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Version No. 070

Motor Car Traders Act 1986 No. 104 of 1986

Version incorporating amendments as at 17 March 2011

TABLE OF PROVISIONS Section Page

PART 1—PRELIMINARY 1 1 Purpose 1 2 Commencement 1 3 Definitions 1 4 Nature of transactions 13 5, 6 Repealed 13

PART 2—LICENCES 15 Division 1—Trading in motor cars 15

7 Motor car traders to be licensed 15 7A Deemed trading in motor cars 15

Division 2—Issue of licences 16 8 Application for licence 16 9 Refund of fee if application withdrawn 18 10 Notice of changes to details in application 18 11 Notice of application 19 11A Consent to disclosure of information 19 12 Consideration of application 20 12A Provision of information for the purposes of this Act 20 13 Grant or refusal of licence 21 13A Meaning of associate in section 13 29 14 Conditions of licence 31 15 Endorsement of licence 31 15A 2 year ban on applying for licence after refusal of application 32 16 Authority to sell motor cars at public auction 32 17 Name under which licensed motor car trader may operate 33 18 Form of licence 34 19 Change in partnership 35 19A Change in directors of bodies corporate 36 20 Licensee to give notice of certain changes 36 21 Licences to be returned 37

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22 Register to be kept 38 23 Annual licence fee and statement 40 24 Extension of time 41 24A Failure to comply with section 23 41 25 Display of licence 42 26 Duplicate licence 42 27 Surrender of licence 42 28 Automatic cancellation of licence on bankruptcy etc. 43 29 Automatic suspension of licence if Fund claim upheld 44 29A Person involved in Guarantee Fund claim may regain licence

etc. in special circumstances 46 29B Person with criminal record may be allowed limited right to

hold licence etc. 49 29C Permission to continue to hold licence despite criminal act of

partner or director 50 29D Authority may impose conditions 51

Division 3—Disciplinary action 51 30 Disciplinary action 51 30A Authority may temporarily suspend insolvent etc. trader

without hearing 53 31 Determination of disciplinary measures by Tribunal 54 31A Effect of suspension 56 31B Suspended and cancelled licences must be returned 56

Division 4—Miscellaneous 57 32 Application for review 57 33 Disability etc. of licensee 57 33A Repealed 58 34 Prescribed sign 59

PART 3—CONDUCT OF BUSINESS 60 35 Dealings book 60 35A Prohibited employees 62 35B Transitional provision concerning existing employees 65 36 Consignment selling prohibited 65 37 Dealing with young persons 66 38 Odometer tampering 66 39 Other orders 67 40 Findings in proceedings to be evidence 67 41 Agreements for sale of used motor car 68 42 Agreement for sale of new motor car 68 42A All registered cars must be sold with a roadworthy certificate 69 43 Cooling-off period 70 43A Credit Law excluded matter 74 44 Offence 74

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45 Rescission 74 46 Repealed 75 47 Powers of Magistrates' Court and Tribunal 76 48 Cancellation of security interest by motor car trader 78 49 Notification of Director by credit provider 79 50 Proceeds of sale or disposal to be held on trust 79 50A Offence to aid or abet an unlicensed trader 80 50B Right to sue providers of motor cars to unlicensed traders 82

PART 3A—SALE OF MOTOR CARS BY AUCTION 83 50C Definitions 83 50D Dummy bidding prohibited 83 50E Offences by auctioneers relating to bidding 84 50F Offence to procure dummy bid 84 50G Permissible vendor bids 84 50H Offence to falsely acknowledge bid 85 50I Contrary conditions are void 85 50J Auctioneer to keep records 85

PART 4—SALE OF USED MOTOR CARS 87 51 Definitions 87 52 Particulars to be displayed 88 53 Motor car traders to provide name and address of last owner 90 54 Obligations of motor car trader 90 55 Excluded defects 93 56 Special conditions to be void 94

PART 5—MOTOR CAR TRADERS CLAIMS COMMITTEE AND GUARANTEE FUND 95 Division 1—Motor Car Traders Claims Committee 95

