section 55 of the Licensing and Registration (Uniform Procedures) Act 2002 with respect to evidentiary certificates.
27 Evidence as to carrying on business under business name
In any proceedings for an offence against this Act, evidence that a person has carried on business at premises on which a business name is displayed is evidence that the person has carried on business under that name.