2013
2013
2013-11-27
act
government
publicgeneral
act.reprint
partuncommenced
2013-10-24
2013-10-24
1
2013
none
act-2013-107
f4b0bb9d-1d68-4e39-a6bf-b261a8d5bf81
793beae9-02c3-46c8-a8b1-7133404639e8
Does not include amendments
by:
Civil and
Administrative Legislation (Repeal and Amendment) Act 2013 No
95 (not commenced — to commence on
1.1.2014)
Note—
Amending provisions are subject to automatic
repeal pursuant to sec 30C of the Interpretation
Act 1987 No 15 once the amendments have taken
effect.
An Act with respect to the licensing and conduct
of motor dealers, motor vehicle repairers, motor vehicle recyclers and motor
vehicle repair tradespersons; to repeal the Motor Dealers Act
1974 and the Motor Vehicle
Repairs Act 1980; and for other
purposes.
Part 1Preliminary
1Name of
Act
This Act is the Motor Dealers and
Repairers Act 2013.
2Commencement
(1)
This Act commences on a day or days to be
appointed by proclamation, except as provided by this
section.
(2)
Part 6 and clause 11 of Schedule 2 commence on
the date of assent to this Act.
3Objects of
Act
The objects of this Act are as follows:
(a)
to provide consumer protections and remedies for
consumers who purchase motor vehicles from motor dealers or obtain motor
vehicle repair services,
(b)
to establish appropriate standards of conduct and
transparency for motor dealers, motor vehicle repairers and motor vehicle
recyclers,
(c)
to provide enforcement mechanisms to prevent
misleading or dishonest conduct and illegal dealings with motor vehicles and
parts,
(d)
to provide protection for motor dealers against
unfair contract dealings by motor vehicle
manufacturers.
4Definitions
(1)
In this Act:
accessories means additional parts,
or fittings, for the purpose of enhancing the comfort, appearance or
performance of motor vehicles, including sound and internet devices,
navigation devices, air conditioning units and spare wheels and tools usually
carried on motor vehicles, but not including parts or fittings prescribed by
the regulations for the purposes of this definition.
approved means approved by the
Secretary.
authorised officer—see section
149.
carrying
on a business—see section 7.
close
associate—see section 8.
Compensation Fund means the Motor
Dealers and Repairers Compensation Fund established under section
165.
credit
contract has the same meaning as it has in the National
Credit Code.
criminal
intelligence means information classified by the
Commissioner of Police as criminal intelligence within the meaning of the
Crimes (Criminal Organisations Control) Act
2012, or declared by the Supreme Court under that Act to
be criminal intelligence.
current
inspection report—see section 56.
deal means buy, sell or
exchange.
dealer
guarantee means the obligation imposed by section 68
(1).
dealer’s notice—see
section 62.
demonstrator motor vehicle—see
section 61.
disciplinary action—see
section 45 (1).
financier means a person (other than
a person prescribed by the regulations for the purposes of this definition)
who carries on the business of dealing in motor vehicles only in connection
with any of the following:
(a)
the provision of credit (within the meaning of
the National Credit Code), whether or not that Code applies to the provision
of that credit,
(b)
the letting of motor vehicles to other persons
for periods of 3 months or more without an option to
purchase,
(c)
any other purpose prescribed by the
regulations.
function includes a power, authority
or duty, and exercise a function includes perform
a duty.
inspection report for a motor
vehicle means an inspection report for the motor vehicle issued in accordance
with the requirements of Roads and Maritime Services for vehicle registration
purposes or a report prescribed by the regulations for the purposes of this
definition.
licence means the following:
(a)
a motor dealer’s
licence,
(b)
a motor vehicle repairer’s
licence,
(c)
a motor vehicle recycler’s
licence,
(d)
a tradesperson’s
certificate.
licence
holder means a person who is for the time being the holder
of a licence.
linked
credit provider has the same meaning as it has in the
National Credit Code.
motor
dealer—see section 5.
motor
dealer’s licence means a motor dealer’s licence
in force under this Act.
motor
vehicle means a vehicle of the following kind that is built
to be propelled by a motor that forms part of the vehicle, and includes a
trailer:
(a)
any description of vehicle on wheels, other than
a vehicle used on a railway or tramway or an aircraft,
(b)
any description of tracked vehicle, or any
description of vehicle that moves on revolving runners inside endless tracks,
that is not used exclusively on a railway or
tramway.
Note—
Section 9 exempts certain motor vehicles from
this Act.
motor
vehicle broker—see section 103.
motor
vehicle recycler means a person who carries on one or more
of the following businesses:
(a)
buying or obtaining motor vehicles or parts or
accessories of motor vehicles and demolishing or dismantling the motor
vehicles or parts or accessories,
(b)
buying and selling major body and mechanical
components of motor vehicles, major car accessories and parts or accessories
of motor vehicles prescribed by the regulations for the purposes of this
definition.
motor
vehicle recycler’s licence means a motor vehicle
recycler’s licence in force under this Act.
motor
vehicle repairer—see section 6.
motor
vehicle repairer’s licence means a motor vehicle
repairer’s licence in force under this Act.
motor
vehicle stealing offence—see section 25
(6).
National
Credit Code means the National Credit
Code set out in Schedule 1 to the National Consumer Credit
Protection Act 2009 of the Commonwealth.
number-plate means a number-plate
issued under a law of this State or a law of another State or a
Territory.
owner of a motor vehicle means a
person who:
(a)
is the sole owner, joint owner or part owner of
the motor vehicle, or
(b)
has possession or use of the motor vehicle under
a credit, hire-purchase, lease or other agreement, except an agreement
requiring the motor vehicle to be registered in the name of someone
else.
property includes real and personal
property and money.
registered means registered under a
law for the registration of vehicles of this State or another State or a
Territory.
repair includes examine, detect
faults in, adjust, carry out maintenance on, overhaul, replace, alter and
paint.
repair
work—see section 6 (2).
second-hand motor cycle means a
motor cycle that is a second-hand motor vehicle.
second-hand motor vehicle includes a
motor vehicle that, at any time before being offered or displayed for sale, or
sold, has been registered to a person other than the purchaser, and includes a
demonstrator motor vehicle.
Secretary means the head of the
Public Service agency to which the administration of this Act is
assigned.
tradesperson’s certificate
means a tradesperson’s certificate in force under this
Act.
trailer means a vehicle that:
(a)
is built to be towed, or is towed, by a motor
vehicle, and
(b)
is not capable of being propelled in the course
of normal use on roads without being towed by a motor
vehicle,
whether or not its movement is aided by some other power
source, but does not include a motor vehicle being towed or a trailer having a
tare weight of 250 kilograms or less.
Tribunal means the Consumer, Trader
and Tenancy Tribunal.
(2)
In this Act, a reference to buying a thing
includes buying that thing as a principal or agent.
(3)
Notes included in this Act do not form part of
this Act.
5Motor
dealers
(1)
A motor
dealer means a person who carries on the business of dealing
in motor vehicles as a retailer or on a wholesale basis.
(2)
A person who carries on the business of
assembling or manufacturing motor vehicles is not a motor dealer merely
because the person sells any of those cars to a motor dealer or a
financier.
(3)
A financier is not a motor
dealer.
(4)
A motor vehicle broker is not a motor
dealer.
6Motor vehicle
repairers
(1)
In this Act, motor
vehicle repairer means a person who carries on the business
of carrying out repair work on motor vehicles.
(2)
In this Act, repair
work means work of a class or classes prescribed by the
regulations for the purposes of this section.
(3)
A person is not a motor vehicle repairer if the
person carries out repair work only in the course of employment with another
person or on the person’s own motor vehicle.
(4)
This Act does not apply to any part of the
business of a motor vehicle repairer that involves repairs that are not repair
work.
7Meaning of “carrying on
a business”
In this Act, a reference to a person carrying on a business includes a
reference to the person carrying on the business in partnership or by an
employee, contractor, agent or other person.
8Meaning of “close
associate”
(1)
For the purposes of this Act, a person is a
close
associate of an applicant for a licence or a licence holder
if the person:
(a)
holds or will hold any relevant financial
interest, or is or will be entitled to exercise any relevant power (whether in
the person’s own right or on behalf of any other person), in the
business of the applicant or licence holder that is or will be carried on
under the authority of the licence, and by virtue of that interest or power is
or will be able (in the opinion of the Secretary) to exercise a significant
influence over or with respect to the management or operation of that
business, or
(b)
holds or will hold any relevant position, whether
in the person’s own right or on behalf of any other person, in the
business of the applicant or licence holder that is or will be carried on
under the authority of the licence, or
(c)
is or will be engaged as a contractor or employed
in the business of the applicant or licence holder that is or will be carried
on under the authority of the licence.
(2)
For the purposes of this section, a financial
institution is not a close associate merely because it has a relevant
financial interest in relation to a business.
(3)
The provisions of this section extend to relevant
financial interests and relevant powers even if those interests and powers are
not payable, exercisable or otherwise enforceable as a matter of law or
equity, but are nevertheless payable, exercisable or otherwise enforceable as
a matter of fact.
(4)
In this section:
relevant
financial interest in a business means:
(a)
any share in the capital of the business,
or
(b)
any entitlement to receive any income derived
from the business, or to receive any other financial benefit or financial
advantage from the carrying on of the business, whether the entitlement arises
at law or in equity or otherwise, or
(c)
any entitlement to receive any rent, profit or
other income in connection with the use or occupation of premises on which the
business is or is to be carried on (such as, for example, an entitlement of
the owner of the premises at which the business is carried on to receive rent
as lessor of the premises).
relevant
position means:
(a)
the position of director, manager or secretary,
or
(b)
any other position, however designated, if it is
an executive position.
relevant
power means any power, whether exercisable by voting or
otherwise and whether exercisable alone or in association with others:
(a)
to participate in any directorial, managerial or
executive decision, or
(b)
to elect or appoint any person to any relevant
position.
9Motor vehicles exempted from
Act
This Act does not apply to the following motor
vehicles:
(a)
a crane, hoist or conveyor,
(b)
an excavator, road grader, road roller, bulldozer
or forklift truck or other machinery (other than a tractor), that is not
constructed on a chassis of a type normally used in the construction of a
truck,
(c)
a motor vehicle that is constructed or adapted
for road construction or maintenance (including cleaning, sweeping or
watering).
Note—
Other motor vehicles, persons or other things may
be exempted from provisions of this Act by the regulations (see section 186
(2) (a)).
Part 2Licences
Division 1Offences
10Definitions
In this Division:
transport
service owner means a person (including a NSW Government
agency) who, for the purpose of any business carried on by the person, uses a
motor vehicle for the carriage of passengers or
goods.
11Unlicensed motor
dealers
A person must not carry on, or advertise that the
person carries on or is willing to carry on, the business of a motor dealer
unless:
(a)
the person is the holder of a motor
dealer’s licence, and
(b)
the business is carried on or proposed to be
carried on at a place for which the licence is granted,
and
(c)
the business is carried on or proposed to be
carried on in accordance with the licence.
Maximum penalty: 1,000 penalty units or, in the
case of a second or subsequent offence, 1,000 penalty units or imprisonment
for 12 months, or both.
12Unlicensed motor vehicle
repairers
A person must not carry on, or advertise that the
person carries on or is willing to carry on, the business of a motor vehicle
repairer unless:
(a)
the person is the holder of a motor vehicle
repairer’s licence, and
(b)
the business is carried on or proposed to be
carried on at a place for which the licence is granted,
and
(c)
the business is carried on or proposed to be
carried on in accordance with the licence.
Maximum penalty: 1,000 penalty units or, in the
case of a second or subsequent offence, 1,000 penalty units or imprisonment
for 12 months, or both.
Note—
An offence against this section committed by a
corporation is an executive liability offence attracting executive liability
for a director or other person involved in the management of the
corporation—see section 159.
13Unlicensed motor vehicle
recyclers
A person must not carry on, or advertise that the
person carries on or is willing to carry on, the business of a motor vehicle
recycler unless:
(a)
the person is the holder of a motor vehicle
recycler’s licence, and
(b)
the business is carried on or proposed to be
carried on at a place for which the licence is granted,
and
(c)
the business is carried on or proposed to be
carried on in accordance with the licence.
Maximum penalty: 1,000 penalty units or, in the
case of a second or subsequent offence, 1,000 penalty units or imprisonment
for 12 months, or both.
14No offence if partner holds
licence
A person is not guilty of an offence under this
Division relating to the carrying on of a business if the person carries on a
business in partnership with another person and the other person complies with
the requirements of this Division for that business.
15Repair work must be done by
licensed motor vehicle repairers
(1)
A motor vehicle repairer or a transport service
owner must not, in the course of business, enter into an agreement for any
repair work to be done by another person who is not the holder of a motor
vehicle repairer’s licence.
Note—
An offence against subsection (1) committed by a
corporation is an executive liability offence attracting executive liability
for a director or other person involved in the management of the
corporation—see section 159.
(2)
An insurer of a motor vehicle must not:
(a)
enter into an agreement, or require the owner of
the motor vehicle to enter into an agreement, for any repair work to be done
on the motor vehicle by any person who does not hold a motor vehicle
repairer’s licence, or
(b)
specify in the contract of insurance for the
motor vehicle a motor vehicle repairer who does not hold a motor vehicle
repairer’s licence.
(3)
This section does not apply to a contract of
employment or other agreement for the provision of services as a
contractor.
Maximum penalty: 20 penalty
units.
16Repair work must be done by
holder of tradesperson’s certificate
(1)
A motor vehicle repairer, a motor dealer or a
transport service owner must not permit an employee of the person to do any
repair work unless the person doing the work:
(a)
holds a tradesperson’s certificate for a
class of repair work that includes that work, or
(b)
is doing the work in the course of an
apprenticeship or traineeship under the supervision of a person who holds a
tradesperson’s certificate for a class of repair work that includes that
work, or
(c)
is doing the work in other circumstances
prescribed by the regulations for the purposes of this
section.
Note—
An offence against subsection (1) committed by a
corporation is an executive liability offence attracting executive liability
for a director or other person involved in the management of the
corporation—see section 159.
(2)
A motor vehicle repairer or a motor dealer must
not personally do any repair work in the course of the repairer’s or
dealer’s business unless the repairer or dealer holds a
tradesperson’s certificate for a class of repair work that includes that
work.
Maximum penalty: 20 penalty
units.
17Holding
out
(1)
A person must not hold himself or herself out as
the holder of a licence if the person is not the holder of such a
licence.
(2)
A person must not hold himself or herself out as
a person who is authorised to do a class of repair work if the person is not
the holder of a tradesperson’s certificate authorising that class of
repair work.
Maximum penalty: 20 penalty
units.
18Transfer or loan of
tradesperson’s certificate
(1)
The holder of a tradesperson’s certificate
must not:
(a)
transfer, attempt to transfer or lend the
certificate to another person, or
(b)
allow the use of the certificate by another
person.
(2)
A person must not:
(a)
attempt to obtain the transfer to the person of a
tradesperson’s certificate, or
(b)
attempt to borrow, or borrow or use, a
tradesperson’s certificate of which the person is not the
holder.
Maximum penalty: 20 penalty
units.
19Production of licences and
certificates
(1)
The holder of a motor dealer’s licence,
motor vehicle repairer’s licence or motor vehicle recycler’s
licence must not, without reasonable excuse, at the place of business
specified in the licence, fail to comply with a request to produce the licence
to an authorised officer.
(2)
The holder of a tradesperson’s certificate
must not, without reasonable excuse, at any place where the holder does repair
work, fail to comply with a request to produce the certificate to an
authorised officer.
Maximum penalty: 10 penalty
units.
Division 2Licences
generally
20Types of
licences
The Secretary may grant the following
licences:
(a)
a motor dealer’s
licence,
(b)
a motor vehicle repairer’s
licence,
(c)
a motor vehicle recycler’s
licence,
(d)
a tradesperson’s
certificate.
21Application of Licensing and Registration (Uniform Procedures) Act
2002
(1)
Part 2 of the Licensing and
Registration (Uniform Procedures) Act 2002 (the Licensing Act) applies to and in
respect of a licence, subject to the modifications and limitations prescribed
by this Act or the regulations.
(2)
A licence may be amended under the Licensing
Act.
(3)
An application for restoration of a licence under
section 10 of the Licensing Act may not be made more than 3 months after the
date on which the licence expires.
(4)
The regulations may make provision for or with
respect to such matters concerning a licence as are relevant to Part 2 of the
Licensing Act.
Note—
The Licensing Act sets out procedures for the
making of applications for licences and the granting, renewal, restoration and
replacement of licences. It also provides for the provision of further
information by applicants for licences, the withdrawal of applications and the
grant and refusal of applications.
22Multiple
licences
A person may hold 2 or more different licences
under this Act.
Division 3Grant and refusal of licence
applications
23Investigation of
applications
(1)
The Secretary may make any inquiries that the
Secretary considers necessary in relation to an application for a
licence.
(2)
The Commissioner of Police must, at the request
of the Secretary, investigate an application for a licence and, as soon as
practicable after completing the investigation, report to the Secretary on the
investigation.
24Application
fees
An application for a licence is to be accompanied
by the fee prescribed by the regulations for the
application.
25Grounds for
refusal—licences other than tradespersons’
certificates
(1)
This section applies to motor dealers’
licences, motor vehicle repairers’ licences and motor vehicle
recyclers’ licences.
(2)
The Secretary must not grant a licence to an
individual if the Secretary is satisfied of any of the following:
(a)
that the applicant is not over the age of
18,
(b)
that the applicant is not a fit and proper person
to hold a licence,
(c)
that the applicant is a controlled member of a
declared organisation,
Note—
Controlled members are prohibited from applying
for licences—see section 27 of the Crimes (Criminal
Organisations Control) Act 2012.
(d)
that the applicant is an undischarged
bankrupt,
(e)
that the applicant does not have the
qualifications, if any, prescribed by the regulations for the purposes of the
licence concerned,
(f)
that the applicant has (as an adult) been found
guilty, within the preceding 10 years, of a motor vehicle stealing
offence.
(3)
The Secretary must not grant a licence to an
applicant that is a body corporate if the Secretary is satisfied of any of the
following:
(a)
a director or person involved in the management
of the body corporate, or any other person who appears to the Secretary to
have control or substantial control of the body corporate, would, if the
director or person applied for the licence as an individual, be prohibited by
this section from being granted the licence,
(b)
the officers of the body corporate do not have
the qualifications, if any, prescribed by the regulations for the purposes of
the licence concerned,
(c)
the reputation of the body corporate is such that
it is not a fit and proper person to hold a
licence.
(4)
The Secretary must not grant a licence to any
applicant, if the Secretary is satisfied of any of the following:
(a)
that the applicant is not likely to carry on the
business for which the licence is sought honestly and
fairly,
(b)
that the carrying on of the business at any place
to which the application for the licence relates is unlawful for any
reason.
(5)
The Secretary may refuse to grant a licence to an
applicant if the Secretary is satisfied of any of the following:
(a)
that a close associate of the applicant is not a
fit and proper person to hold a licence,
(b)
that there is another licence in force in
relation to the whole or a part of a place of business to which the
application for the licence relates.
(6)
In this Act:
motor
vehicle stealing offence means an offence of, or relating
to:
(a)
stealing a motor vehicle (within the meaning of
Division 5A of Part 4 of the Crimes Act
1900), or
(b)
receiving, or unlawful possession of, a motor
vehicle within the meaning of Division 5A of Part 4 of the Crimes Act 1900 or a motor vehicle
part.