57 Motor Car Traders Claims Committee 95 58 Terms and conditions of appointment 95 59 Allowances 96 60 Resignation and termination 96 61 Acting Chairperson 97 62 Secretary to the Committee 98 63 Determination not invalid by reason of vacancy, etc. 98 64, 65 Repealed 98 66 Constitution of Committee 98 67 Determination of questions before the Committee 99 68 Committee may require information from parties to a claim 99 69 Director, police and public authorities to produce information

to Committee 99 70 Procedure of Committee 100 71 Reasons for determination 100

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71A, 71B Repealed 101 72 Secretary may take legal proceedings on behalf of Committee 101 73 Protection for things done under this Part 102

Division 2—The Fund 102 74 Motor Car Traders' Guarantee Fund 102 75 Duties and powers of Treasurer 103

Division 3—Claims 103 76 Determination of claims 103 77 Admittance or refusal of claim 108 77A Committee may postpone its determination 110 78 No further claim in respect of same matter 110 79 Application for review 110 80 Subrogation where claims allowed 111 81 Deferred payment 112

PART 5A—ENFORCEMENT PROVISIONS 113 Division 1—General 113

82 Production of identity card 113 82A Documents available for inspection 113 82AA Specified persons to produce documents and answer

questions 114 82AB Third parties to produce documents and answer

questions relating to trader's business 116 82AC Ministers, police, and public authorities to produce

information to inspectors 116 82AD Certain other specified persons or bodies to produce

information 117 82AE Powers on production of documents 118 82AF Order requiring supply of information and answers to

questions 119 82AG Entry or search with consent 119 82AH Entry without consent or warrant 122 82AI Search warrants 124 82AJ Announcement before entry 125 82AK Details of warrant to be given to occupier 126 82AL Seizure of things not mentioned in the warrant 126 82AM Embargo notice 127 82AN Copies of seized documents 128 82AO Retention and return of seized documents or things 128 82AP Magistrates' Court may extend 3 month period 128 82AQ Requirement to assist inspector during entry 129 82AR Refusal or failure to comply with requirement 129 82AS Protection against self-incrimination 130 82AT Offence to give false or misleading information 130

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82ATA Powers of court if requirement to produce information not complied with 130

82AU Application of provisions relating to inspections 131 82AV Service of documents 131 82AW Confidentiality 132 82AX Production of information to Authority 133 82AY Rule against self-incrimination does not apply 133 82B Verification of details supplied to the Authority 133 82C Extended time for prosecutions 133 82CA Who may bring proceedings for offences? 134

Division 2—Infringement notices 134 82D Power to serve a notice 134 82E Form of notice 135 82F, 82G Repealed 135 82H Further proceedings concerning infringement notices 135

Division 3—Application of Fair Trading Act 1999 136 82I Application of Fair Trading Act 1999 136

PART 6—MISCELLANEOUS 138 83 Failure to disclose 138 83A Retention of documents 138 83B Offence to destroy documents required by the Act 139 83C Motor car traders must supply copies of agreements etc. 139 83D Complaints concerning motor car trader are privileged 140 84 Offence to place certain advertisements 140 84A False or misleading statements 141 84B Production of records 142 85 Corporations 143 85A Simplified procedure concerning proof that person traded

in motor cars 143 86 Service of notices 145 86A Extension of time 145 87 Certificates 145 87A Waiver or refund of fees 146 88 Contracting out prohibited 146 88A Agreement not illegal etc. by reason of offence 147 88B Agreement voidable if section 37, 38, 41 or 42 breached 147 89 Other rights and remedies 148 89A Delegation by Director 148 90 Regulations 149

PART 7—Repealed 151

91–117 Repealed 151

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PART 8—TRANSITIONAL PROVISIONS AND CONSEQUENTIAL AMENDMENTS 152

118, 119 Repealed 152 120 Subrogation 152 121 Transitional—Motor Car Traders Amendment Act 2008 152 122 Further transitional—Motor Car Traders Amendment

Act 2008 152 _________________

SCHEDULE—Repealed 153

═══════════════

ENDNOTES 154 1. General Information 154 2. Table of Amendments 155 3. Explanatory Details 160 INDEX 161

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Version No. 070


Version incorporating amendments as at 17 March 2011

The Parliament of Victoria enacts as follows:

PART 1—PRELIMINARY

1 Purpose The purpose of this Act is to provide for the regulation of motor car traders and to ensure that licensing is carried out efficiently and equitably and that the rights of those who deal with motor car traders are adequately protected.