Note—
Section 18 of the Licensing and
Registration (Uniform Procedures) Act 2002 contains the
power to determine a licence application.
26Mandatory grounds for
refusal—tradespersons’ certificates
(1)
The Secretary must not grant a
tradesperson’s certificate to an individual if the Secretary is
satisfied of any of the following:
(a)
that the applicant is not a fit and proper person
to hold a licence,
(b)
that the applicant does not have the required
qualifications or experience for the class of repair work for which the
certificate is sought,
(c)
that the applicant is an apprentice or
trainee.
(2)
The required qualifications for a class of repair
work are the qualifications or experience prescribed by the regulations for
that class of repair work.
27Criteria for being fit and
proper person to hold a licence
(1)
In determining whether a person is a fit and
proper person to hold a motor dealer’s licence, a motor vehicle
repairer’s licence or a motor vehicle recycler’s licence, the
Secretary may have regard to any of the following:
(a)
whether the applicant has, in the preceding 10
years, been found guilty of an offence involving fraud or dishonesty (whether
in this State or elsewhere),
(b)
whether proceedings for such an offence have been
commenced against the applicant but have not been finally
determined,
(c)
whether the applicant has been convicted of an
offence against this Act or the regulations or another Act administered by the
Minister,
(d)
whether the applicant has failed to pay any
contribution or other payment required to be paid by the applicant to the
Compensation Fund under this Act.
(2)
An applicant is not a fit and proper person to be
the holder of any licence if the Secretary has reasonable grounds to believe
from information provided by the Commissioner of Police in relation to the
applicant that:
(a)
the applicant is a member of, or regularly
associates with one or more members of, a declared organisation within the
meaning of the Crimes (Criminal Organisations
Control) Act 2012, and
(b)
the nature and circumstances of the
applicant’s relationship with the organisation or its members are such
that it could reasonably be inferred that improper conduct that would further
the criminal activities of the declared organisation is likely to occur if the
applicant is granted a licence.
(3)
The Secretary is not, under this or any other Act
or law, required to give any reasons for refusing an application for a licence
or taking disciplinary action against a person because of subsection (2) to
the extent that the giving of those reasons would disclose any criminal
intelligence.
(4)
This section does not limit the grounds on which
the Secretary may determine that a person is not a fit and proper person to
hold a licence.
Division 4Terms of
licences
28Motor dealer’s
licence
A motor dealer’s licence is to specify the
place or places of business at which the licence holder may carry on the
business of a motor dealer.
29Motor vehicle repairer’s
licence
A motor vehicle repairer’s licence is to
specify the place or places of business at which the licence holder may carry
on the business of a motor vehicle repairer.
30Motor vehicle recycler’s
licence
A motor vehicle recycler’s licence is to
specify the place or places of business at which the licence holder may carry
on the business of a motor vehicle recycler.
31Tradesperson’s
certificate
A tradesperson’s certificate is to specify
the class or classes of repair work authorised by the
certificate.
32Conditions of
licences
(1)
A licence is subject to any conditions imposed by
the Secretary (when the licence is granted or at any later time) or that are
prescribed by the regulations.
(2)
The Secretary may at any time, on the
Secretary’s own motion or on the application of the holder of a licence,
by notice in writing to the holder, revoke or vary a condition of the licence
imposed by the Secretary.
33Duration of
licence
(1)
A licence has effect for the term specified in
the licence (not exceeding 3 years) unless it is sooner
cancelled.
(2)
The suspension of a licence does not affect the
term of the licence.
34Amendment of
licences
(1)
An application to amend a licence may seek
to:
(a)
add or remove a class of repair work from a
tradesperson’s certificate, or
(b)
add or remove a place of business specified in a
licence.
(2)
An application to amend a licence is to be
accompanied by the fee, if any, prescribed by the
regulations.
(3)
The Secretary may refuse to grant an application
to amend a licence on any ground on which the Secretary may refuse to grant a
licence in the terms of the proposed amended licence.
35Surrender of
licences
(1)
A licence holder may surrender the licence by
giving it to the Secretary with a notice in writing that the licence is
surrendered.
(2)
If a licence that is to be surrendered has been
lost or destroyed, it is sufficient for this section if the notice in writing
sets out that fact.
(3)
The surrender of a licence by the licence holder
after the issue of a show cause notice under Division 2 of Part 3 does not
affect the taking of any disciplinary action by the Secretary under that
Division. For that purpose, the licence is taken not to have been
surrendered.
36Duplicate
licences
The Secretary may issue a duplicate licence on
payment of the fee prescribed by the regulations if the Secretary is satisfied
that the licence has been lost or destroyed.
37Change in place of business to
be notified to Secretary
The holder of a licence must give the Secretary
notice in writing, within 14 days of the change occurring, if the holder
ceases to carry on a business authorised by the licence at a place specified
in the licence.
Maximum penalty: 20 penalty
units.
Part 3Disciplinary
provisions
Division 1Grounds for disciplinary
action
38Grounds for disciplinary
action—all licences
(1)
The grounds on which disciplinary action may be
taken against a licence holder or a former licence holder are as
follows:
(a)
the person has contravened, or the Secretary has
reasonable grounds to believe that the person is likely to contravene, a
provision of this Act or the regulations or of any other Act administered by
the Minister,
(b)
the person has contravened, or the Secretary has
reasonable grounds to believe that the person is likely to contravene, a
condition of the person’s licence,
(c)
the person is not a fit and proper person to hold
a licence,
(d)
if the person were not a licence holder, the
Secretary would be required by this Act to refuse an application by the person
for the licence,
(e)
the Secretary considers, in the light of evidence
available to the Secretary, that the person is probably receiving or dealing
in stolen goods,
(f)
the licence may have been improperly obtained or,
when it was granted, there may have been grounds for refusing to grant
it.
(2)
Disciplinary action must not be commenced against
a former licence holder more than 12 months after the person last ceased to be
a licence holder.
39Additional grounds for
disciplinary action—motor dealers’ licences, motor vehicle
repairers’ licences and motor vehicle recyclers’
licences
Disciplinary action may also be taken against the
holder or a former holder of a motor dealer’s licence, a motor vehicle
repairer’s licence or a motor vehicle recycler’s licence on the
following grounds:
(a)
the business authorised by the licence has not
been conducted in accordance with standards for the supply of goods and
services established under the Australian Consumer Law
(NSW),
(b)
the business authorised by the licence has been
carried on in a dishonest or unfair manner,
(c)
the person has not, for a period of 1 month or
more, carried on business at a place of business to which the licence
relates,
(d)
in the case of the holder or the former holder of
a motor dealer’s licence or motor vehicle recycler’s licence, the
person has contravened section 73 (1) or (3) of the Road
Transport Act 2013 or the statutory rules made under Part
4.5 of that Act,
(e)
in the case of the holder or the former holder of
a motor vehicle repairer’s licence, the person has contravened, or the
Secretary has reasonable grounds to believe that the person is likely to
contravene, section 98 of the Road Transport
Act 2013 or the statutory rules made under Part 4.5 of
that Act,
(f)
in the case of the holder or the former holder of
a motor dealer’s licence, there has been undue delay, or unreasonable
refusal, on the part of the person in paying, applying or accounting for trust
money as required by or under Division 6 of Part 4,
(g)
in the case of the holder or the former holder of
a motor dealer’s licence, there are reasonable grounds for believing
that there is a deficiency in a trust account of the motor dealer maintained
under Division 6 of Part 4,
(h)
the person has failed to comply with a
rectification order made against the person under Division 2 of Part
5,
(i)
the person is contravening another law by
carrying on business at a place of business to which the licence
relates,
(j)
in the case of a body corporate, the body
corporate:
(i)
is in the course of being wound up, is a body
corporate in respect of which a receiver or other controller has been
appointed or has entered into a compromise or scheme of arrangement with its
creditors, or
(ii)
may, for any other reason, be unable to or be
likely to become unable to meet its liabilities.
40Additional grounds for
disciplinary action—tradespersons’
certificates
Disciplinary action may also be taken against the
holder of a tradesperson’s certificate on the ground that the person is
not competent to do repair work of a class to which the certificate
relates.
Division 2Disciplinary
process
41Show cause
notice
(1)
The Secretary may give a show cause notice to a
person if the Secretary is of the opinion that there are reasonable grounds to
believe that there are grounds for taking disciplinary action against the
person.
(2)
A show cause notice is a notice requiring a
person to show cause why disciplinary action should not be taken against the
person under this Act on the grounds specified in the
notice.
(3)
A show cause notice is to be in writing and is to
specify a period of not less than 14 days after the notice is given as the
period that the person to whom the notice is directed has to show cause as
specified in the notice.
(4)
The person to whom a show cause notice is given
may, within the period allowed by the notice, make oral or written submissions
to the Secretary in respect of the matters to which the notice relates. In the
case of a corporation, submissions may be made by a director or officer of the
corporation.
(5)
Except as otherwise provided by this Act, the
Secretary must not take disciplinary action against a person unless the person
has been given a show cause notice and the Secretary has considered any
submissions made in accordance with the show cause
notice.
42Power to suspend licence when
show cause notice given
(1)
When a show cause notice is given to a person,
the Secretary may by notice in writing to the person suspend the
person’s licence pending a determination by the Secretary of whether to
take disciplinary action under this Act against the
person.
(2)
The Secretary may suspend a licence under this
section only if satisfied that the grounds for disciplinary action specified
in the show cause notice would, if established, justify the suspension or
cancellation of the licence.
(3)
The suspension must not be for a period of more
than 60 days after the show cause notice is given.
(4)
The Secretary is not required to give a person an
opportunity to be heard before taking action against the person under this
section.
(5)
The Secretary can revoke a suspension under this
section at any time by notice in writing to the suspended
person.
(6)
This section does not limit or otherwise affect
any power to suspend a licence under section 79A of the Fair
Trading Act 1987.
43Inquiries and
investigations
The Secretary may, if the Secretary thinks fit,
conduct inquiries and carry out investigations in relation to the matters to
which a show cause notice relates and the submissions, if any, made by or on
behalf of the person to whom the show cause notice
relates.
44Decision to take no further
action
(1)
The Secretary may at any stage of a matter that
is the subject of consideration under this Part decide to take no further
action whether or not the matter is the subject of a complaint or a show cause
notice and whether or not the Secretary determines that there are grounds for
taking disciplinary action in connection with the
matter.
(2)
This section does not apply to any circumstances
in which this Division requires the licence of a person to be
cancelled.
45Secretary may take
disciplinary action
(1)
The Secretary may take any of the following
disciplinary actions against a
person if the Secretary is satisfied that there are grounds for taking
disciplinary action against the person:
(a)
reprimand the person,
(b)
direct the person to take specified action within
a specified time in connection with the conduct of a business or the exercise
of functions under a licence,
(c)
suspend the person’s licence for a period
not exceeding the unexpired term of the licence,
(d)
impose a condition on the person’s
licence,
(e)
without limiting paragraph (b), require a licence
holder to make a contribution to the Compensation Fund of a specified amount
or indemnify the Fund to the extent specified by the Secretary in the event of
a particular contingency arising from the licence holder’s
activities,
(f)
disqualify the person, either permanently or for
a specified period, from being a licence holder or involved in the direction,
management or conduct of a business for which a licence is
required,
(g)
cancel a licence.
(2)
The disciplinary action is to be taken by order
in writing given to the person against whom the action is being taken. The
order must specify the date on which the order takes
effect.
(3)
The Secretary must cancel a licence if the
Secretary disqualifies the licence holder from being the holder of a
licence.
46Mandatory licence
cancellations
The Secretary must cancel a licence under this
Division if the Secretary is satisfied that there are any of the following
grounds for taking disciplinary action against the licence holder:
(a)
the licence holder (other than the holder of a
tradesperson’s certificate) has (as an adult) been found guilty, within
the preceding 10 years, of a motor vehicle stealing
offence,
(b)
the licence holder is not a fit and proper person
to hold a licence.
Note—
Section 27 sets out the criteria for determining
whether a person is a fit and proper person to hold a
licence.
47Offences
(1)
A person who is disqualified under this Division
from being involved in the direction, management or conduct of a business must
not act contrary to the disqualification.
Maximum penalty: 20 penalty
units.
(2)
The holder or former holder of a licence
suspended or cancelled under this Division must not, without reasonable
excuse, fail to return the licence to the Secretary within 7 days of the
suspension or cancellation taking effect.
Maximum penalty: 20 penalty
units.
Part 4Obligations relating to sale,
recycling and repair of motor vehicles
Division 1Sale of motor vehicles
generally
48Motor vehicles must be sold at
licensed premises
(1)Offence
The holder of a motor dealer’s licence must
not offer or display a motor vehicle for sale at a place other than a place of
business specified in the licence.
Maximum penalty: 20 penalty
units.
(2)
For the purposes of this section, the place of
business specified in a motor dealer’s licence does not include a road
or footpath in the immediate vicinity of the place of
business.
(3)Exception—trade
shows
A person is not guilty of an offence against this
section if a motor vehicle is offered or displayed for sale at a trade show
and the business carried on by the motor dealer while participating in the
trade show is limited to the following:
(a)
advising persons with respect to the quality,
performance and characteristics of motor vehicles,
(b)
making offers to, or receiving offers from,
persons to enter into agreements for the sale of motor vehicles (other than
second-hand motor vehicles).
(4)Exceptions—requests by
others
A person is not guilty of an offence against this
section if a motor vehicle is offered or displayed for sale at another place
in response to an unsolicited request made by a person to the motor dealer to
display the motor vehicle at the other place or to carry out all or part of
the transactions relating to the sale or purchase of the motor vehicle at that
other place.
(5)Definitions
In this section:
second-hand motor vehicle does not
include a second-hand tractor or self-propelled agricultural
machinery.
trade
show means an event held at a place where a number of motor
dealers, motor vehicle manufacturers or other industry participants display
motor vehicles.
49Failure to disclose being
motor dealer
(1)
A motor dealer who sells a motor vehicle to
another person and who fails to disclose to that person the fact that the
motor dealer is a motor dealer is guilty of an offence.
(2)
An employee or agent of a motor dealer who sells
a motor vehicle to another person in that capacity is guilty of an offence if
the employee or agent fails to disclose to the person the fact that the sale
is being made by or on behalf of a motor dealer.
(3)
This section does not apply to the sale of a
motor vehicle to a motor dealer, a motor vehicle recycler or a
financier.
Maximum penalty: 20 penalty
units.
50Representations and other Acts
by employees or agents of motor dealers
(1)
A representation made in the course of a motor
dealer’s business by an employee or agent of the motor dealer about a
motor vehicle offered or displayed for sale by the motor dealer is taken, for
the purposes of this Act and the regulations, to have been made by the motor
dealer.
(2)
If a provision of this Part requires a motor
dealer to do a thing in relation to the sale or proposed sale of a motor
vehicle, the motor dealer is taken to have complied with that provision if the
thing is done on behalf of the motor dealer by an employee or agent of the
motor dealer.
51Misrepresentations about
manufacture, registration or model of motor vehicle
(1)False
representations
A person must not, in connection with offering or
displaying a motor vehicle for sale or the sale of a motor vehicle, make a
false representation of a kind specified in subsection (2) knowing it to be
false or misleading.
Maximum penalty: 20 penalty
units.
(2)
The false representations are as follows:
(a)
a representation that the year of manufacture of
the motor vehicle is a year other than the actual year of manufacture of the
motor vehicle,
(b)
a representation that the year in which the motor
vehicle was first registered is a year other than the year in which the motor
vehicle was actually first registered,
(c)
a representation that the model designation of
the motor vehicle is a model designation other than the actual model
designation of the motor vehicle.
(3)Effect of other
laws
This section does not affect the operation of
Part 5 of the Fair Trading Act
1987 (as in force before its repeal by the Fair Trading Amendment (Australian Consumer Law) Act
2010), or Part 4-1 of the Australian Consumer Law
(NSW). However, a person cannot be prosecuted in respect
of the same matter for an offence under this section and either of those
Parts.
(4)Compensation
orders
A court that convicts a person of an offence
under this section may, on its own motion or on application by the prosecutor
or a person who purchased the motor vehicle relying on the false
representation, order the convicted person to pay to the purchaser an amount
determined by the court as being the amount of the difference between the sale
price of the motor vehicle and its fair price at the time of the
sale.
(5)Definition
In this section:
model
designation means any words, figures, letters or symbols
used by the manufacturer of a motor vehicle to identify a motor vehicle of
that model.
52Odometer
tampering
(1)Offence
A person must not:
(a)
alter the reading on the odometer of a motor
vehicle, or
(b)
remove or replace the odometer of a motor
vehicle, or
(c)
render the odometer of a motor vehicle
inoperative or inaccurate by any means.
Maximum penalty: 200 penalty
units.
(2)
It is presumed, in the absence of evidence to the
contrary, that a defendant in proceedings for an offence under this section
committed the offence if it is proved in those proceedings that:
(a)
the defendant had possession of the motor
vehicle, and
(b)
at that time or soon after the motor vehicle
ceased to be in the defendant’s possession, the odometer reading was
less than the reading at the time the defendant acquired possession of the
motor vehicle.
(3)Defence
It is a defence in proceedings for an offence
under this section if the defendant proves that:
(a)
the action was not taken by the defendant with
the intent of enhancing the apparent value of the motor vehicle for the
purpose of sale, and
(b)
the action was not taken by the defendant for any
other fraudulent purpose.
(4)Repairs
permitted
Despite any other provision of this section, the
holder of a motor vehicle repairer’s licence may repair or replace an
odometer if:
(a)
the holder notifies the Secretary in the approved
form of the repair or replacement, and
(b)
the reading on the repaired or replacement
odometer is restored so that it shows an accurate reading for the motor
vehicle.
(5)
Despite any other provision of this section, any
person may repair or replace an odometer if the repair or replacement:
(a)
is approved by the Secretary or a person
prescribed by the regulations for the purposes of this section,
and
(b)
is in accordance with the
approval.
(6)Compensation
orders
A court that convicts a person of an offence
under this section or section 53 may, on its own motion or on application by
the prosecutor or a person who purchased the motor vehicle relying on the
odometer reading of the motor vehicle, order the convicted person to pay to
the purchaser an amount determined by the court as being the amount of the
difference between the sale price of the motor vehicle and its fair price at
the time of the sale.
53Devices to facilitate odometer
tampering
A person must not fit to a motor vehicle a device
capable of rendering the odometer of the motor vehicle inoperative or
inaccurate.
Maximum penalty: 200 penalty
units.
54Suspected odometer
tampering
A licence holder or any employee of a licence
holder who suspects on reasonable grounds that the odometer reading of a motor
vehicle in the licence holder’s possession may have been altered or be
inaccurate must without unreasonable delay inform the Secretary of that
suspicion.
Maximum penalty: 50 penalty
units.
Division 2Inspection report and
number-plate requirements
55Application of
Division
(1)
This Division applies to or in respect of the
sale by auction or otherwise of a motor vehicle.
(2)
This Division does not apply to or in respect of
the following motor vehicle sales:
(a)
a sale of a motor vehicle that was registered for
the first time, or the registration of which was renewed, within 90 days of
the sale concerned,
(b)
a sale to a motor dealer, motor vehicle recycler
or financier,
(c)
a sale by a motor vehicle recycler of a
substantially demolished or dismantled motor
vehicle.
(3)
In this Division, auction of a motor vehicle includes
a proposed auction, and sale of a motor vehicle includes a
proposed sale.