2 Commencement This Act comes into operation on a day or days to be proclaimed.

3 Definitions (1) In this Act—

Authority means the Business Licensing Authority established under the Business Licensing Authority Act 1998;

Chairperson means the Chairperson of the Committee and includes a person acting as Chairperson;

S. 1 amended by No. 4/2008 s. 4.

S. 3(1) def. of Authority substituted by No. 52/1998 s. 140(a).

S. 3(1) def. of Chairperson inserted by No. 6/1989 s. 12(a), substituted by No. 52/1998 s. 140(b).

Part 1—Preliminary


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collateral credit agreement means an agreement—

(a) for the provision of finance for the purposes of the sale of a motor car; and

(b) that is arranged or procured by the vendor, or a motor car trader who acted on behalf of the vendor in the making of the sale;

commercial vehicle means—

(a) in relation to a motor car that was manufactured in, or imported into, Australia on or after 1 July 1988, a car—

(i) that is of a type that is classified as a goods carrying vehicle by the Department of Transport of the Commonwealth (or by any successor of that Department); and

(ii) that has a vehicle category code of MD, ME, NA, NB or NC (or any other code specified by the regulations for the purposes of this definition) stamped on its compliance plate (regardless of whether that code appears by itself or in combination with one or more numbers);

(b) in relation to a motor car that was manufactured in, or imported into, Australia before 1 July 1988, a car constructed or adapted solely or mainly for—

(i) the carriage of goods; or

S. 3(1) def. of commercial vehicle substituted by No. 74/1996 s. 3(1)(a).

s. 3



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(ii) the carriage of more than 10 passengers; or

(iii) industrial or agricultural use—

and includes a car with a carrying capacity of 1200 kg or more, but does not include a car of a type commonly called a panel van, a station wagon or a utility;

Committee means the Motor Car Traders Claims Committee established under section 57;

Consumer Act has the same meaning as it has in the Fair Trading Act 1999;

* * * * *

* * * * *

determination in relation to the Authority or the Committee includes order, direction, decision or declaration;

S. 3(1) def. of Committee amended by No. 4/2008 s. 5(1).

S. 3(1) def. of Consumer Act inserted by No. 35/2000 s. 47(a).

s. 3

S. 3(1) def. of Credit Tribunal inserted by No. 4/1989 s. 8(4)(a), repealed by No. 52/1998 s. 140(c).

S. 3(1) def. of Deputy Chairperson inserted by No. 6/1989 s. 12(b), repealed by No. 52/1998 s. 140(d).

S. 3(1) def. of determination inserted by No. 6/1989 s. 12(b).



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director, in relation to a body corporate, has the same meaning as in section 9 of the Corporations Act;

Director means the Director within the meaning of the Fair Trading Act 1999;

domestic partner of a person means—

(a) a person who is in a registered relationship with the person; or

(b) an adult person to whom the person is not married but with whom the person is in a relationship as a couple where one or each of them provides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether or not they are living under the same roof, but does not include a person who provides domestic support and personal care to the person—

(i) for fee or reward; or

(ii) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation);

S. 3(1) def. of director inserted by No. 74/1996 s. 3(1)(b), amended by No. 44/2001 s. 3(Sch. item 84.1(a)).

S. 3(1) def. of Director substituted by Nos 52/1998 s. 140(e), 17/1999 s. 10(a).

s. 3

S. 3(1) def. of domestic partner inserted by No. 27/2001 s. 8(Sch. 6 item 3.1), substituted by No. 12/2008 s. 73(1)(Sch. 1 item 41.1).