56Current inspection
reports
An inspection report is a current inspection report for a
motor vehicle for the purposes of this Act if it was issued within the period
prescribed by the regulations before the date on which it is being relied
on.
57Sale at auction with
number-plates
(1)
A person must not offer or display for sale, or
sell, by auction a motor vehicle to which a number-plate is attached unless a
current inspection report is attached to the vehicle in the manner prescribed
by the regulations.
Maximum penalty: 20 penalty
units.
(2)
Despite subsection (1), a person may offer or
display for sale, or sell, by auction a motor vehicle without an attached
current inspection report if:
(a)
a notice in the form prescribed by the
regulations is attached to the motor vehicle in the manner prescribed by the
regulations, and
(b)
a current inspection report is provided to the
purchaser by the person within 7 days following the sale,
and
(c)
the purchase price of the motor vehicle as
accepted at auction or, if the sale took place after the auction, as
negotiated is not subsequently altered, and
(d)
the purchaser is not required to meet any part of
the cost of any repairs required to be made to the motor vehicle in order to
obtain the current inspection report.
58Other sales with
number-plates
(1)
A motor dealer must not sell a motor vehicle to
which a number-plate is attached unless the motor dealer gives to the
purchaser at or before the sale a current inspection report for the motor
vehicle.
Maximum penalty: 20 penalty
units.
(2)
This section does not apply to a sale by
auction.
59Sales of motor vehicles
without number-plates attached
A motor dealer must not sell a motor vehicle
without a number-plate attached unless one of the following is displayed with
the vehicle:
(a)
a certificate or receipt for the surrender of the
number-plates for the motor vehicle issued by Roads and Maritime Services or
by a person authorised by a law of another State or a Territory to issue the
certificate or receipt,
(b)
a declaration by the motor dealer in the form (if
any) prescribed by the regulations that sets out the reason for the absence of
any number-plate and the lack of such a certificate or
receipt.
Maximum penalty: 20 penalty
units.
Division 3Dealers’
notices
60Application of
Division
This Division does not apply to or in respect of
the following motor vehicle sales:
(a)
a sale by bona fide auction,
(b)
a sale to a motor dealer, motor vehicle recycler
or financier,
(c)
a sale by a motor vehicle recycler of a
substantially demolished or dismantled motor vehicle,
(d)
a sale to a motor vehicle recycler for the
purpose of the motor vehicle being wholly or partly demolished or
dismantled.
61Definition of
“demonstrator motor vehicle”
In this Act:
demonstrator motor vehicle means a
motor vehicle:
(a)
that has been used only for a purpose connected
with its manufacture or sale or for the purpose of demonstrating the motor
vehicle, or a motor vehicle of that kind, to a potential purchaser,
and
(b)
that has not been sold to a person other than a
motor dealer, and
(c)
that has been registered only in the name of a
motor dealer, a person on behalf of a motor dealer or another person in
anticipation of the sale of the motor vehicle to that
person.
62Dealers’
notices—disclosure and other requirements
(1)
If a provision of this Act requires a dealer’s notice, the notice
provided must:
(a)
be in the form prescribed by the regulations for
the purposes of the provision that requires the dealer’s notice,
and
(b)
contain the particulars required to complete the
form, but not contain particulars that are false or misleading in a material
particular.
(2)
If this Act requires more than one dealer’s
notice to be attached or provided in the same circumstances, the required
dealers’ notices must be combined in one notice.
(3)
A holder of a motor dealer’s licence is not
liable for a contravention of a provision of this Act that requires the
attachment to, or provision of a dealer’s notice for, a motor vehicle
that is sold on behalf of the holder by another motor
dealer.
63Sale notices for second-hand
motor vehicles (other than motor cycles or demonstrator motor
vehicles)
(1)Application
This section does not apply to a second-hand
motor cycle or a demonstrator motor vehicle.
(2)Offences
A motor dealer must not offer or display for sale
a second-hand motor vehicle unless a dealer’s notice is attached to the
motor vehicle.
(3)
A motor dealer must not sell a second-hand motor
vehicle unless:
(a)
at or before the sale, the motor dealer and the
purchaser sign the dealer’s notice required by this section, or a copy
of the notice, and
(b)
the motor dealer gives the purchaser the notice,
or a copy, to keep.
Maximum penalty (subsections (2) and (3)): 20
penalty units.
(4)Motor vehicles on premises
presumed to be for sale
In any proceedings for an offence under
subsection (2), it is presumed in the absence of evidence to the contrary,
that a second-hand motor vehicle found at a place at which a motor dealer is
licensed to carry on business as a motor dealer is offered or displayed for
sale, unless:
(a)
the motor vehicle has attached to it, in the
manner prescribed by the regulations, a notice in the prescribed form
specifying that the motor vehicle is not for sale, and
(b)
the motor vehicle does not have any other notice
attached to it, or any marking on it, that purports to be the price of the
motor vehicle or otherwise suggests that the motor vehicle is being offered or
displayed for sale.
64Sale notices for second-hand
motor cycles and demonstrator motor vehicles
A motor dealer must not sell a second-hand motor
cycle or a demonstrator motor vehicle unless:
(a)
at or before the sale, the motor dealer and the
purchaser sign a dealer’s notice, or a copy of the notice,
and
(b)
the motor dealer gives the purchaser the notice,
or a copy, to keep.
Maximum penalty: 20 penalty
units.
65Damage notice for new
vehicles
(1)
This section does not apply to a second-hand
motor vehicle.
Note—
A demonstrator motor vehicle is a second-hand
motor vehicle.
(2)
A motor dealer must not sell a motor vehicle that
the dealer knows is a damaged motor vehicle, or that the motor dealer would
know on a reasonable inspection is a damaged motor vehicle, unless:
(a)
at or before the sale, the motor dealer and the
purchaser sign a dealer’s notice that contains particulars of the
damage, or a copy of the notice, and
(b)
the motor dealer gives the purchaser the notice,
or a copy, to keep.
Maximum penalty: 20 penalty
units.
(3)
A motor vehicle is a damaged
motor vehicle for the purposes of this section if any of the
following damage (not being superficial damage) has been done:
(a)
the motor vehicle has suffered water
damage,
(b)
the body or frame of the motor vehicle has been
damaged so that the replacement or repair of the whole or part of a panel,
structural member or component of the motor vehicle is required to restore the
motor vehicle to a reasonable condition,
(c)
the body or frame of the motor vehicle has been
damaged so that the replacement of not less than 4 major external panels
(fittings excepted) fitted to the vehicle by means of bolts or other
mechanical fastening devices is required to restore the motor vehicle to a
reasonable condition.
66Defences
(1)
In any proceedings for an offence against this
Division in which it is alleged that a particular required to complete a
dealer’s notice was not included, it is a defence if the defendant
proves that:
(a)
the motor vehicle concerned was brought into this
State for the purpose of resale, and
(b)
the particular was not known to the defendant and
the defendant could not, with reasonable diligence, find out the
particular.
(2)
In any proceedings for an offence against this
Division in which it is alleged that a particular required to complete a
dealer’s notice was false or misleading in a material particular, it is
a defence if the defendant proves that:
(a)
the defendant took all reasonable steps to find
out the true particulars, and
(b)
the particulars included were, to the best of the
defendant’s knowledge, true.
Division 4Defects in motor vehicles sold
by motor dealers
67Definitions
(1)
In this Division:
defective
vehicle means a motor vehicle that is in such a condition,
or has such a defect, that the supply of the motor vehicle would constitute a
breach of a guarantee (a consumer
guarantee) that applies under sections 54–57 of Part
3-2 of the Australian Consumer Law
(NSW).
limitation period for a motor
vehicle is the period for which the dealer guarantee is in force for the motor
vehicle.
(2)
In this Division, a reference to a motor vehicle is a reference to the
vehicle complete with all accessories fitted to the
vehicle.
68Dealer guarantee for defective
vehicles
(1)Dealer
guarantee
A motor dealer must, at the motor dealer’s
own expense, repair or make good a motor vehicle sold by the motor dealer, if
it is a defective vehicle, so as to place the motor vehicle in a reasonable
condition having regard to its age.
Note—
Any repairs must be carried out by the holder of
a tradesperson’s certificate (see section 16).
(2)
The following persons have the benefit of the
dealer guarantee:
(a)
the purchaser of the motor vehicle from the motor
dealer,
(b)
any subsequent owner of the motor vehicle, but
only if the motor vehicle was not a second-hand motor vehicle when sold by the
motor dealer liable for the dealer guarantee.
(3)
A motor dealer ceases to be liable for the dealer
guarantee for a motor vehicle if the motor vehicle is at any time acquired by
the motor dealer or another motor dealer.
(4)
The dealer guarantee does not apply to a motor
vehicle if no limitation period is specified for the motor vehicle under this
Division.
(5)Vehicle must be defective
before end of limitation period
The dealer guarantee applies only to a motor
vehicle that is or becomes a defective vehicle before the end of the
limitation period for the motor vehicle (whether or not it is known before the
end of the limitation period that the motor vehicle is a defective
vehicle).
(6)Defects that become apparent
after limitation period
A motor dealer is not required to comply with the
dealer guarantee if the condition or defect that causes a motor vehicle to be
a defective vehicle becomes apparent after the limitation period and the owner
of the motor vehicle fails to report the condition or defect to the motor
dealer within a reasonable period of becoming aware of the condition or
defect.
69Limitation
periods
(1)Calculation of limitation
period generally
The limitation period for a motor vehicle ends
when either the distance limit or time limit specified in this section is
first reached for the motor vehicle.
(2)
The period of the time limit for a motor vehicle
commences when the motor dealer sells the motor vehicle. If the purchaser
takes possession of a new motor vehicle before the sale by the motor dealer is
completed, the sale is taken to have occurred on the day the purchaser first
takes possession.
(3)New vehicle driven less than
15,000 km before sale (not motor cycle)
For a motor vehicle (not being a motor cycle or a
second-hand motor vehicle) driven less than 15,000 km when sold by a motor
dealer, the distance limit is 20,000 km after manufacture and the time limit
is 12 months less 1 month for each 2,000 km that the vehicle was driven before
it was sold by the motor dealer.
(4)New vehicle driven for more
than 15,000 km before sale (not motor cycle)
For a motor vehicle (not being a motor cycle or a
second-hand motor vehicle) driven 15,000 km or more when sold by a motor
dealer, the distance limit is 5,000 km after sale and the time limit is 3
months.
(5)Second-hand vehicle driven for
not more than 160,000 km before sale (not motor cycle)
For a second-hand motor vehicle (not being a
motor cycle) driven not more than 160,000 km, and not more than 10 years old,
when sold by a motor dealer, the distance limit is 5,000 km after sale and the
time limit is 3 months.
(6)New motor cycle driven less
than 7,000 km before sale
For a motor cycle (not being a second-hand motor
cycle) driven less than 7,000 km when sold by a motor dealer, the distance
limit is 10,000 km after manufacture and the time limit is 6 months less 1
month for each 2,000 km that the vehicle was driven before it was sold by the
motor dealer.
(7)New motor cycle driven more
than 7,000 km before sale
For a motor cycle (not being a second-hand motor
cycle) driven more than 7,000 km when sold by a motor dealer, the distance
limit is 3,000 km after sale and the time limit is 3
months.
(8)Unregistrable new motor
cycle
For a motor cycle (not being a second-hand motor
cycle) that is of a design that makes it incapable of being registered in this
State, the distance limit is 5,000 km after sale and the time limit is 3
months.
(9)Unregistrable second-hand
motor cycle driven for not more than 30,000 km before
sale
For a second-hand motor cycle that is of a design
that makes it incapable of being registered in this State driven not more than
30,000 km, and not more than 5 years old, when sold by a motor dealer, the
distance limit is 3,000 km after sale and the time limit is 3
months.
(10)Other
categories
The regulations may prescribe additional
categories of limitation periods for specified motor vehicles for the purposes
of this section.
70Variation of distance and time
limits by regulation
(1)
The regulations may vary a distance or time limit
specified in section 69.
(2)
The regulations may do so by amending section 69
for that purpose.
71Enforcement of dealer
guarantee
The dealer guarantee applicable to a motor
vehicle is enforceable by the owner of the motor vehicle as if:
(a)
it were a term of the contract of sale between
the motor dealer and the owner, or
(b)
if the owner purchased the motor vehicle from a
person other than the motor dealer, there was a contract of sale between the
motor dealer and the owner that contained the dealer
guarantee.
72Motor vehicles for which there
is no dealer guarantee
The dealer guarantee does not apply to the
following motor vehicles:
(a)
a motor vehicle sold by a motor dealer at a bona
fide auction if a dealer’s notice specifying that the dealer guarantee
does not apply to the motor vehicle is attached to the motor vehicle at the
time of sale,
(b)
a substantially demolished or partially
dismantled motor vehicle that is purchased by the holder of a motor vehicle
recycler’s licence,
(c)
a motor vehicle sold by a motor dealer that is
unregistered and, at the time of sale, requires substantial
repair.
Note—
The regulations may also exempt other motor
vehicles or specified defects and other damage (see section 186 (2)
(a)).
73Damage not covered by dealer
guarantee
The dealer guarantee does not apply to damage to
a motor vehicle in the following circumstances:
(a)
if the damage is incidental or accidental damage
that occurred to the motor vehicle after the sale by the motor dealer and when
it was not in the possession of the motor dealer,
(b)
if the damage occurred to the motor vehicle after
the sale by the motor dealer and was caused by misuse by or negligence of the
driver, or because the motor vehicle was used for motor racing or motor
rallying,
(c)
if the damage is superficial damage to the
paint-work or upholstery of a second-hand motor vehicle that would have been
apparent on a reasonable inspection at the time of
sale.
74No dealer guarantee for
second-hand motor vehicles where defect notice and inspection report
attached
(1)
The dealer guarantee does not apply to the sale
of a second-hand motor vehicle if the requirements of this section are
complied with.
(2)
A motor dealer who offers or displays for sale a
second-hand motor vehicle (other than a motor cycle) complies with this
section if:
(a)
a dealer’s notice containing a defect
notice specifying the defects and condition of the motor vehicle, and a
current inspection report, are attached to the motor vehicle at all material
times when the motor vehicle is offered or displayed for sale,
and
(b)
at or before the sale, the motor dealer and the
purchaser sign the dealer’s notice, or a copy of the notice,
and
(c)
the motor dealer gives the purchaser the notice,
or a copy, to keep.
(3)
A motor dealer who offers or displays for sale a
second-hand motor cycle complies with this section if, at or before the
sale:
(a)
the motor dealer and the purchaser sign a
dealer’s notice containing a defect notice specifying the defects and
condition of the motor cycle, or a copy of the notice, and the motor dealer
gives the purchaser the notice, or a copy, to keep, and
(b)
the motor dealer gives the purchaser a current
inspection report, or a copy, to keep.
(4)
The dealer guarantee continues to apply to a
defective vehicle, despite this section, for a defect that:
(a)
is not specified in a dealer’s notice under
this section, or
(b)
is so specified but that is not also specified in
an inspection report given under this section.
(5)
The purchaser of a motor vehicle that is not
subject to a dealer guarantee because of this section may recover, as a debt
due to the purchaser by the motor dealer, the difference between the
reasonable cost of repairing any defect specified in the dealer’s notice
and the amount estimated in that notice as the reasonable cost of that
repair.
75Other motor dealer not
liable
A holder of a motor dealer’s licence is not
liable for a dealer guarantee for a motor vehicle sold on behalf of the holder
by another motor dealer.
76Motor dealer liable for loss
or damage during guarantee repairs
(1)
This section applies if a motor vehicle is
delivered to a motor dealer for the purposes of assessing liability for, or
complying with, the dealer guarantee for the motor
vehicle.
(2)
The motor dealer is liable for any loss of or
damage to the motor vehicle that occurs between the delivery of the motor
vehicle to the motor dealer by the person and the delivery by the motor dealer
of the motor vehicle to the person, whether or not the loss or damage occurred
while the motor vehicle was in the possession of the motor dealer or any
employee or other person associated with the motor
dealer.
(3)
A motor dealer is not liable under this section
if the motor dealer proves that the motor dealer took all reasonably
practicable measures to prevent the loss or damage.
77Effect on Australian Consumer
Law remedies
A person who has enforced the dealer guarantee
under this Division in respect of the condition of or a defect in a motor
vehicle is not, if the dealer guarantee is fully complied with, entitled to
take action against the motor dealer under the Australian Consumer Law
(NSW) in respect of any aspect of the motor vehicle that
is made good or repaired under this Division.
Division 5Dealer-financed purchases of
motor vehicles
78Application of Division to
dealer-financed purchases
(1)
This Division applies to the purchase of a motor
vehicle from a motor dealer if the purchaser obtains credit, for the purpose
of financing the whole or part of the purchase, from the motor dealer or a
person who is a linked credit provider of the motor
dealer.
(2)
This Division does not apply to or in respect of
the following motor vehicle sales:
(a)
a sale by a motor dealer to another motor dealer,
a financier or a motor vehicle recycler,
(b)
a sale at a bona fide
auction,
(c)
a sale of a vehicle intended to be used
predominantly for business or other commercial purposes,
(d)
a sale where the provision of credit by a linked
credit provider of the motor dealer to the purchaser is not arranged or
facilitated by the motor dealer.
79Definitions
In this Division:
tied loan
contract has the same meaning as it has in the National
Credit Code.
trade-in means a motor vehicle given
or agreed to be given by a purchaser under a contract for the purchase of
another motor vehicle in consideration for the whole or part of the purchase
price.
80Cooling off period for
dealer-financed purchases
In this Division, the cooling off period for the purchase
of a motor vehicle is the period commencing when the purchaser enters into the
contract for the purchase of the motor vehicle from the motor dealer and
ending:
(a)
at 5pm on the next day that the motor dealer
carries on business with the public, or
(b)
if the motor dealer closes for business before
5pm on that day, at the close of business on the next day that the dealer is
open for business following that day.
81Right to terminate contract
during cooling off period
(1)
A purchaser may terminate a contract for the
purchase of a motor vehicle to which this Division applies by notice in
writing given to the motor dealer during the cooling off period for the
purchase.
(2)
Despite any other law, the purchaser is not
entitled to possession of the motor vehicle during the cooling off period,
unless the purchaser and the dealer otherwise agree.
(3)
The right to terminate a contract may be
exercised even though the purchaser has taken delivery of the motor vehicle
concerned.
(4)
A contract for the purchase of a motor vehicle to
which this Division applies must contain a provision, in the form prescribed
by the regulations, setting out the purchaser’s rights under this
Division and the effect of this Division.
(5)
A notice of termination by a purchaser must be
signed by the purchaser or the purchaser’s Australian legal
practitioner.
(6)
The cooling off period may be extended by a
provision in the contract of sale or by agreement with the motor
dealer.
82Waiver of cooling off
period
(1)
A purchaser may waive a right to terminate a
contract under this Division if:
(a)
the purchaser signs a waiver in the form
prescribed by the regulations, and
(b)
any applicable requirements of the regulations
are complied with.
(2)
Regulations may be made for or with respect to
requirements for waivers under this section.
83Motor dealer may not dispose
of trade-in during cooling off period
(1)
A motor dealer must not sell, give in exchange or
otherwise dispose of a trade-in or any interest in or related to a trade-in,
given or agreed to be given by a purchaser under a contract for a purchase to
which this Division applies during the cooling off period for the
purchase.
Maximum penalty: 20 penalty
units.
(2)
This section does not render a sale or other
transaction relating to a trade-in referred to in subsection (1)
unenforceable.
84Obligations of motor dealer on
termination
(1)
On termination of a contract under this Division,
the motor dealer must:
(a)
pay to the purchaser all money received by the
motor dealer under the contract, less any money that the purchaser is liable
to pay under this Division, and
(b)
return to the purchaser any trade-in under the
contract.
(2)
On termination of a contract under this Division,
a motor dealer who is in possession of a trade-in must return the motor
vehicle to the purchaser and is liable to the purchaser for any damage to the
motor vehicle while it was in the motor dealer’s possession, other than
fair wear and tear.
85Obligations of purchaser on
termination
(1)
On termination of a contract under this Division,
the purchaser must:
(a)
pay to the motor dealer $250 or 2% of the
purchase price, whichever is the lesser, and
(b)
repay to the motor dealer any amount paid by the
motor dealer in respect of a trade-in.
(2)
On termination of a contract under this Division,
a purchaser who accepted delivery of the motor vehicle before the termination
is liable to the motor dealer for any damage to the motor vehicle while it was
in the purchaser’s possession, other than fair wear and
tear.
86Return of motor
vehicles
A purchaser or motor dealer is not required to
return a motor vehicle as required by this Division if the purchaser or motor
dealer is unable to return it because of a defect in the motor vehicle, not
caused by the purchaser or motor dealer, that has rendered it incapable of
being driven or unroadworthy. The purchaser or motor dealer must, however,
permit the collection or arrange for the collection of the motor
vehicle.
87Termination of tied loan
contracts
(1)
On termination of a contract under this Division,
any tied loan contract is terminated.
(2)
The regulations may make provision for or with
respect to the termination of the tied loan contract.
Division 6Sales of motor vehicles on
consignment
88Definitions
In this Division:
consignor means a person from whom a
motor dealer receives motor vehicles for sale on consignment.
trust
account means a trust account required by this Division to
be maintained by a motor dealer.
89Motor dealer must notify
consignment sales
(1)
A motor dealer who proposes to commence to sell
motor vehicles on consignment must give the Secretary notice in writing of
that intention.
Maximum penalty: 20 penalty
units.
(2)
A notification by the motor dealer in an
application for a motor dealer’s licence or to renew a motor
dealer’s licence that is made before a motor dealer commences to sell
motor vehicles on consignment is sufficient notice for this
section.
90Trust account to be
established
A motor dealer must maintain a trust account at
an authorised deposit-taking institution in New South Wales in respect of
amounts received for vehicles for sale on consignment.
Maximum penalty: 20 penalty
units.
91Payment of consignment sale
amounts to trust account
A motor dealer who receives a motor vehicle for
sale on consignment from a consignor must pay an amount equal to the value of
the consideration received by the motor dealer for the motor vehicle to the
trust account in respect of that consignor not later than on the next business
day of the authorised deposit-taking institution after receiving the
consideration.
Maximum penalty: 20 penalty
units.
92Application of money in
dealer’s trust account
(1)
A motor dealer must not apply money held in a
trust account except for the following purposes:
(a)
paying an amount payable to the consignor in
respect of the motor vehicle,
(b)
satisfying a debt due to the motor dealer from
the consignor in respect of commission or other charges,
(c)
paying the motor dealer an amount to which the
motor dealer is entitled that was paid to the trust account but was not
required to be paid to the trust account under this
Division,
(d)
a purpose approved in writing by the
Secretary,
(e)
a purpose prescribed by the
regulations.
Maximum penalty: 20 penalty
units.
(2)
Money held in a trust account is not available
for payment of the debts of a motor dealer or liable to be taken in execution
under the order or process of a court, except as provided by this Division or
the regulations.
(3)
This Division does not take away or affect any
just claim or lien that a person has against or on any money received from the
sale of a motor vehicle on consignment.
93Protection of authorised
deposit-taking institutions from liability
(1)
An authorised deposit-taking institution is not
liable to any person merely because the institution failed to secure
compliance with any provision of this Division or the regulations relating to
the keeping of trust accounts and the withdrawal of money from trust
accounts.
(2)
An authorised deposit-taking institution does not
have any recourse or right against money standing to the credit of a trust
account in respect of any liability of the motor dealer to the institution
(not being a liability in connection with that account).
94Period for accounting to
consignor
A motor dealer must account to a consignor in
respect of the proceeds of sale on consignment of a motor vehicle within 14
days, or such other period as may be prescribed by the regulations, after the
sale of the motor vehicle.
Maximum penalty: 20 penalty
units.
95Audit of dealer’s trust
account
(1)
A motor dealer must ensure that each trust
account of the motor dealer is audited annually.
Maximum penalty: 20 penalty
units.
(2)
The regulations may make provision for or with
respect to the auditing of trust accounts, including the information and
matters to be contained in any auditor’s report.
96Special audit of
dealer’s trust account
The Secretary may, by notice in writing to a
motor dealer, require the motor dealer to take the following action if the
Secretary is of the opinion that the circumstances of the motor dealer’s
business warrant it:
(a)
to obtain and to furnish to the Secretary a
report of an auditor relating to a trust account of the motor dealer
containing such information and matters as the Secretary may
specify,
(b)
to lodge with the Secretary a guarantee from an
authorised deposit-taking institution in favour of the Secretary (in a form
approved by the Secretary) or such other security as may be specified by the
Secretary in respect of the sale on consignment of motor vehicles by the
dealer.
Division 7Obligations of motor vehicle
recyclers
97Number-plates on motor
vehicles acquired by motor vehicle recyclers
(1)
This section applies to the following motor
vehicles acquired by a motor vehicle recycler:
(a)
a motor vehicle that is to be demolished or
dismantled by the motor vehicle recycler,
(b)
a substantially demolished or dismantled motor
vehicle.
(2)
If a number-plate is attached to a motor vehicle
to which this section applies when it is acquired, the motor vehicle recycler
must surrender the number-plate to Roads and Maritime Services as soon as
practicable after acquiring the motor vehicle.
(3)
A motor vehicle recycler must not offer for sale
or sell a motor vehicle to which this section applies if a number-plate is
attached to the motor vehicle.
Maximum penalty: 20 penalty
units.
98Sale of motor vehicles by
motor vehicle recyclers
A motor vehicle recycler must not offer or
display for sale or sell a motor vehicle, other than the following motor
vehicles:
(a)
a motor vehicle that has been demolished or
dismantled by the motor vehicle recycler,
(b)
a substantially demolished or dismantled motor
vehicle,
(c)
a motor vehicle acquired and predominantly used
by the motor vehicle recycler or an employee of the motor vehicle recycler for
private use,
(d)
a motor vehicle predominantly used for the
purposes of the motor vehicle recycler’s
business.
Maximum penalty: 20 penalty
units.
99Certain parts or accessories
to be marked
(1)
This section applies to parts or accessories of a
kind prescribed by the regulations for the purposes of this
section.
(2)
A motor vehicle recycler must, as soon as
practicable after demolishing or dismantling a motor vehicle, mark each part
or accessory obtained from the motor vehicle in the manner prescribed by the
regulations.
(3)
A motor vehicle recycler must, as soon as
practicable after acquiring a part of a motor vehicle or accessory, mark the
part or accessory in the manner prescribed by the
regulations.
Maximum penalty: 20 penalty
units.
Division 8Record keeping
obligations
100Registers must be kept by
motor dealers, motor vehicle recyclers and motor vehicle
repairers
(1)
The holder of a motor dealer’s licence, a
motor vehicle recycler’s licence or a motor vehicle repairer’s
licence must keep or cause to be kept a register relating to the
holder’s business.
(2)
If required by the regulations, the licence
holder must keep or cause to be kept separate registers for specified
matters.
(3)
A register is to be in the form, and contain the
particulars, prescribed by the regulations and to be kept at the place or
places prescribed by the regulations.
(4)
The entries in a register kept under this section
must be made within the period (if any) specified by the
regulations.
(5)
A licence holder who fails to keep or cause to be
kept a register in accordance with this section is guilty of an
offence.
Maximum penalty: 20 penalty
units.
Division 9Suspicious
goods
101Duty to report suspicious
goods
A licence holder or any employee of a licence
holder who suspects for any reason that a motor vehicle, motor vehicle part,
accessory or any other thing that is in the licence holder’s custody, or
that is offered to the licence holder for sale, in the course of the licence
holder’s business may have been stolen or unlawfully obtained must
without unreasonable delay inform the Secretary of the
suspicion.
Maximum penalty: 20 penalty
units.
102Retention of suspicious
goods
(1)
An authorised officer who has reasonable grounds
for believing that a motor vehicle, motor vehicle part, accessory or any other
thing that is in the possession of a licence holder has been stolen or is
unlawfully obtained may issue a non-disposal notice to the licence
holder.
(2)
A non-disposal notice is a notice that
prohibits the licence holder, for a period of 14 days after the notice is
given, from altering the form of the thing, selling or otherwise disposing of
it in any way or parting with possession of it.
(3)
The Local Court may, on application by an
authorised officer, order that the effect of a non-disposal notice be extended
for a further period of up to 28 days. More than one application may be made
under this subsection.
(4)
A licence holder, or an employee of a licence
holder, must not contravene a notice given under this section.
Maximum penalty: 500 penalty
units.
Division 10Motor vehicle brokers’
obligations
103Motor vehicle brokers’
obligations
(1)
A person is a motor
vehicle broker for the purposes of this Act if the person
carries on the business (other than as a retailer or on a wholesale basis or
as a financier) of negotiating on behalf of other persons for the purchase of
motor vehicles by those persons and of advising other persons on the purchase
of motor vehicles.
(2)
A motor vehicle broker must disclose to any
person to whom the person provides services in the course of business as a
motor vehicle broker:
(a)
whether the motor vehicle broker has a financial
or other business relationship with the supplier of a motor vehicle in
relation to which the services are provided, and
(b)
whether the motor vehicle broker receives a fee
or other consideration from the supplier arising out of the provision of those
services.
(3)
The disclosure must be made before the motor
vehicle broker provides services in that capacity.
(4)
A motor vehicle broker who fails to comply with
this section is guilty of an offence.
Maximum penalty: 20 penalty
units.
Part 5Remedies relating to conduct
by motor dealers, motor vehicle repairers and motor vehicle
recyclers
Division 1Unjust conduct by motor
dealers, motor vehicle repairers and motor vehicle
recyclers
104Application of
Division
This Division applies to the holder of a motor
dealer’s licence, a motor vehicle repairer’s licence or a motor
vehicle recycler’s licence.
105Meaning of “unjust
conduct”
For the purposes of this Division, conduct of a
licence holder is unjust
conduct if it is conduct:
(a)
that is dishonest or unfair,
or
(b)
that consists of anything done, or omitted to be
done, in breach of contract, whether or not proceedings in respect of the
breach have been brought, or
(c)
that consists of the contravention of this Act or
the regulations or any other Act or regulation administered by the Minister,
or
(d)
that consists of a failure to comply with a
condition or restriction to which the licence is subject or an order of the
Tribunal applicable to the holder.
106Undertakings by licence
holder
(1)
If it appears to the Secretary that a licence
holder has, in the course of business, repeatedly engaged in unjust conduct,
the Secretary may, with the consent of the Minister:
(a)
request the licence holder to execute a deed in
terms approved by the Secretary under which the licence holder gives
undertakings as to:
(i)
the discontinuance of the unjust conduct,
and
(ii)
the licence holder’s future conduct,
and
(iii)
the action the licence holder will take to
rectify the consequences of the licence holder’s unjust conduct,
or
(b)
apply to the Tribunal under this
Division.
(2)
If the Secretary makes a request or application
under this section, it is presumed, unless the contrary is proved, that the
Secretary does so with the authority of the Minister.
(3)
The following actions must not be taken against a
licence holder, in respect of conduct the subject of undertakings in a deed
approved under this section, if the licence holder observes the
undertakings:
(a)
disciplinary action under this
Act,
(b)
an application to the Tribunal for an order under
this Division.
(4)
A licence holder who executes a deed under this
Division must observe the undertakings given by the licence holder in the
deed.
Maximum penalty: 20 penalty
units.
(5)
A prosecution for an offence under subsection (4)
may be instituted only by the Secretary with the leave of the Tribunal given
when making an order under section 108.
107Register of
Undertakings
(1)
The Secretary must lodge a copy of any deed
executed under this Division with the Registrar of the Tribunal and give a
copy of the deed to the licence holder who executed it.
(2)
The Secretary must retain all deeds executed
under this Division and register the deeds in a Register of Undertakings kept
by the Secretary and containing the particulars prescribed by the
regulations.
108Restraint of unjust
conduct
(1)
The Tribunal may, on the application of the
Secretary, order a licence holder to refrain from engaging in unjust conduct
in the course of carrying on business as a motor dealer, motor vehicle
repairer or motor vehicle recycler, if it is satisfied after inquiry that a
licence holder has repeatedly engaged in unjust conduct.
(2)
The Tribunal may, on the application of the
Secretary, if it is satisfied that a licence holder has failed to observe an
undertaking given by the licence holder in a deed executed under this
Division:
(a)
order the licence holder to refrain from engaging
in unjust conduct in the course of carrying on business as a motor dealer,
motor vehicle repairer or motor vehicle recycler, and
(b)
in the case of an undertaking relating to action
to rectify the consequences of the licence holder’s unjust conduct,
order the licence holder to observe the undertaking within the time specified
by the Tribunal in the order.
(3)
If the licence holder is a body corporate and the
Tribunal is satisfied that the unjust conduct or breach of undertaking
concerned was engaged in with the consent or connivance of a person who, at
the time of the conduct or breach was a director of, or a person concerned in
the management of, the body corporate, the Tribunal may make an order
prohibiting the person from consenting to, or conniving at, engagement in
unjust conduct, or a breach of an undertaking under this Division, by the body
corporate or any other body corporate of which the person is a director or in
the management of which the person is concerned.
(4)
An order under this section may be made subject
to such conditions as the Tribunal thinks fit.
(5)
Without limiting subsection (4), the Tribunal may
impose conditions of the following kinds:
(a)
conditions as to the duration of the
order,
(b)
conditions as to the future conduct of the person
subject to the order,
(c)
conditions specifying the action to be taken by
the licence holder to rectify the consequences of the licence holder’s
conduct.
109Variation or discharge of
restraining order
The Tribunal may, on the application of the
Secretary, vary or discharge an order made under this
Division.
Division 2Disputes
110Definitions
In this Division:
complainant means a purchaser or
owner of a motor vehicle who applies to have a dispute investigated under this
Division.
motor
dealer includes a person who was a motor dealer when the
events the subject of a dispute to which this Division applies
occurred.
motor
vehicle repairer includes a person who was a motor vehicle
repairer when the events the subject of a dispute to which this Division
applies occurred.
111Disputes to which Division
applies
(1)Motor dealer
disputes
This Division applies to disputes between motor
dealers and purchasers and owners of motor vehicles arising out of the
application of this Act, including (but not limited to) the following:
(a)
the existence or extent of any obligation under
Division 4 of Part 4 on the part of the motor dealer to the purchaser or the
owner,
(b)
the manner of carrying out any such
obligation,
(c)
the amount of the fair cost of repairing or
making good any defect referred to in a defect
notice.
(2)Repair
disputes
This Division applies to disputes between motor
vehicle repairers and owners of motor vehicles arising out of the application
of this Act, including (but not limited to) the following:
(a)
the manner in which any repair work has been
done,
(b)
the fair cost owed by the owner to the repairer
for the carrying out of any repair work.
(3)Excluded
disputes
An application cannot be made or dealt with under
this Division in relation to a matter in dispute if:
(a)
proceedings in respect of the matter have been
commenced in a court or tribunal and have not been discontinued before being
finally determined, or
(b)
the matter has been previously dealt with under
this Division.
112Investigation of
disputes
(1)
A purchaser or owner of a motor vehicle who is a
party to a dispute to which this Division applies may apply to the Secretary
to investigate the dispute.
(2)
The Secretary is to use the Secretary’s
best endeavours by communication with the parties to the dispute, or
otherwise, to settle the dispute.
(3)
If the Secretary is unable to settle the dispute,
the Secretary is to investigate the dispute.
(4)
The Secretary may determine the procedure for the
purpose of investigating the dispute.
113Secretary may make
rectification order
(1)
If, after completing an investigation under this
Division, the Secretary is satisfied:
(a)
that any work done or required to be done by or
on behalf of a motor dealer to make good or repair a motor vehicle so as to
comply with the dealer guarantee has not been done or is incomplete or
defective, or
(b)
that any repair work done by a motor vehicle
repairer is incomplete or defective,
the Secretary may serve a written order (a rectification order) on the motor
dealer or motor vehicle repairer requiring the motor dealer or motor vehicle
repairer to take such steps as are specified in the order to ensure that the
work is completed or the defect rectified.
(2)
A rectification order:
(a)
may specify conditions (including conditions with
respect to the payment of money) to be complied with by the complainant before
the requirements of the order must be complied with, and
(b)
must specify a date by which the requirements of
the order must be complied with, subject to the complainant’s compliance
with any such condition.
114Effect of rectification
order
(1)
Except as provided by this Act, a rectification
order does not give rise to any rights or obligations.
(2)
A rectification order ceases to have effect for
the purposes of being a ground for disciplinary action under this Act if the
matter giving rise to the order becomes the subject of an action before the
Tribunal.
Note—
Contravention of a rectification order is a
ground for taking disciplinary action against a licence
holder.
Division 3Rescission of motor vehicle
sales and other orders
115Definitions
In this Division:
cash
price of a motor vehicle means the sum of the price (if any)
at which the vehicle is sold and the amount of the value of any other vehicle
or other thing that comprises the whole or part of the consideration for the
sale. The value is the value given to the vehicle or other thing by the
parties to the sale or, if no value is so given, the market value of the
vehicle or other thing at the time of the sale.
rescission order means an order made
under section 117 or 118.
116Conferral of jurisdiction on
courts
The following courts have jurisdiction to make a
rescission order in relation to the sale of a motor vehicle:
(a)
the Local Court in the exercise of its
jurisdiction under Part 3 of the Local Court Act
2007, if the cash price for which the motor vehicle was
sold does not exceed the jurisdictional limit of the Local Court when sitting
in its General Division within the meaning of that Act,
(b)
the District Court, if the cash price for which
the motor vehicle was sold does not exceed the amount for the time being
specified in section 44 (1) (a) of the District Court
Act 1973,
(c)
the Supreme Court.
117Rescission
orders
(1)
A court may, on application by the Secretary, if
it is satisfied that a ground for making the order has been made out, make an
order that:
(a)
the sale of a motor vehicle by a motor dealer is
rescinded and that the motor vehicle must be returned to the motor dealer,
and
(b)
any amount paid or the value of other
consideration given by the purchaser for the motor vehicle must be returned to
the purchaser, subject to any financial adjustment between the motor dealer
and the purchaser that the court thinks fit to
make.
(2)
The court may also make any other ancillary or
consequential orders it thinks fit, including an order as to payment of the
costs of the application.
(3)
The grounds for making a rescission order are as
follows:
(a)
an inspection report, receipt or declaration
required to be attached to the motor vehicle under Division 2 of Part 4 was
not attached at all material times when the motor vehicle was offered or
displayed for sale by the motor dealer,
(b)
a dealer’s notice, or a copy of a
dealer’s notice, was not given to the purchaser in accordance with the
applicable requirements of Division 3 of Part 4,
(c)
the particulars included in a dealer’s
notice relating to the motor vehicle were, in the opinion of the court, false
or misleading in a material particular,
(d)
the body of, or mechanical equipment in, the
motor vehicle was at the time it was sold by the motor dealer in such a
condition that, in the opinion of the court, it is not practicable to comply
with the dealer guarantee for the motor vehicle.