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exempt vehicle means a vehicle of a kind for the time being declared by proclamation of the Governor in Council under subsection (2) to be an exempt vehicle for the purposes of this Act;

externally-administered body corporate has the same meaning as in the Corporations Act;

finance lease means a finance lease within the meaning of subsection (4);

financial institution means—

(a) an authorised deposit-taking institution within the meaning of the Banking Act 1959 of the Commonwealth; or

(b) a body approved by the Governor in Council by order published in the Government Gazette;

financier means a person whose ordinary business is not that of buying selling or exchanging motor cars, but who carries on that business for one or more of the following purposes—

(a) selling motor cars on instalment terms;

(b) letting or hiring motor cars under hire-purchase agreements;

(c) taking or enforcing securities over motor cars;

S. 3(1) def. of externally-administered body corporate inserted by No. 101/1998 s. 8(1)(a) (as amended by No. 74/2000 s. 3(Sch. 1 item 70)), amended by No. 44/2001 s. 3(Sch. item 84.1(a)).

S. 3(1) def. of financial institution inserted by No. 17/1999 s. 10(b).

s. 3



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(d) letting or hiring motor cars with or without granting any right to purchase them;

(e) disposing of motor cars acquired by the person in connection with any of the purposes referred to in paragraph (a), (b), (c) or (d);

Fund means the Motor Car Traders' Guarantee Fund established under section 74;

hire-purchase agreement in relation to a motor car, includes a letting of the motor car with an option to purchase and an agreement for the purchase of a motor car by instalments (whether the agreement describes the instalments as rent or hire or otherwise), but does not include an agreement under which the property in the motor car passes at the time of the agreement or at any time before delivery of the motor car;

* * * * *

inspector means an inspector appointed under the Fair Trading Act 1999;

S. 3(1) def. of insolvent under administration inserted by No. 74/1996 s. 3(1)(c), substituted by No. 101/1998 s. 8(1)(b) (as amended by No. 74/2000 s. 3(Sch. 1 item 70)), repealed by No. 4/2008 s. 5(2).

s. 3

S. 3(1) def. of inspector inserted by No. 17/1999 s. 10(b).



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licence means a motor car trader's licence;

* * * * *

licensed motor car trader or licensee means a person holding a licence under this Act;

manufacturer means a person who carries on the business of manufacturing or assembling motor cars;

motor car means a motor vehicle within the meaning of the Road Safety Act 1986 (whether or not in working condition or complete) but does not include—

(a) an engine constructed for use as a motor tractor; or

(b) a motor vehicle so constructed that its engine is used to drive or operate an agricultural implement forming an integral part of the motor vehicle; or

(c) an exempt vehicle; or

(d) a vehicle that is not, and is not intended to be, used on a highway;

motor car trader means a person who otherwise than in the capacity of an employee carries on the business (whether or not that person carries on any other business) of trading in motor cars or holds out in any way as carrying on the business of trading in motor cars;

S. 3(1) def. of licence inserted by No. 74/1996 s. 3(1)(c).

s. 3

S. 3(1) def. of licensed auctioneer inserted by No. 74/1996 s. 3(1)(c), repealed by No. 84/2001 s. 9(1).



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occupier in relation to a premises, means a person who appears to be of or over 16 years of age and who appears to be in control of the premises;

* * * * *

owner (except in the definition of security interest) in relation to a motor car, includes any person who is the sole owner joint owner or part owner thereof and any person who has the possession and use thereof under or subject to a hire-purchase agreement or a goods mortgage or like instrument, but does not include any person in whom the property in the motor car or any absolute or conditional right or licence to take possession of the motor car is vested under or subject to a hire-purchase agreement or a goods mortgage or like instrument but who has not for the time being the possession and use thereof;

prescribed means prescribed by this Act or the regulations;

public auction means an auction at which people other than licensed motor car traders may attend and bid;

record includes any book, account, document, paper or other source of information compiled, recorded, stored in written form, or on microfilm, or by electronic process, or in any other manner or by any other means;