(4)
An appeal lies to the Supreme Court against a
rescission order made under this section:
(a)
by the Local Court as if it were exercising
jurisdiction under Part 3 of the Local Court Act
2007, and
(b)
by the District Court as if it were exercising
jurisdiction under the District Court Act
1973.
118Rescission orders after
findings of guilt
(1)
If a motor dealer is found guilty of an offence
under Part 4, the Local Court may, in addition to any other penalty it
imposes, make an order that:
(a)
the sale of a motor vehicle by a motor dealer is
rescinded and that the motor vehicle must be returned to the motor dealer,
and
(b)
any amount paid or the value of other
consideration given by the purchaser for the motor vehicle must be returned to
the purchaser, subject to any financial adjustment between the motor dealer
and the purchaser that the Court thinks fit to
make.
(2)
The Local Court must not make a rescission order
under this section if the cash price for which the motor vehicle was sold
exceeds the jurisdictional limit of the Local Court when sitting in its
General Division.
119Difficulty of restoring
position no bar to rescission order
Despite any other law, it is not a bar to the
making of a rescission order that the parties under any contract or agreement
relating to the sale of the motor vehicle or under any credit contract
associated with the sale cannot be restored to the positions that existed
before the sale because of the time that has elapsed since the date of the
sale or the circumstances that have occurred since that
date.
120Effect of rescission orders on
rights
(1)
On the rescission of the sale of a motor vehicle
under this Division, the liabilities and rights of the purchaser of the motor
vehicle under a credit contract under which credit is provided by a person who
is a linked credit provider of the motor dealer for the purpose of financing
the whole or part of the purchase:
(a)
are, by force of this section, transferred to the
motor dealer, and
(b)
subject to this section, may be enforced against
the motor dealer as if the motor dealer were the
purchaser.
(2)
On the rescission of the sale of a motor vehicle
under this Division, the rights and liabilities of the parties to the contract
for the sale of the motor vehicle or any such credit contract are, despite any
other law, as specified in the rescission order and any ancillary or
consequential orders.
121Secretary and others have
right to be heard before rescission order
A court must not make a rescission order unless
it has given the Secretary or a representative of the Secretary, and any other
person likely to be affected by the order, an opportunity to be
heard.
Division 4Penalties for unlicensed motor
dealers and motor vehicle recyclers
122Definitions
In this Division:
forfeiture order means an order made
under section 123 (1) (a).
proceeds
order means an order made under section 123 (1)
(b).
restraining order means an order
made under section 125 (1).
123Forfeiture of motor vehicles
and proceeds by unlicensed motor dealers and motor vehicle
recyclers
(1)
A court that convicts a person of an offence
under section 11 or 13 may, in addition to any other penalty it may impose,
make one or more of the following orders:
(a)
an order that any specified motor vehicle to
which the offence relates is forfeited to the Crown,
(b)
an order that the person pay to the Crown an
amount, as assessed by the court, equal to the proceeds derived by the person
from the commission of the offence or any other offence to which this section
applies and which the court has taken into account in imposing any such
penalty.
(2)
Before making a forfeiture order or a proceeds
order, the court may require notice to be given to, and may hear, such persons
as the court thinks fit.
(3)
For the purposes of making a proceeds order
against a person, the court may:
(a)
take into account such matters as the court
thinks fit, and
(b)
to the extent specified by the court—treat
any interest in real or personal property acquired by the person by means of
proceeds derived by the person from the commission of an offence as proceeds
derived by the person from the commission of the offence,
and
(c)
treat the equivalent, in monetary value, of any
interest in real or personal property derived by the person from the
commission of an offence as proceeds derived by that person from the
commission of the offence.
(4)
An amount payable under a proceeds order is to be
paid to the Compensation Fund.
(5)
The amount payable under a proceeds order may, by
leave of the court by which it was made, and regardless of the amount ordered
to be paid, be recovered as a judgment debt in that
court.
124Appeals against forfeiture and
proceeds orders
(1)
A person who has an interest in a motor vehicle
the subject of a forfeiture order may appeal against the order in the same
manner as if the order were, or were part of, an order imposing a penalty in
respect of the offence (whether or not the person was convicted of the offence
that resulted in the order).
(2)
A person against whom a proceeds order is made
may appeal against the order in the same manner as if it were, or were part
of, an order imposing a penalty in respect of the offence that resulted in the
order.
(3)
The court to which an appeal is made in respect
of a forfeiture order may, pending the hearing and determination of the
appeal, make such orders as it thinks fit for the custody of the motor vehicle
the subject of the order.
(4)
On appeal, a forfeiture order or a proceeds order
may be confirmed, revoked or varied.
125Temporary restraint on
disposition of property
(1)
A court before which proceedings are being taken
against a person for an offence under section 11 or 13 or that makes a
proceeds order against a person may, by order, prohibit, except as is
specified in the order:
(a)
the person (the offender) from disposing of or
otherwise dealing with any interest in specified property,
and
(b)
any other specified person from disposing of or
otherwise dealing with any interest in specified property:
(i)
that belongs to the offender and in respect of
which the offender has a power of attorney from that person or any other power
of disposition, or
(ii)
that the specified person holds for or on behalf
of the offender.
(2)
Without affecting any power conferred on it by
subsection (1), the Supreme Court may at any time make a restraining order
against a person:
(a)
in respect of whom any other court may make such
an order, or
(b)
whom any other court has committed for trial or
for sentence.
(3)
Before making a restraining order, a court may
require notice to be given to, and may hear, such persons as it thinks
fit.
(4)
Any person who holds an interest in property the
subject of a restraining order may apply for the revocation or variation of
the order.
(5)
A restraining order may be revoked or varied by
the Supreme Court or:
(a)
if proceedings in respect of the offence are
being taken—by the court before which those proceedings are being taken,
or
(b)
in any other case—by the court before which
proceedings in respect of the offence were last
taken.
(6)
A person must not, without reasonable excuse,
fail to comply with a restraining order.
Maximum penalty: 20 penalty units or imprisonment
for 6 months, or both.
Division 5Administration of motor
dealers and motor vehicle recyclers
126Definitions
In this Division:
administration means an
administration under this Division.
administrator means an administrator
of the affairs and property of a person holding office under this
Division.
affairs of a person means the
person’s affairs relating to the carrying on of a business authorised to
be carried on by a licence or a former licence held by the
person.
person
subject to administration means a person for whose affairs
and property an administrator is appointed under this Division.
property of a person means the
following:
(a)
property held by the person, or by an employee or
agent of the person, in the course of or in connection with a business the
subject of an administration, whether or not the property is held on behalf of
another person,
(b)
property that would, but for the appointment of
an administrator, be receivable by the person after the appointment whether on
behalf of the person or another person,
(c)
interest, dividends or other income received by
the administrator and arising from property held by the administrator as
administrator,
(d)
records kept by or on behalf of the person in
connection with a business the subject of an
administration.
127Appointment of administrator
for holder of licence
(1)
The Supreme Court may, on the application of the
Secretary, make an order appointing an administrator of the affairs and
property of a licence holder if the Court is satisfied that:
(a)
any ground exists on which the licence
holder’s licence may be suspended or cancelled under this Act,
or
(b)
the licence holder has repeatedly engaged in
unjust conduct within the meaning of Division 1, or
(c)
it is desirable in the public interest, having
regard to the circumstances of the licence holder, to do
so.
(2)
The Supreme Court may suspend or cancel the
licence of any person subject to an order under this
section.
128Appointment of administrator
for former holder of licence
(1)
The Supreme Court may, on the application of the
Secretary, make an order appointing an administrator of the affairs and
property of a person whose motor dealer’s licence or motor vehicle
recycler’s licence has been suspended or cancelled on being satisfied
that the appointment is necessary or desirable in order to protect the
interests of persons with whom that person has had
dealings.
(2)
An application for administration under this
section must be made:
(a)
not later than 12 months after the date on which
the licence was suspended or cancelled, and
(b)
in the case of a suspension, before the
suspension is removed or expires.
129Notification of appointment of
administrator
(1)
The Secretary must give a copy of the order
appointing an administrator of the affairs and property of a person to the
person, and to any other person directed by the Supreme Court, as soon as
practicable after the order is made.
(2)
The Secretary is not required to give a copy of
an order to a person if:
(a)
the Supreme Court dispensed with service,
or
(b)
the person appeared, or was represented, in
proceedings for the appointment of the
administrator.
130Functions of
administrator
Schedule 1 contains provisions relating to the
functions of an administrator and the conduct of an
administration.
131Obstruction of
administrator
A person must not, without reasonable excuse,
obstruct, hinder or delay an administrator in the exercise of the
administrator’s functions under this Act.
Maximum penalty: 20 penalty
units.
132Vacation of office by
administrator
The office of an administrator becomes vacant if
the administrator:
(a)
dies, or
(b)
has his or her appointment revoked by the Supreme
Court, or
(c)
becomes bankrupt, applies to take the benefit of
any law for the relief of bankrupt or insolvent debtors, compounds with his or
her creditors or makes an assignment of his or her remuneration for their
benefit, or
(d)
becomes a mentally incapacitated person,
or
(e)
is convicted in New South Wales of an offence
that is punishable by imprisonment for 12 months or more or is convicted
elsewhere than in New South Wales of an offence that, if committed in New
South Wales, would be an offence so punishable.
133Revocation of appointment of
administrator
(1)
The Supreme Court may, on the application of an
administrator or on the application of the Secretary, make an order revoking
the appointment of the administrator.
(2)
The Supreme Court may, on the application of a
person subject to administration, make an order revoking the appointment of
the administrator if it is satisfied that the purpose for which that
administrator was appointed has been fulfilled.
(3)
If an administrator of the affairs and property
of a person has vacated office, the Supreme Court may, on the application of
the Secretary, make an order appointing another person as administrator, if
the Supreme Court is satisfied that the purpose for which the former
administrator was appointed has not yet been fulfilled.
134Transfer of property under
administration after revocation
(1)
If the Supreme Court revokes the appointment of
an administrator and is satisfied that the purpose for which the former
administrator of the affairs and property of a person was appointed has been
fulfilled, the Supreme Court may make an order vesting in or transferring to
the person any property held in trust for the person by the
administrator.
(2)
If the Supreme Court appoints a new administrator
and is satisfied that the purpose for which the former administrator of the
affairs and property of a person was appointed has not been fulfilled, the
Supreme Court is to make an order vesting in or transferring to the new
administrator any property held in trust for the person by the former
administrator.
(3)
The Supreme Court may make an order under this
section on its own motion or on an application for the revocation of
appointment of the administrator.
135Transfer of property under
administration after vacation without revocation
(1)
An application may be made to the Supreme Court
by a person subject to administration if:
(a)
the administrator has vacated office, other than
because the appointment is revoked, and
(b)
an order for the appointment of a new
administrator has not been made, and
(c)
the application is made not earlier than 14 days
after the administrator vacated office.
(2)
The Supreme Court may, on application under this
section, make an order vesting in or transferring to the person any property
held in trust for the person by the former
administrator.
136Orders to provide for payment
of administrator’s costs
An order by the Supreme Court under this Division
that vests in or transfers property to a person who was subject to
administration is to provide for the payment of the costs of the former
administrator by the person:
(a)
to the former administrator,
or
(b)
to the Compensation Fund, if the costs were paid
by the Secretary from that Fund.
137Power of Supreme Court to make
certain orders
The Supreme Court may, on the application of the
administrator and without derogating from any other provision of this Division
or Schedule 1, make orders authorising an administrator to do such things as
the Court thinks fit for the purpose of enabling the administrator to
administer the affairs and property of the person subject to
administration.
138Person entitled to be
heard
A person who is the subject of an application for
the appointment of an administrator or who is subject to an application made
by the Secretary to revoke the administration to which the person is subject
or to appoint a new administrator is:
(a)
unless the Supreme Court dispenses with service,
entitled to be served with a copy of the originating process,
and
(b)
entitled to appear and be heard at the hearing of
the application, either personally or by an Australian legal
practitioner.
139Improper withdrawal of money
etc
(1)
A person must not, with the intention of
defeating the purposes of this Division:
(a)
withdraw money from, or make any payment out of,
any account kept by or on behalf of a licence holder or a person whose licence
is cancelled or suspended, or
(b)
destroy or conceal, or remove from one place to
another, or deliver into the possession or control of any other person, any
property in relation to which an administrator is subsequently
appointed.
(2)
A person must not, after being notified or
becoming aware of the appointment of an administrator and without the
authority of the administrator:
(a)
withdraw money from, or make any payment out of,
any account kept by or on behalf of a person subject to administration,
or
(b)
destroy or conceal, or remove from one place to
another, or deliver into the possession or control of any other person, any
property of a person subject to administration.
Maximum penalty: 20 penalty units or imprisonment
for 12 months, or both.
140Application to Supreme Court
for directions
(1)
The following persons may apply to the Supreme
Court for directions as to the manner in which an administrator is required to
exercise the functions conferred on the administrator by this Act, either
generally or with respect to any particular matter specified in the
application:
(a)
an administrator,
(b)
the person who is subject to the
administration,
(c)
any person who has submitted a claim to the
administrator in relation to any property being administered by the
administrator.
(2)
On the hearing of an application, the Supreme
Court may, by order, give any directions that it considers to be appropriate
in the circumstances of the case.
Part 6Unfair contracts and unjust
conduct affecting motor dealers
141Definitions
In this Part:
distributor means a person
who:
(a)
imports new motor vehicles into Australia,
or
(b)
distributes new motor vehicles (whether assembled
or manufactured in or outside Australia).
manufacturer means an assembler or
manufacturer or distributor of motor vehicles (whether assembled or
manufactured in or outside Australia) who supplies those motor vehicles for
sale by a motor dealer and includes any person, or member of a class of
persons, prescribed by the regulations for the purposes of this
definition.
motor
industry group means a body, approved by the Secretary for
the purposes of this Part, that represents motor dealers.
supply
contract means a contract (including any documents forming
part of, or referred to in, the contract) between a manufacturer and a motor
dealer for the supply of motor vehicles by the manufacturer to the motor
dealer for sale by the motor dealer.
142Unfair
contracts
(1)
A term of a supply contract is unfair for the purposes of this Part
if:
(a)
it would cause a significant imbalance in the
parties’ rights and obligations arising under the contract,
and
(b)
it is not reasonably necessary in order to
protect the legitimate interests of the party who would be advantaged by the
term, and
(c)
it would cause detriment (whether financial or
otherwise) to a party if it were to be relied on.
(2)
Without limiting subsection (1), the following
are examples of terms of supply contracts that may be unfair:
(a)
a term that permits, or has the effect of
permitting, one party (but not another party) to avoid or limit performance of
the contract,
(b)
a term that permits, or has the effect of
permitting, one party (but not another party) to terminate the
contract,
(c)
a term that penalises, or has the effect of
penalising, one party (but not another party) for a breach or termination of
the contract,
(d)
a term that permits, or has the effect of
permitting, one party (but not another party) to vary the terms of the
contract,
(e)
a term that permits, or has the effect of
permitting, one party unilaterally to vary the characteristics of the goods to
be supplied under the contract,
(f)
a term that permits, or has the effect of
permitting, one party unilaterally to vary the goods required to be sold or
the place at which goods are required to be sold by the motor
dealer,
(g)
a term that unreasonably limits, or has the
effect of unreasonably limiting, the assignment by the motor dealer of the
motor dealer’s rights under the contract or the sale of the motor
dealer’s business,
(h)
a term that limits, or has the effect of
limiting, one party’s rights to sue another
party.
143Unjust
conduct
Conduct of a manufacturer is unjust conduct for the purposes of
this Part if it is conduct:
(a)
that occurs in connection with a supply contract
and is conduct that is dishonest or unfair, or
(b)
that is authorised by an unfair term of a supply
contract.
144Complaints to Small Business
Commissioner
(1)
A motor industry group may apply to the Small
Business Commissioner for assistance in dealing with a dispute about an unfair
term of a supply contract or a class of supply contracts or unjust conduct by
a manufacturer who is a party to a supply contract or class of supply
contracts.
(2)
A motor dealer may apply to the Small Business
Commissioner for assistance in dealing with a dispute about an unfair term of
a supply contract or unjust conduct by a manufacturer who is a party to a
supply contract.
(3)
The application is to be dealt with under the
Small Business Commissioner Act 2013 as
if it were made by a small business under Division 2 of Part 2 of that
Act.
145Applications to Tribunal about
unfair supply contracts and unjust conduct
(1)
A motor industry group or the Small Business
Commissioner may apply to the Tribunal on behalf of a motor dealer or class of
motor dealers for a declaration that a term of a supply contract or a class of
supply contracts is unfair, or that conduct of a manufacturer is unjust, and
for orders under this Part.
(2)
A motor dealer may apply to the Tribunal for a
declaration that a term of a supply contract is unfair, or that conduct of a
manufacturer is unjust, and for orders under this Part.
(3)
An application may not be made by a motor
industry group or a motor dealer in relation to a matter unless the motor
industry group or motor dealer has first made a complaint to the Small
Business Commissioner about the matter and the Commissioner has provided a
certificate under section 19 of the Small Business
Commissioner Act 2013 as to the outcome of procedures
under that Act relating to the complaint.
(4)
An applicant for a declaration and an order under
this Part must give notice in writing of the application to the
Secretary.
146Declarations by
Tribunal
(1)
The Tribunal may, on application under this Part
by a motor industry group, the Small Business Commissioner or a motor dealer,
declare a term of a supply contract or a class of supply contracts to be an
unfair term or declare conduct of a manufacturer to be unjust
conduct.
(2)
In determining whether to make a declaration that
a term of a supply contract is an unfair term or that conduct is unjust, the
Tribunal may take into account such matters as it thinks fit and is to have
regard to all the circumstances of the case, including the contract as a
whole.
(3)
Without limiting subsection (2), the Tribunal may
consider the following (if relevant):
(a)
the extent to which the supply contract is
expressed in reasonably plain language and is presented
clearly,
(b)
whether or not there was any material inequality
in bargaining power between the parties to the supply
contract,
(c)
whether or not at or before the time the supply
contract was made its provisions were the subject of
negotiation,
(d)
whether or not it was reasonably practicable for
a motor dealer to negotiate for the alteration of or to reject the term of the
supply contract or any matter related to the contract,
(e)
whether a term of a supply contract imposes
conditions which are unreasonably difficult to comply with or not reasonably
necessary for the protection of the legitimate interests of any party to the
supply contract,
(f)
whether or not and when independent legal or
other expert advice was obtained by the motor dealer,
(g)
whether any undue influence, unfair pressure or
unfair tactics were exerted on or used against the motor dealer:
(i)
by any other party to the supply contract,
or
(ii)
by any person acting or appearing or purporting
to act for or on behalf of any other party to the supply contract,
or
(iii)
by any person to the knowledge (at the time the
supply contract was made) of any other party to the supply contract or of any
person acting or appearing or purporting to act for or on behalf of any other
party to the supply contract,
(h)
the conduct of the parties in relation to similar
contracts or courses of dealing to which any of them has been a
party.
147Orders by Tribunal if term
declared unfair or conduct declared unjust
(1)
The Tribunal may, if it declares a term of a
supply contract or of a class of supply contracts to be an unfair term, do any
of the following:
(a)
make an order declaring the contract or contracts
to be void, in whole or in part,
(b)
make an order varying, in whole or in part, any
term of the contract or contracts,
(c)
make an order directing a party to the contract
or contracts to take or not to take specified actions relating to the
subject-matter of the contract or contracts (whether or not permitted by the
contract or contracts),
(d)
make an order directing a party to the contract
to pay an amount of compensation to another party to the
contract,
(e)
make any other consequential or ancillary orders
it thinks fit.
(2)
The Tribunal may, if it declares conduct by a
manufacturer to be unjust, do any of the following:
(a)
make an order directing a manufacturer or other
person to take or not to take specified actions relating to the conduct or the
subject-matter of the supply contract or contracts (whether or not permitted
by the contract or contracts),
(b)
make an order directing a party to the contract
to pay an amount of compensation to another party to the
contract,
(c)
make any other consequential or ancillary orders
it thinks fit.
(3)
An order made by the Tribunal under this section
takes effect when it is made or at such other time as the Tribunal
specifies.
(4)
In making an order under this section, the amount
of compensation the Tribunal may order to be paid is not subject to any
limitation on the Tribunal’s jurisdiction under any other Act or
law.
148Operation of other
laws
This Part does not limit or restrict the
operation of any other law that provides for relief against unjust conduct or
unfair contract terms.
Part 7Enforcement and
offences
Division 1Inspection
powers
149Authorised
officers
(1)
In this Act:
authorised officer means:
(a)
the Secretary, or
(b)
a person for the time being authorised in writing
as an authorised officer by the Secretary, or
(c)
a police officer, or
(d)
any other member of the NSW Police Force who is
authorised by the Commissioner of Police in writing to exercise functions of
an authorised officer under this Act, or
(e)
a person for the time being authorised in writing
as an authorised officer by the Chief Executive of Roads and Maritime
Services, or
(f)
an investigator.
investigator means an investigator
appointed under section 18 of the Fair Trading Act
1987.
(2)
An authorised officer who is a person for the
time being authorised in writing by the Secretary or the Chief Executive of
Roads and Maritime Services is to be provided by the Secretary or the Chief
Executive of Roads and Maritime Services with a certificate of
identification.
(3)
An authorised officer who is provided with a
certificate of identification or is an investigator must, when exercising on
any premises any function of the authorised officer or investigator under this
Act, produce the officer’s or investigator’s certificate of
identification to any person apparently in charge of the premises who requests
its production.
150Purposes for which powers of
authorised officer may be exercised
An authorised officer may exercise the powers
conferred by this Division for any of the following purposes:
(a)
ascertaining whether the provisions of this Act
or the regulations are being complied with or have been
contravened,
(b)
ascertaining whether the provisions of Part 4.5
of the Road Transport Act
2013 are being complied with or have been
contravened,
(c)
investigating a complaint made under this
Act,
(d)
obtaining evidence, records or information in
relation to a matter that constitutes or may constitute a contravention of a
provision referred to in paragraph (a) or (b).
151Powers of entry, inspection
etc
(1)
An authorised officer may enter and inspect at
any reasonable time any premises that the officer believes on reasonable
grounds are used for the carrying on of the business or a trade for which a
licence is required under this Act, whether or not the business or trade is
being carried on by the holder of a licence.
(2)
An authorised officer who enters premises under
this section or under the authority of a search warrant under this Part may do
any one or more of the following:
(a)
require any person on those premises to produce
any records in the possession or under the control of that person relating to
the carrying on of the business of a motor dealer, motor vehicle repairer or
motor vehicle recycler and (in the case of records stored electronically) to
produce any such record in written form,
(b)
require any person on those premises to produce
any register required to be kept at those premises under this Act and to
produce any such register in written form,
(c)
inspect, take copies of or extracts from, or make
notes from, any such records (including registers), and for that purpose may
take temporary possession of any such records (including
registers),
(d)
take possession of any such records (including
registers) if the authorised officer considers it necessary to do so for the
purpose of obtaining evidence or protecting evidence from
destruction,
(e)
take such photographs, films and audio, video and
other recordings as the authorised officer considers
necessary,
(f)
search for and examine any motor vehicles and
parts and accessories of motor vehicles,
(g)
require any person on those premises to answer
questions or otherwise furnish information in relation to records at the
premises or any statement made by the person,
(h)
require the owner or occupier of those premises
to provide the authorised officer with such assistance and facilities as is or
are reasonably necessary to enable the authorised officer to exercise the
functions of an authorised officer under this
section.
(3)
An authorised officer is not entitled to enter a
part of premises used for residential purposes, except:
(a)
with the consent of the occupier of the part,
or
(b)
under the authority of a search
warrant.
(4)
The regulations may make provision with respect
to the keeping of a register under this Act during any period in which the
register is in the possession of an authorised officer.
152Power of authorised officer to
obtain information, records and evidence
(1)
An authorised officer may, by notice in writing
given to a person, require the person to produce to the authorised officer, in
accordance with the notice, specified records or records of a specified class
or description to an authorised officer at a specified time or within a
specified period.
(2)
An authorised officer may inspect and take notes,
copies and extracts of or from any record or statement produced under this
section.
153Police entry
power
(1)
For the purpose of searching for, or obtaining
information concerning, stolen motor vehicles and stolen parts and accessories
of motor vehicles, a police officer may:
(a)
enter premises that the police officer suspects
on reasonable grounds are used for the carrying on of a business or trade for
which a licence is required, whether or not the business or trade is being
carried on by the holder of a licence, and
(b)
search for and examine any motor vehicles and
parts and accessories of motor vehicles on those premises,
and
(c)
require the production of records,
and
(d)
inspect and require explanations of any record,
and
(e)
take notes, copies and extracts of or from any
record or statement produced under this section.
(2)
The power of a police officer to enter premises
does not permit entry to any part of premises used for residential purposes
unless:
(a)
a person holds a licence granted in respect of
the premises, or
(b)
the police officer is acting pursuant to a search
warrant.
(3)
In this section:
stolen means stolen or otherwise
unlawfully obtained.
154Search
warrants
(1)
An authorised officer may apply to an issuing
officer for a search warrant if the applicant has reasonable grounds for
believing that a provision of this Act or the regulations has been or is being
contravened on premises.
(2)
An issuing officer to whom an application for a
search warrant is made under this section may, if satisfied that there are
reasonable grounds for doing so, issue a search warrant authorising an
authorised officer named in the warrant, when accompanied by a police officer,
and any other person named in the warrant:
(a)
to enter the premises concerned,
and
(b)
to search the premises for evidence of a
contravention of this Act or the regulations.
(3)
Division 4 of Part 5 of the Law
Enforcement (Powers and Responsibilities) Act 2002 applies
to a search warrant issued under this section.
(4)
In this section:
issuing
officer means an authorised officer within the meaning of
the Law Enforcement (Powers and Responsibilities) Act
2002.
155Obstruction and other related
offences
A person must not:
(a)
without reasonable excuse, refuse or fail to
comply with any notice given or requirement made, or to answer any question
asked, by an authorised officer or a police officer under this Division,
or
(b)
provide information or give evidence in purported
compliance with a requirement made or question asked by an authorised officer
or police officer under this Division knowing the information or evidence to
be false or misleading in a material particular, or
(c)
wilfully delay, hinder or obstruct an authorised
officer or a police officer in the exercise of the officer’s functions
under this Act, or
(d)
conceal or attempt to conceal any motor vehicle
or part of or accessory for a motor vehicle that an authorised officer or a
police officer is entitled to search for and examine under this
Division.
Maximum penalty: 20 penalty
units.
Division 2Proceedings for
offences
156Proceedings
(1)
Proceedings for an offence against this Act or
the regulations may be taken and prosecuted only by the following
persons:
(a)
the Secretary or, in the name of the Secretary, a
person acting with the authority of the Secretary,
(b)
a police officer,
(c)
the Chief Executive of Roads and Maritime
Services or, in the name of the Chief Executive, a person acting with the
authority of the Chief Executive.
(2)
Proceedings for an offence under this Act or the
regulations (other than proceedings for an indictable offence) may be dealt
with:
(a)
summarily before the Local Court,
or
(b)
summarily before the Supreme Court in its summary
jurisdiction.
(3)
The maximum monetary penalty that the Local Court
may impose in proceedings for an offence under this Act or the regulations is
the maximum penalty specified for that offence or 100 penalty units, whichever
is the lesser.
(4)
Any proceedings for an offence against this Act
or the regulations must be commenced not later than 1 year after the time when
the offence is alleged to have been committed.
(5)
Despite subsection (4), proceedings for an
offence under Division 1 of Part 2 or section 52, 53 or 54 may be commenced at
any time within 3 years after the time when the offence is alleged to have
been committed.
157Additional orders after
findings of guilt
(1)
If a person is found guilty of an offence under
this Act or the regulations, the court may, in addition to any other penalty
it imposes, make any of the following:
(a)
a finding or determination relating to an act or
omission of the person found guilty,
(b)
an order for the payment of
compensation,
(c)
an order for the carrying out of any
work,
(d)
an order ancillary to any such
order.
(2)
A court may make an order against a person under
this section even though proceedings for any other order against the person
under this Act have been commenced.
(3)
The powers of a court under this section are in
addition to any other powers of the court under this
Act.
158Penalty
notices
(1)
A penalty notice officer may serve a penalty
notice on a person if it appears to the officer that the person has committed
an offence against this Act or the regulations, being an offence prescribed by
the regulations as a penalty notice offence.
(2)
A penalty notice is a notice to the effect that,
if the person served does not wish to have the matter determined by a court,
the person can pay, within the time and to the person specified in the notice,
the amount of the penalty prescribed by the regulations for the offence if
dealt with under this section.
(3)
A penalty notice under this section is declared
to be a penalty notice for the purposes of the Fines Act
1996.
(4)
A penalty notice may be served personally or by
post.
(5)
If the amount of penalty prescribed for an
alleged offence is paid under this section, no person is liable to any further
proceedings for the alleged offence.
(6)
Payment under this section is not to be regarded
as an admission of liability for the purpose of, and does not in any way
affect or prejudice, any civil claim, action or proceeding arising out of the
same occurrence.
(7)
The regulations may:
(a)
prescribe an offence for the purposes of this
section by specifying the offence or by referring to the provision creating
the offence, and
(b)
prescribe the amount of penalty payable for the
offence if dealt with under this section, and
(c)
prescribe different amounts of penalties for
different offences or classes of offences.
(8)
The amount of a penalty prescribed under this
section for an offence is not to exceed the maximum amount of penalty that
could be imposed for the offence by a court.
(9)
This section does not limit the operation of any
other provision of, or made under, this or any other Act relating to
proceedings that may be taken in respect of offences.
(10)
In this section, penalty
notice officer means a person prescribed by the regulations
for the purposes of this section.
Division 3Liability of persons involved
in corporations
159Liability of directors etc for
offences by corporation—offences attracting executive
liability
(1)
For the purposes of this section, an executive
liability offence is an offence against any of the following
provisions of this Act that is committed by a corporation:
(a)
section 12,
(b)
section 15 (1) or 16
(1).
(2)
A person commits an offence against this section
if:
(a)
a corporation commits an executive liability
offence, and
(b)
the person is:
(i)
a director of the corporation,
or
(ii)
an individual who is involved in the management
of the corporation and who is in a position to influence the conduct of the
corporation in relation to the commission of the executive liability offence,
and
(c)
the person:
(i)
knows or ought reasonably to know that the
executive liability offence (or an offence of the same type) would be or is
being committed, and
(ii)
fails to take all reasonable steps to prevent or
stop the commission of that offence.
Maximum penalty: The maximum penalty for the
executive liability offence if committed by an
individual.
(3)
The prosecution bears the legal burden of proving
the elements of the offence against this section.
(4)
The offence against this section can only be
prosecuted by a person who can bring a prosecution for the executive liability
offence.
(5)
This section does not affect the liability of the
corporation for the executive liability offence, and applies whether or not
the corporation is prosecuted for, or convicted of, the executive liability
offence.
(6)
This section does not affect the application of
any other law relating to the criminal liability of any persons (whether or
not directors or other managers of the corporation) who are accessories to the
commission of the executive liability offence or are otherwise concerned in,
or party to, the commission of the executive liability
offence.
(7)
In this section:
director has the same meaning it has
in the Corporations Act 2001 of the
Commonwealth.
reasonable steps, in relation to the
commission of an executive liability offence, includes, but is not limited to,
such action (if any) of the following kinds as is reasonable in all the
circumstances:
(a)
action towards:
(i)
assessing the corporation’s compliance with
the provision creating the executive liability offence,
and
(ii)
ensuring that the corporation arranged regular
professional assessments of its compliance with the
provision,
(b)
action towards ensuring that the
corporation’s employees, agents and contractors are provided with
information, training, instruction and supervision appropriate to them to
enable them to comply with the provision creating the executive liability
offence so far as the provision is relevant to them,
(c)
action towards ensuring that:
(i)
the plant, equipment and other resources,
and
(ii)
the structures, work systems and other
processes,
relevant to compliance with the provision creating the
executive liability offence are appropriate in all the
circumstances,
(d)
action towards creating and maintaining a
corporate culture that does not direct, encourage, tolerate or lead to
non-compliance with the provision creating the executive liability
offence.
160Liability of directors etc for
offences by corporation—accessory to the commission of the
offences
(1)
For the purposes of this section, a corporate offence is an offence
against this Act or the regulations that is capable of being committed by a
corporation, whether or not it is an executive liability offence referred to
in section 159.
(2)
A person commits an offence against this section
if:
(a)
a corporation commits a corporate offence,
and
(b)
the person is:
(i)
a director of the corporation,
or
(ii)
an individual who is involved in the management
of the corporation and who is in a position to influence the conduct of the
corporation in relation to the commission of the corporate offence,
and
(c)
the person:
(i)
aids, abets, counsels or procures the commission
of the corporate offence, or
(ii)
induces, whether by threats or promises or
otherwise, the commission of the corporate offence, or
(iii)
conspires with others to effect the commission of
the corporate offence, or
(iv)
is in any other way, whether by act or omission,
knowingly concerned in, or party to, the commission of the corporate
offence.
Maximum penalty: The maximum penalty for the
corporate offence if committed by an individual.
(3)
The prosecution bears the legal burden of proving
the elements of the offence against this section.
(4)
The offence against this section can only be
prosecuted by a person who can bring a prosecution for the corporate
offence.
(5)
This section does not affect the liability of the
corporation for the corporate offence, and applies whether or not the
corporation is prosecuted for, or convicted of, the corporate
offence.
(6)
This section does not affect the application of
any other law relating to the criminal liability of any persons (whether or
not directors or other managers of the corporation) who are concerned in, or
party to, the commission of the corporate offence.
Division 4Evidentiary
provisions
161Evidence of licensing matters
and exemptions
A document purporting to be a certificate signed
by the Secretary and certifying the following matters is evidence of the
matters certified in all courts and before all persons and bodies authorised
by law to receive evidence:
(a)
that a specified person is or is not or was or
was not on any date or during any specified period the holder of a
licence,
(b)
that a specified licence is or is not or was or
was not subject to a specified condition on any date or during any specified
period,
(c)
that a specified class of repair work is or is
not or was or was not specified for a tradesperson’s certificate on any
date or during any specified period,
(d)
that a specified place of business is or is not
or was or was not specified in a specified licence on any date or during any
specified period,
(e)
that a person or thing is or is not or was or was
not on any date or during any specified period exempted from a specified
provision of this Act or the regulations or the whole of this Act or the
regulations,
(f)
that any such exemption is or is not or was or
was not subject to a specified condition on any date or during any specified
period.
162Evidence as to entries in
registers
A register required to be kept by this Act,
whether or not the register has been kept in or to the effect of the
prescribed form, is evidence in proceedings in all courts and before all
persons and bodies authorised by law to receive evidence, of the matters
required by or under this Act to be recorded in it. An entry in any such
register is evidence of the matters contained in the
entry.
163Evidence of carrying on
business as motor dealer and advertising
(1)
If in any proceedings for an offence under this
Act or the regulations it is proved that a person sold, or offered or
displayed for sale, more than 4 motor vehicles within a 12 month period to any
other person or persons (other than a motor dealer), it is presumed in the
absence of evidence to the contrary that the person was carrying on business
as a motor dealer during that period.
(2)
Nothing in subsection (1) precludes a person who
sells, or offers or displays for sale, 4 or less motor vehicles within a 12
month period to any other person or persons from being found to be a motor
dealer.
(3)
If in any proceedings for an offence under this
Act or the regulations it is proved that a statement has been published
containing identifying particulars of a person, or the agent of a person, who
is a person specified in subsection (4), the person is presumed in the absence
of evidence to the contrary to have caused the statement to be published on
the day on which it was published.
(4)
The specified persons are as follows:
(a)
the owner or supplier of any motor vehicle,
substantially demolished or substantially dismantled motor vehicle or parts of
or accessories for motor vehicles that the statement promotes or is intended
to promote,
(b)
the supplier of any services relating to motor
vehicles, parts or accessories referred to in paragraph (a) that the statement
promotes or is intended to promote,
(c)
a person who has, otherwise than as an owner, an
interest in any motor vehicles, parts or accessories referred to in paragraph
(a) or the supply of any services referred to in paragraph (b) that the
statement promotes or is intended to promote.
Part 8Motor Dealers and Repairers
Compensation Fund
164Meaning of “failure to
account” by motor dealer
(1)
In this Part, a reference to a failure to account by a motor dealer
is a reference to a failure by the motor dealer to account for money or other
valuable property entrusted to the motor dealer or an associate of the motor
dealer in the course of the carrying on of the motor dealer’s business
as a motor dealer.
(2)
Without limiting subsection (1), the failure of a
motor dealer to return a deposit, or other money or thing, given to the dealer
by a person in respect of the purchase of a motor vehicle that did not proceed
is a failure to account.
(3)
This Part applies only to a failure to account
that arises from an act or omission of the motor dealer or an associate of the
motor dealer.
(4)
In this section:
associate of a motor dealer
means:
(a)
an employee or agent of the motor dealer,
or
(b)
a person who has the apparent control or charge
for the time being of the business of the motor dealer or of any place at
which that business is being carried on.
165Motor Dealers and Repairers
Compensation Fund
There is to be established in the Special
Deposits Account a fund called the Motor Dealers and Repairers Compensation
Fund. The Secretary is to administer the Compensation
Fund.
166Money payable to Compensation
Fund
(1)
The Compensation Fund is to consist of the
following:
(a)
amounts of licence fees determined in accordance
with the regulations,
(b)
contributions required to be made to the
Compensation Fund as a result of disciplinary action taken against a
person,
(c)
any amounts required or permitted to be paid to
the credit of the Compensation Fund under this or any other
Act,
(d)
income from the investment of the Compensation
Fund.
(2)
The regulations are to provide for the proportion
of the total licence fees or other fees payable under this Act that are to be
paid to the Compensation Fund instead of the Consolidated
Fund.
167Money payable from
Compensation Fund
The following may be paid from the Compensation
Fund:
(a)
the amount of any loss certified by the Secretary
under this Part,
(b)
legal costs incurred by the Secretary in
connection with claims against the Compensation Fund,
(c)
the costs of administering the Compensation
Fund,
(d)
any amount that is required or permitted to be
paid from the Compensation Fund under this or any other
Act.
168Matters for which claims may
be made
(1)
The following losses incurred by a person are
losses for which the person may claim compensation under this Part:
(a)
a loss because the repair work carried out on a
motor vehicle by or on behalf of a motor vehicle repairer or by a tradesperson
was not competently done,
(b)
a loss incurred in connection with a motor
vehicle because a motor dealer failed to comply with this Act or the
regulations,
(c)
a loss incurred in connection with a motor
vehicle because of a breach by a motor dealer of a contract made by the person
with the motor dealer, but only if the breach is of a kind prescribed by the
regulations for the purposes of this section,
(d)
a loss incurred in connection with a motor
vehicle because the motor dealer failed to give to the person an unencumbered
title to the motor vehicle,
(e)
a loss incurred because of a failure to account
by a motor dealer.
(2)
The following losses incurred by a person are not
losses for which the person may claim compensation under this Part:
(a)
a loss for which compensation has been paid under
this Part or for which the Secretary has previously given a certificate under
this Part,
(b)
a loss incurred by the person when acting in the
capacity of a motor dealer, motor vehicle repairer, financier or motor vehicle
recycler,
(c)
a loss consisting of or arising from death or
personal injury,
(d)
a loss of or damage to property other than a
motor vehicle,
(e)
a loss of or damage to improvements made to a
motor vehicle after the motor vehicle was purchased from the motor dealer
concerned,
(f)
a loss incurred by the claimant (including a
statutory body representing the Crown) in connection with any repair work done
by an employee of the claimant.
(3)
The regulations may prescribe other losses for
which a claim for compensation may, or may not, be made under this
Part.
169Making of
claims
(1)
A person may apply to the Secretary in writing
for compensation under this Part.
(2)
An application is to be accompanied by the
information or documents (if any) specified by the regulations or that the
Secretary requires in any particular case.
(3)
A claim for compensation under this Part must be
made:
(a)
within 12 months after the loss is incurred or
the claimant becomes aware of the loss, or
(b)
within such further period as the Secretary may
in any case allow.
170Determination of
claims
(1)
The Secretary may allow, wholly or partly, a
claim for compensation if the Secretary is satisfied that it relates to a loss
for which compensation may be paid under this Part.
(2)
The Secretary may disallow any claim, wholly or
partly, in appropriate cases. In particular, the Secretary may disallow a
claim to the extent that the loss was suffered as a result of a failure to
mitigate loss or was occasioned by unreasonable delay in making a
claim.
(3)
The Secretary must disallow a claim in connection
with a loss unless the motor dealer, motor vehicle repairer or tradesperson
involved:
(a)
was at the time of the relevant act or omission
from which the loss arose the holder of the applicable licence,
or
(b)
the Secretary is satisfied that the claimant
believed on reasonable grounds that the motor dealer, motor vehicle repairer
or tradesperson was the holder of such a licence.
(4)
The Secretary must disallow a claim unless the
Secretary is satisfied that the claimant has taken all reasonable steps to
exercise any legal remedies or other rights of action available to the
claimant in respect of the loss.
(5)
The Secretary must give a claimant for
compensation notice in writing of the Secretary’s decision as to the
claim.
171Certification of
loss
(1)
The Secretary is to certify the amount of loss
when the Secretary allows a claim for compensation under this
Part.
(2)
The amount certified is to be the lesser of the
actual amount of the loss or $40,000.
172Review of claim
determinations
(1)
A claimant whose claim for compensation under
this Part is wholly or partly disallowed may request the Secretary in writing
to reconsider the decision.
(2)
A request under this section must be made within
12 months of the decision to disallow the claim.
(3)
On receiving a request, the Secretary is to
reconsider the claim and may allow or disallow the whole or part of the
claim.
(4)
The Secretary must give a claimant for
compensation notice in writing of the Secretary’s decision as to the
claim.
(5)
A claimant may not request more than one
reconsideration in respect of any particular claim.
(6)
A decision of the Secretary under this section is
final.
173Subrogation
(1)
On payment out of the Compensation Fund in
settlement in whole or in part of a claim under this Act, the Crown is
subrogated, to the extent of the payment, to all the rights and remedies of
the claimant against the person in relation to whom the claim arose, or any
other person.
(2)
A certificate given by the Secretary certifying
that a specified amount has been paid out of the Compensation Fund in
settlement in whole or in part of a claim under this Act is evidence of the
matter certified.
(3)
In the enforcement of any rights or remedies to
which the Crown is subrogated under this section for the purpose of recovering
an amount paid out of the Compensation Fund, the amount is taken to be a debt
due to the Crown and may be recovered accordingly.
(4)
The Secretary may exercise the rights and
remedies to which the Crown is subrogated under this section in the name of
the Crown or in the name of the claimant concerned.
174Recovery of payments from
directors
(1)
This section applies when the payment of an
amount out of the Compensation Fund has been made as a consequence of the act
or omission of a corporation (including the payment of any amount to an
administrator of the affairs and property of the
corporation).
(2)
The Secretary may recover, jointly or severally,
from any person who was a director or persons who were directors of the
corporation at the time of the relevant act or omission, the amount of the
payment as a debt in any court of competent
jurisdiction.
(3)
In any proceedings for the recovery of an amount
under this section, judgment is not to be entered against a defendant who
proves that the act or omission occurred without the defendant’s express
or implied authority or consent.
(4)
Proceedings may be brought for the recovery of an
amount under this section whether or not the person against whom the
proceedings are brought, or any other person, has been convicted of an offence
in respect of the act or omission as a consequence of which the amount was
paid.
(5)
When this section renders a person or persons
liable to pay an amount as a consequence of an act or omission of a
corporation, the payment by the person or any of those persons of the whole or
any part of the amount does not render the corporation liable to the person
concerned in respect of the amount so paid.
(6)
An amount recovered by the Secretary under this
section is payable to the Compensation Fund.
175Deferral of Compensation Fund
payments
(1)
If the amount in the Compensation Fund is not
sufficient to pay all the amounts certified by the Secretary in any financial
year, the unpaid amounts are to be charged against future receipts of the Fund
and are to be paid when sufficient funds are available.
(2)
If a number of claims against the Compensation
Fund cannot be satisfied because the Fund is not sufficient, the Secretary has
an unfettered discretion to determine the division and allocation of the
available money among the various parties (whether or not to the exclusion of
any one of them).
Part 9Miscellaneous
176Reviews by Administrative
Decisions Tribunal
(1)
If the Secretary:
(a)
refuses to grant an application for, or suspends
or cancels, a licence, or
(b)
imposes a condition on a licence,
or
(c)
imposes a disqualification referred to in
Division 2 of Part 3,
the applicant for the licence, the licence holder or
former licence holder or the person disqualified may apply to the
Administrative Decisions Tribunal for a review of the decision of the
Secretary.
(2)
On an application for a review of a decision of
the Secretary to refuse to grant a licence because the applicant had been
convicted of or found guilty of an offence the Administrative Decisions
Tribunal may determine that the fact should be ignored on one or more of the
following grounds:
(a)
the triviality of the acts or omissions giving
rise to the offence concerned,
(b)
the time that has passed since the offence
concerned was committed,
(c)
the subsequent good behaviour of the
offender,
(d)
any other ground prescribed by the
regulations.
(3)
In determining an application for a review of any
decision to refuse to grant, or to cancel, a licence because of information
provided to the Secretary by the Commissioner of Police, the Administrative
Decisions Tribunal (and any Appeal Panel in determining any appeal against
such a review under the Administrative Decisions Tribunal Act
1997):
(a)
is to ensure that it does not, in the reasons for
its decision or otherwise, disclose any criminal intelligence,
and
(b)
in order to prevent the disclosure of any
criminal intelligence, is to receive evidence and hear argument in the absence
of the public, the applicant for review and the applicant’s
representative and any other interested party,
unless the Commissioner of Police approves
otherwise.
177Register of
licences
(1)
The Secretary must keep a register of licences
issued under this Act.
(2)
The register is to be in the form determined by
the Secretary and is to be available for inspection by the
public.
(3)
The regulations may prescribe particulars of
licences to be included in the register.
(4)
The regulations may prescribe the fees (if any)
for inspections of the register or copies of information contained on the
register.
(5)
The Secretary may, on application by a person
accompanied by the fee (if any) prescribed by the regulations, issue a
certificate certifying that a person was or was not, on a specified date or
during a specified period, the holder of a specified
licence.
178Disclosure of
information
A person must not disclose any information
obtained in connection with the administration or execution of this Act unless
that disclosure is made:
(a)
with the consent of the person from whom the
information was obtained, or
(b)
in connection with the administration or
execution of this Act (or any such other Act), or
(c)
for the purposes of any legal proceedings arising
out of this Act (or any such other Act) or of any report of any such
proceedings, or
(d)
in accordance with a requirement imposed under
the Ombudsman Act 1974,
or
(e)
with other lawful
excuse.
Maximum penalty: 20 penalty
units.
179Saving of rights and remedies
under other law
This Act does not, except as provided by this
Act, limit, restrict or otherwise affect any right or remedy of a person under
any other law.
180Contracting out
void
(1)
The provisions of this Act have effect despite
any stipulation to the contrary and no contract or agreement made or entered
into before, on or after the commencement of this section operates to annul,
vary or exclude any of the provisions of this Act.
(2)
To avoid doubt, a stipulation to the contrary
includes a provision in a contract that the law applicable to a contract is
the law of a jurisdiction other than this State.
181No indemnity for motor dealers
by previous owners
(1)
A motor dealer is not entitled to be indemnified
by a previous owner of a motor vehicle for any costs or expenses incurred
because of the operation of this Act by the motor dealer in relation to the
sale by the motor dealer of the motor vehicle.
(2)
Any contract or arrangement that provides
directly, or indirectly, for such an indemnity is void to the extent that it
so provides.
(3)
This section does not apply to an indemnity
provided by a previous owner who is a motor dealer or a motor vehicle recycler
or who carries on the business of manufacturing or assembling motor
vehicles.
182Provision of
information
(1)
An officer of a relevant authority in charge of
any record or information must, on request, supply the record or information
to the Secretary if access to the record or information is reasonably
necessary for the proper exercise of any function of the Secretary under this
Act relating to licensing, disciplinary proceedings, investigations or law
enforcement.
(2)
It is the duty of the Secretary to supply to the
Commissioner of Police, or any police officer or member of the NSW Police
Force who is authorised by the Commissioner for the purposes of this section,
the information relating to licences and other matters that is reasonably
necessary for the performance by police officers of their law enforcement
duties.
(3)
The Secretary may, in accordance with an
agreement approved by the Minister for the purposes of this subsection and
entered into with an authority of this State or another State or a Territory
or the Commonwealth, supply to that authority a record or information provided
to the Secretary under this section.
(4)
The Minister may approve an agreement for the
purposes of subsection (3) only if it relates to one or more of the
following:
(a)
offences, or the regulation of conduct, relating
to motor vehicles or motor dealing or motor vehicle
repairs,
(b)
law enforcement by an authority of another State
or a Territory or of the Commonwealth.
(5)
This section does not apply to the supply of a
record or information to which the Criminal Records
Act 1991 applies.
(6)
In this section:
relevant
authority means:
(a)
the NSW Police Force, or
(b)
Roads and Maritime Services,
or
(c)
any other authority prescribed by the regulations
for the purposes of this definition.
183False or misleading register
entries
A person must not, in respect of any particulars
or information required under this Act to be entered in a register, make an
entry in the register knowing it to be false or misleading in a material
particular.
Maximum penalty: 20 penalty
units.
184Tender of documents for
signature
A person must not submit or tender or cause or
permit to be submitted or tendered a document that is, or is evidence of, the
sale of a motor vehicle, to any person for that person’s signature
unless at the time of the submission or tendering of the document all material
particulars in the document have been completed.
Maximum penalty: 20 penalty
units.
185Service of
documents
(1)
A document that is authorised or required by this
Act or the regulations to be given to any person may be given by:
(a)
in the case of a natural person:
(i)
delivering it to the person personally,
or
(ii)
sending it by post to the address specified by
the person for the giving or service of documents or, if no such address is
specified, the residential or business address of the person last known to the
person giving or serving the document, or
(iii)
sending it by facsimile transmission to the
facsimile number of the person or by email to the internet address of the
person, or
(b)
in the case of a body corporate:
(i)
leaving it with a person apparently of or above
the age of 16 years at, or by sending it by post to, the head office, a
registered office or a principal office of the body corporate or to an address
specified by the body corporate for the giving or service of documents,
or
(ii)
sending it by facsimile transmission to the
facsimile number of the body corporate or by email to the internet address of
the body corporate.
(2)
Nothing in this section affects the operation of
any provision of a law or of the rules of a court authorising a document to be
given to or served on a person in any other manner.
186Regulations
(1)
The Governor may make regulations, not
inconsistent with this Act, for or with respect to any matter that by this Act
is required or permitted to be prescribed or that is necessary or convenient
to be prescribed for carrying out or giving effect to this
Act.
(2)
In particular, the regulations may make provision
for or with respect to the following matters:
(a)
the exemption, unconditionally or subject to
conditions, of persons or things or classes of persons or things from any or
all of the provisions of this Act,
(b)
fees for applications under this Act and licence
fees,
(c)
fees for any inspection made or information
supplied by the Secretary,
(d)
the waiver or refund of fees payable under this
Act or the regulations,
(e)
regulating the conduct of any person who is
required to hold a motor dealer’s licence, motor vehicle
repairer’s licence or motor vehicle recycler’s licence, or of the
person’s employees or agents, in carrying on the business to which the
licence relates,
(f)
prohibiting or regulating the employment by any
person who is required to hold a licence of persons convicted of offences
under this Act or of offences involving fraud or dishonesty or other
prescribed offences, or of persons whose applications for licences have been
refused or whose licences have been revoked,
(g)
requiring any person who is required to hold a
licence, or the person’s employees or agents, to keep records and report
to specified persons as to offences involving motor vehicles or parts of motor
vehicles,
(h)
providing for the form and content of
advertisements by licence holders, including:
(i)
requiring the inclusion of specified information
in advertisements or the use of specified statements in advertisements,
and
(ii)
prohibiting the inclusion of specified
information in advertisements or the use of specified statements in
advertisements,
(i)
regulating the sale of motor vehicles on
consignment,
(j)
providing for the keeping and management of trust
accounts by the holders of motor dealers’ licences,
(k)
providing for the making of claims against the
Compensation Fund, including the form and manner in which claims may be made
and the time within which claims are to be made,
(l)
requiring a person who is granted a licence to
make an initial contribution to the Compensation Fund,
(m)
requiring a licence holder to provide information
about any partner of the licence holder in a business the subject of the
licence.
(3)
A regulation may create an offence punishable by
a penalty not exceeding 20 penalty units.
187Delegation
The Secretary may delegate the exercise of any
function of the Secretary under this Act (other than this power of delegation)
to:
(a)
any member of staff of the Public Service agency
of which the Secretary is the head, or
(b)
any person, or any class of persons, authorised
for the purposes of this section by the
regulations.
188Exclusion of personal
liability
Anything done or omitted to be done by the
Secretary or an authorised officer or a person acting under the direction of
the Secretary or an authorised officer does not subject the Secretary,
authorised officer, or the person so acting, personally to any action,
liability, claim or demand if the thing was done or omitted to be done, in
good faith for the purpose of administering this Act.
189Act to bind
Crown
This Act binds the Crown in right of New South
Wales and, in so far as the legislative power of the Parliament of New South
Wales permits, the Crown in all its other capacities.
190Repeals
The Motor Dealers Act
1974 No 52 and the Motor Vehicle
Repairs Act 1980 No 71 are
repealed.
191Review of
Act
(1)
The Minister is to review this Act to determine
whether the policy objectives of the Act remain valid and whether the terms of
the Act remain appropriate for securing those
objectives.
(2)
The review is to be undertaken as soon as
possible after the period of 5 years from the commencement of this
Act.
(3)
A report on the outcome of the review is to be
tabled in each House of Parliament within 12 months after the end of the
period of 5 years.
Schedule 1Administration of
businesses
(Section 130)
1Interpretation
Words and expressions used in this Schedule have
the same meanings as they have in Division 5 of Part 5.
2General duty of
administrator
On the appointment of an administrator taking
effect, the administrator must:
(a)
subject to and in accordance with any directions
given to the administrator by the Supreme Court, administer the affairs of the
person subject to administration until the appointment is terminated,
and
(b)
subject to this Act, acquire or take into
possession and administer all property to which that person is or appears to
be entitled.
3Administrator may obtain
property
(1)
An administrator may, in the
administrator’s own name or that of the person subject to
administration, apply to the Supreme Court for an order for the transfer or
delivery of property to the administrator if the person subject to
administration fails, wholly or partly, to comply with a requirement
to:
(a)
transfer or deliver to the administrator property
in the possession of the person, or
(b)
permit the administrator to acquire or take
possession of property in the possession of the
person.
(2)
The Supreme Court may make the order applied for,
subject to such conditions (if any) as it thinks fit to
impose.
(3)
The Supreme Court may, on application by an
administrator, if it appears to the Court that an order made under this clause
is not complied with, authorise a police officer, or the administrator or some
other person and a police officer:
(a)
to enter any premises or other place specified in
the order, and
(b)
to search for any property which the
administrator is entitled to acquire or take into possession,
and
(c)
to seize any such property and remove it to such
place as the administrator thinks fit.
(4)
Any person who, without reasonable excuse,
obstructs, hinders or delays any police officer, the administrator or other
person in the exercise of a power conferred by an order made under subclause
(3) is guilty of contempt of the Supreme Court and may be punished
accordingly.
(5)
In this clause, property in the possession of a person includes
property at the disposal of or under the control of the
person.
4Dealings with property by
administrator
(1)
An administrator:
(a)
may deal with any property which the
administrator has acquired or of which the administrator has taken possession
under this Act in any manner in which the person subject to administration
might lawfully have dealt with that property, and
(b)
must, as soon as practicable after acquiring or
taking possession of that property, deliver that property to such persons as
appear to the administrator to be lawfully entitled to
it.
(2)
An administrator must apply the property acquired
and held by the administrator, or in the possession of the administrator in
his or her capacity as administrator, in the following order for the following
purposes:
(a)
firstly, in reimbursing the Secretary in respect
of all amounts paid out of the Compensation Fund in settlement in whole or in
part of claims made against the Fund in respect of a failure or default of the
person subject to administration,
(b)
secondly, in satisfying or partially satisfying
the amounts of claims against that person with respect to the business
concerned to the extent that those claims have not otherwise been fully
satisfied,
(c)
thirdly, in paying the amounts incurred by the
administrator as expenses of the administration.
(3)
Amounts referred to in subclause (2) rank equally
between themselves and are to be paid in full unless the property referred to
in that subclause is insufficient for those amounts to be paid, in which case
the amounts are to abate in equal proportions between
themselves.
(4)
Any property remaining after that application is
to be held in trust for the person subject to
administration.
5Powers in relation to
property
(1)
Without restricting any power conferred on an
administrator by this Act, the administrator may, in his or her own name or in
the name of the person subject to administration do any of the
following:
(a)
prove, grant, claim and draw a dividend in
respect of any debt due to the person in connection with the business
concerned,
(b)
take or defend proceedings relating to any matter
concerning that business before any court for the recovery of damages or for
any other remedy, whether for a tort, a breach of contract or any other cause
of action, which could have been taken or defended by that holder or
person,
(c)
employ an Australian legal practitioner or other
agent to give advice or take or defend proceedings with respect to any matter
concerning that business or otherwise to act for the administrator in relation
to the administration of the affairs and property of the
person,
(d)
for the purpose of providing sufficient money to
make any reimbursement, or to satisfy or pay any amount referred to in clause
4, sell, lease or hire any property that the administrator has acquired or of
which the administrator has taken possession under this
Act,
(e)
give receipts for money received by the
administrator in the course of and in connection with the administration of
the affairs and property of the person.
(2)
A receipt given by the administrator under this
clause is an effective discharge of the person paying the money from all
responsibility with respect to the application of that
money.
6Property may not be subject of
debt recovery proceedings
Property held by or in the possession of an
administrator in that capacity must not be levied on or taken or attached
under any judgment.
7Power of administrator to
invest money
(1)
An administrator may invest any money acquired by
the administrator or of which the administrator has taken possession under
this Act in any manner in which a trustee is authorised by law to invest funds
in respect of which the trustee is trustee.
(2)
Any income accruing from the investment of any
money by an administrator under this clause and any profit resulting from the
sale of any such investment is to be added to, and form part of, the property
held by the administrator or in the possession of the administrator in his or
her capacity as administrator.
8Power of administrator to
require information to be given
(1)
An administrator may require any person who is in
possession of information concerning property in respect of which he or she
has been appointed administrator to provide the administrator with that
information.
(2)
A person must not, without reasonable excuse,
fail to comply with a requirement made of the person under subclause
(1).
Maximum penalty: 20 penalty
units.
9Power of administrator to
prohibit withdrawal of money from authorised deposit-taking
institution
(1)
An administrator may, by notice in writing given
to an authorised deposit-taking institution, prohibit the withdrawal of money
from, or any dealing (including the completion of any dealing commenced before
the service of the notice) with, an account of the person subject to
administration if the administrator has reasonable grounds for believing that
the person holds such an account with the institution.
(2)
Without preventing any other mode of service, the
notice may be given by leaving the notice and the copy of the order
accompanying the notice with the manager of, or the person apparently in
charge of, the authorised deposit-taking institution at which the account is
kept.
(3)
The authorised deposit-taking institution to
which a notice is given must not permit the withdrawal of money from, or any
dealing (including the completion of any dealing commenced before the service
of the notice) with, any account to which the notice relates except with the
authority of the administrator.
(4)
Any authorised deposit-taking institution that
contravenes this clause is liable to the administrator in respect of any loss
sustained because of that contravention and the amount of that loss may be
recovered by the administrator in proceedings taken against the institution in
a court of competent jurisdiction.
(5)
The administrator may withdraw from an account
referred to in subclause (1) all or any of the money held in that account and
pay that money into a special account or special accounts in his or her own
name and may operate, and otherwise deal with, that account or those accounts
according to law.
10Claims against property
administered by administrator
(1)
An administrator may give to any person
(including the person subject to administration) a notice to the effect that,
if that person has any claim in respect of any property held by or in the
possession of the administrator in that capacity, the claim will not be
entertained unless full particulars of the property claimed and the grounds of
the claim are submitted to the administrator within the period, being not less
than 30 days after the notice is given, specified in the
notice.
(2)
The administrator may disregard any claim made by
a person to whom a notice is given otherwise than in compliance with the terms
of the notice.
11Power of Supreme Court to
order person to attend before Court for examination
(1)
On the application of an administrator, the
Supreme Court may order any person (including the person subject to
administration) to appear before the Court to be examined on oath with respect
to any property that is being administered by the administrator or that the
administrator is entitled to administer.
(2)
On an examination before the Supreme Court, the
Court may put or allow to be put to the person being examined such questions
as it thinks fit.
(3)
A person examined before the Supreme Court is not
excused from answering a question put to the person on the ground that the
answer might incriminate the person. If the person claims, before answering
the question, that the answer might incriminate the person, neither the
question nor the answer is admissible in evidence against the person in
criminal proceedings, other than proceedings in relation to the making of a
false statement on oath in respect of the answer.
(4)
A person attending for examination under this
clause is entitled to be paid such expenses (if any) as the Supreme Court may
allow.
(5)
The expenses are to be paid by the administrator
and are to form part of the expenses of the
administration.
12Expenses of
administrator
(1)
All amounts incurred by an administrator in the
course of administration, to the extent that they have not otherwise been paid
to the administrator or otherwise met under this Act, are to be paid to the
administrator by the Secretary out of the Compensation
Fund.
(2)
The amounts so payable include money payable to
the administrator as remuneration for his or her services and the costs of
bringing or defending or otherwise participating in legal proceedings in the
course of and in connection with the administration.
(3)
Any amounts paid or payable to an administrator
out of the Compensation Fund as expenses of the administration under this Act
may be recovered in the Supreme Court by the Secretary from the person subject
to administration as a debt due from that person to the
Secretary.
(4)
The Secretary and an administrator may enter into
an agreement as to the amount to be paid to the administrator as his or her
remuneration.
(5)
In default of any such agreement, the Supreme
Court may, on application by the Secretary or the administrator, determine the
amount of remuneration to be paid to the administrator.
(6)
The Supreme Court may, on application by a person
subject to administration within the period prescribed by the
regulations:
(a)
re-open any agreement entered into under
subclause (4) with respect to the remuneration paid or to be paid to the
administrator, and
(b)
determine the amount of remuneration that, in the
opinion of the Court, ought, in fairness to the person, to have been agreed
to, and
(c)
if the amount of remuneration agreed to has been
paid to the administrator and that amount exceeds the amount determined by the
Court, order the excess to be refunded to the
person.
(7)
If, in the course of proceedings to recover
amounts for expenses of administration from the person subject to
administration, it appears to the Supreme Court that the amounts sought to be
recovered from the person for the expenses of administration are excessive,
the Court may:
(a)
by order, direct that an account be taken between
the Secretary and the administrator, and
(b)
by further order or orders, relieve the person
from payment of any amount that exceeds the amount the Court determines is
fairly payable for those expenses, and
(c)
direct that any such excess amount that has been
paid to or allowed in account by the Secretary to the administrator be
refunded by the administrator.
13Claim or charge against
administrator may be paid from Fund
(1)
The Secretary is to reimburse the administrator
for any costs, charges, expenses or damages reasonably incurred by the
administrator for a good faith claim relating to the carrying out or purported
carrying out of the administrator’s functions under this
Act.
(2)
Any amounts payable under this clause may be paid
from the Compensation Fund.
(3)
For the purposes of this clause, a claim is a
good
faith claim if it is made for any act or omission done or
omitted in good faith by the administrator, or an employee or agent of the
administrator.
14Reports by
administrator
(1)
An administrator must, at such times as the
Supreme Court determines, provide a report to the Court and the Secretary on
the administration containing the information required by the
Court.
(2)
At the end of the administration the
administrator must lodge the following with the Supreme Court:
(a)
the administrator’s final report on the
administration,
(b)
all records in his or her possession or under his
or her control relating to that administration.
(3)
The records are to be kept in the custody of the
Supreme Court, subject to any order of the Court directing the destruction or
other disposal of those records.
(4)
This clause is subject to any orders made or
directions given by the Supreme Court under this Act.
Schedule 2Savings, transitional and
other provisions
Part 1General
1Regulations
(1)
The regulations may contain provisions of a
savings or transitional nature consequent on the enactment of this Act or any
Act that amends this Act.
(2)
Any such provision may, if the regulations so
provide, take effect from the date of assent to the Act concerned or a later
date.
(3)
To the extent to which any such provision takes
effect from a date that is earlier than the date of its publication on the NSW
legislation website, the provision does not operate so as:
(a)
to affect, in a manner prejudicial to any person
(other than the State or an authority of the State), the rights of that person
existing before the date of its publication, or
(b)
to impose liabilities on any person (other than
the State or an authority of the State) in respect of anything done or omitted
to be done before the date of its publication.
Part 2Provisions consequent on
enactment of this Act
2Definitions
In this Part:
existing
licence holder means a person who was, immediately before
the commencement of Part 2 of this Act:
(a)
the holder of a licence under the Motor Dealers Act 1974,
or
(b)
the holder of a licence or a tradesperson’s
certificate under the Motor Vehicle Repairs Act
1980.
former
Acts means the Motor Dealers Act
1974 and the Motor Vehicle
Repairs Act 1980.
1974
Act means the Motor Dealers Act
1974.
1980
Act means the Motor Vehicle
Repairs Act 1980.
3General
savings
(1)
Any act, matter or thing done or omitted to be
done under a provision of a former Act and having any force or effect
immediately before the commencement of a provision of this Act that replaces
that provision is, on that commencement, taken to have been done or omitted
under the provision of this Act.
(2)
This clause does not apply:
(a)
to the extent that its application is
inconsistent with any other provision of this Schedule or a provision of a
regulation made under this Schedule, or
(b)
to the extent that its application would be
inappropriate in a particular case.
Note—
Among other things, this clause applies to
existing undertakings and other actions relating to unjust conduct under the
former Acts and also to persons for whom an administrator had been appointed
under the 1974 Act.
4Existing licences under the
former Acts
(1)
An existing licence holder who was, immediately
before the commencement of Part 2 of this Act, the holder of:
(a)
a dealer’s licence or a wholesaler’s
licence under the 1974 Act is taken to be the holder of a motor dealer’s
licence granted under this Act, or
(b)
an auto-dismantler’s licence under the 1974
Act is taken to be the holder of a motor vehicle recycler’s licence
granted under this Act, or
(c)
a motor vehicle parts reconstructor’s
licence under the 1974 Act is taken to be the holder of a motor vehicle
repairer’s licence granted under this Act, or
(d)
a licence in respect of a class of repair work
under the 1980 Act is, subject to the regulations, taken to be the holder of a
motor vehicle repairer’s licence, or
(e)
a tradesperson’s certificate in respect of
a class of repair work under the 1980 Act is, subject to the regulations,
taken to be the holder of a tradesperson’s certificate for that class of
repair work granted under this Act.
(2)
An existing licence that is, by operation of this
clause, taken to be a licence under this Act is subject to the same conditions
that applied to the licence immediately before the commencement of Part 2 of
this Act and any such conditions may be varied or revoked as if they were
imposed under this Act.
(3)
Despite subclause (2), an existing licence that
was a motor vehicle repairer’s licence under the 1980 Act is not subject
to any condition limiting the licence to a class or classes of repair
work.
(4)
An existing licence continued in force by this
clause ceases to have effect on the day specified for the purposes of this
clause by the regulations.
(5)
The regulations may specify different days for
the termination of different existing licences or classes of existing
licences.
5References to
licences
In any document, a reference:
(a)
to a dealer’s licence or a
wholesaler’s licence under the 1974 Act is taken to be a reference to a
motor dealer’s licence granted under this Act, or
(b)
to an auto-dismantler’s licence under the
1974 Act is taken to be a reference to a motor vehicle recycler’s
licence granted under this Act, or
(c)
to a motor vehicle parts reconstructor’s
licence under the 1974 Act is taken to be a reference to a motor vehicle
repairer’s licence granted under this Act, or
(d)
to a licence in respect of a class of repair work
under the 1980 Act is, subject to the regulations, taken to be a reference to
a motor vehicle repairer’s licence for that class of repair work granted
under this Act, or
(e)
to a tradesperson’s certificate in respect
of a class of repair work under the 1980 Act is, subject to the regulations,
taken to be a reference to a tradesperson’s certificate for that class
of repair work granted under this Act.
6Existing
disputes
Any dispute being dealt with under a former Act
immediately before the commencement of Division 2 of Part 5 of this Act is to
continue to be dealt under that former Act as if that Act were in
force.
7Existing disciplinary
proceedings
(1)
This clause applies to disciplinary proceedings
under a former Act commenced against a person but not finally determined
before the commencement of Part 3 of this Act.
(2)
Disciplinary proceedings to which this clause
applies are to continue to be determined as if the former Act continued to be
in force.
(3)
Without limiting any other action that may be
taken, disciplinary action taken in such proceedings may be taken in relation
to any licence held, or taken to be held, by the person concerned under this
Act.
(4)
Disciplinary proceedings are taken to have been
commenced against a person for the purposes of this clause if a show cause
notice had been issued to the person under the former
Act.
8Compensation
Fund
(1)
The Compensation Fund is a continuation of the
following Funds under the former Acts:
(a)
the Motor Dealers Compensation
Fund,
(b)
the Motor Vehicle Repair Industry Contingency
Fund,
(c)
the Motor Vehicle Repair Industry Education and
Research Fund,
(d)
the Motor Vehicle Repair Industry General
Fund.
(2)
Any amount payable to or from any of those Funds
immediately before the commencement of this clause is payable instead to or
from the Compensation Fund under this Act.
(3)
Any payment under a former Act out of the Motor
Dealers Compensation Fund or the Motor Vehicle Repair Industry Contingency
Fund in settlement in whole or in part of a claim under the former Act is, for
the purposes of this Act, taken to be a payment made out of the Compensation
Fund under this Act in settlement in whole or in part of the claim concerned
as if it were a claim under this Act.
9Act extends to acts and
omissions before commencement
Unless the context otherwise indicates or
requires, a provision of this Act extends to any act or omission occurring
before the commencement of the provision.
10Authorised
officers
(1)
A person who held office as an inspector under
the 1980 Act immediately before the commencement of section 149 of this Act is
taken to be an authorised officer appointed under that
section.
(2)
A person who held office as an authorised officer
under the 1974 Act immediately before the commencement of section 149 of this
Act is taken to be an authorised officer appointed under that
section.
11Unfair contracts affecting
motor dealers
Part 6 of this Act applies to contracts in force
immediately before the commencement of that Part and to any unjust conduct
being carried out immediately before that commencement.
12References to road transport
legislation
A reference in this Act:
(a)
to a contravention of section 73 (1) or (3) of
the Road Transport Act 2013 includes a
reference to a contravention of section 22 (2) or (4) of the Road Transport (Vehicle Registration) Act
1997, and
(b)
to a contravention of section 98 of the Road Transport Act 2013 includes a
reference to a contravention of section 16Q of the Road
Transport (Vehicle Registration) Act
1997.
13Part subject to
regulations
This Part is subject to the
regulations.
Schedule 3Consequential amendment of
other Acts
3.1Consumer Claims Act 1998 No
162
Section 14 Limitation on
Tribunal’s jurisdiction to make orders
Omit “Motor Dealers Act
1974” from the definition of new motor vehicle in section 14
(4).
Insert instead “Motor
Dealers and Repairers Act
2013”.
3.2Crimes
(Criminal Organisations Control) Act 2012 No
9
Section 27 Prohibition on
carrying on of certain activities when interim control order or control order
takes effect
Omit paragraphs (g) and (h) of the definition of
prescribed activity in section 27
(6).
Insert instead:
(g)
carrying on business as a motor dealer, motor
vehicle repairer or motor vehicle recycler within the meaning of the Motor Dealers and Repairers Act
2013,
3.3Duties
Act 1997 No 123
[1]Section 267
Exemptions
Omit “a dealer licensed under the Motor Dealers Act 1974” from
section 267 (4) (c).
Insert instead “a motor dealer licensed
under the Motor Dealers and Repairers Act
2013”.
[2]Section 270 Exemptions for
motor dealers
Omit “a dealer’s licence or a
wholesaler’s licence issued under the Motor Dealers Act
1974” from section 270 (1).
Insert instead “a motor dealer’s
licence issued under the Motor Dealers and Repairers Act
2013”.
3.4Fair
Trading Act 1987 No 68
[1]Section 8 Delegation by
Director-General
Omit section 8 (1) (d) and
(e).
[2]Section 25F
Functions
Omit the definition of motor vehicle from section 25F (2).
Insert instead:
motor
vehicle has the same meaning as it has in the Motor Dealers and Repairers Act
2013.
3.5Fines
Act 1996 No 99
Schedule 1 Statutory
provisions under which penalty notices issued
Omit:
Motor Dealers Act
1974, section 53E
Motor Vehicle
Repairs Act 1980, section 87A
Insert instead:
Motor Dealers and
Repairers Act 2013, section 158
3.6Law
Enforcement (Powers and Responsibilities) Act 2002 No
103
Schedule 2 Search warrants
under other Acts
Omit:
Motor Dealers Act
1974, section 53AA
Motor Vehicles Repairs Act
1980, section 75A
Insert instead:
Motor Dealers and
Repairers Act 2013, section 154
3.7Licensing and Registration (Uniform Procedures) Act
2002 No 28
Schedule 1 Licences to which
Part 2 of Act applies
Omit the matter relating to the Motor Dealers Act 1974. Insert
instead:
Motor
Dealers and Repairers Act 2013
section 20 (a), motor dealer’s
licence
section 20 (b), motor vehicle repairer’s
licence
section 20 (c), motor vehicle recycler’s
licence
section 20 (d), tradesperson’s
certificate
3.8Motor
Vehicles Taxation Act 1988 No 111
Section 3
Definitions
Omit “licence under the Motor Dealers Act 1974” from
section 3 (2) (d).
Insert instead “motor dealer’s
licence under the Motor Dealers and Repairers Act
2013”.
3.9Pawnbrokers and Second-hand Dealers Act 1996 No
13
Section 4 Restrictions on
operation of this Act
Omit “Motor Dealers Act
1974” from section 4 (1).
Insert instead “Motor
Dealers and Repairers Act
2013”.
3.10Road
Transport Act 2013 No 18
[1]Section 72
Definitions
Omit “dealer’s licence within the
meaning of the Motor Dealers Act
1974” from the definition of licensed
motor dealer.
Insert instead “motor dealer’s
licence within the meaning of the Motor Dealers and
Repairers Act 2013”.
[2]Section 82
Definitions
Omit the definitions of auto-dismantler and dealer. Insert in alphabetical
order:
motor
dealer has the same meaning as it has in the Motor Dealers and Repairers Act 2013,
and includes any other person declared to be a motor dealer by the statutory
rules under this Act.
motor
vehicle recycler has the same meaning as it has in the
Motor Dealers and Repairers Act 2013,
and includes any other person declared to be a motor vehicle recycler by the
statutory rules under this Act.
[3]Section 82, definition of
“licensed repairer”
Omit “licence under the Motor Vehicle Repairs Act
1980”.
Insert instead “motor vehicle
repairer’s licence within the meaning of the Motor
Dealers and Repairers Act
2013”.
[4]Sections 83 (3) and 93
(2)
Omit “an auto-dismantler” wherever
occurring. Insert instead “a motor vehicle
recycler”.
[5]Sections 87 and 99 (2)
(d)
Omit “auto-dismantler” and
“dealer” wherever occurring.
Insert instead “motor vehicle
recycler” and “motor dealer”.
[6]Section 93 Information about
written-off and demolished vehicles
Omit “An auto-dismantler” from
section 93 (3). Insert instead “A motor vehicle
recycler”.
[7]Section 93
(3)
Omit “the auto-dismantler” wherever
occurring. Insert instead “the motor vehicle
recycler”.
[8]Section 101 Unauthorised
disclosure of information
Omit section 101 (d). Insert instead:
(d)
to the Secretary within the meaning of the
Motor Dealers and Repairers Act 2013 for
the purposes of any disciplinary or legal proceedings arising out of that Act
or the regulations under that Act, or
Historical
notes
Table of amending
instruments
Motor Dealers and
Repairers Act 2013 No 107. Assented to 27.11.2013. Date of
commencement, Part 6 and cl 11 of Sch 2 excepted: not in force; date of
commencement of Part 6 and cl 11 of Sch 2, assent, sec 2
(2).