S. 3(1) def. of occupier inserted by No. 17/1999 s. 10(b).

s. 3

S. 3(1) def. of OFTBA Act inserted by No. 17/1999 s. 10(b), repealed by No. 35/2000 s. 47(b).

S. 3(1) def. of owner amended by No. 63/2010 s. 76(1).

S. 3(1) def. of prescribed inserted by No. 74/1996 s. 3(1)(d).

S. 3(1) def. of public auction inserted by No. 74/1996 s. 3(1)(d).

S. 3(1) def. of record inserted by No. 6/1989 s. 12(c).



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Registrar means the Registrar of the Authority appointed under the Business Licensing Authority Act 1998;

related company, in relation to a body corporate, means a body corporate that is a related body corporate (within the meaning of the Corporations Act) of that body corporate;

security interest in relation to a motor car means an interest in or a power over the motor car (whether arising by or pursuant to an instrument or transaction) which secures payment of a debt or other pecuniary obligation or the performance of any other obligation and includes any interest in or power over goods of a lessor, owner or other supplier of goods, but does not include a possessory lien or a pledge;

serious offence means an offence involving fraud, dishonesty, drug trafficking or violence punishable by imprisonment for 3 months or more;

special trader means a financier or manufacturer or a related company of a financier or manufacturer being a body corporate;

spouse of a person means a person to whom the person is married;

trading in motor cars means buying selling or exchanging motor cars, whether as principal or agent, and offering to buy sell or exchange motor cars, whether as principal or agent, and includes an advertisement or invitation

S. 3(1) def. of Registrar substituted by No. 52/1998 s. 140(f).

S. 3(1) def. of related company substituted by No. 44/2001 s. 3(Sch. item 84.1(b)).

S. 3(1) def. of serious offence inserted by No. 74/1996 s. 3(1)(e).

S. 3(1) def. of spouse inserted by No. 27/2001 s. 8(Sch. 6 item 3.1).

s. 3



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to treat but does not include an exempt transaction under subsection (3);

this Act includes the regulations;

Tribunal means Victorian Civil and Administrative Tribunal established by the Victorian Civil and Administrative Tribunal Act 1998;

used motor car includes a motor car that has, at any time before being offered or displayed for sale, been registered under the Road Safety Act 1986 or the Motor Car Act 1958 or under any Act or law of a place outside Victoria which contains provisions corresponding to the provisions of the Road Safety Act 1986 for registration of motor cars.

(2) The Governor in Council may by proclamation published in the Government Gazette declare any kind of motor car to be an exempt vehicle for the purposes of this Act.

(3) For the purposes of the definition of trading in motor cars the following are exempt transactions—

(a) buying, selling or exchanging motor cars or offering to buy sell or exchange motor cars by any person from to or with—

(i) licensed motor car traders;

(ii) special traders; or

(iii) employees of the person or, where the person is a body corporate, of a related company of the person; or

S. 3(1) def. of Tribunal inserted by No. 52/1998 s. 140(g).

s. 3



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(b) selling or offering to sell by a financier by public auction or public tender motor cars—

(i) that are returned to the financier by persons (not being motor car traders) who have entered into any contracts or agreements with the financier relating to them; or

(ii) of which the financier has taken possession in the exercise of any rights conferred by contracts or agreements made between the financier and the persons (not being motor car traders) formerly in possession of them; or

(c) selling or offering to sell motor cars by a financier by private treaty to purchasers introduced to the financier by persons from whom the motor cars have been repossessed; or

(d) selling or offering to sell motor cars by any person to persons to whom the motor cars have been let or hired by the person for a continuous period of at least three months immediately before the sale or offer to sell in each case; or

(e) buying or selling or offering to buy or sell at a public auction motor cars—

(i) whose last owner or user was a government department or a public statutory authority; or

(ii) owned by a company (not being a licensed motor car trader) which has been wound up, where the sale or offer to sell is effected by a liquidator pursuant to a power conferred on her or him by the Corporations Act or by an

s. 3

S. 3(3)(e)(i) substituted by No. 74/1996 s. 3(2).

S. 3(3)(e)(ii) amended by Nos 74/1996 s. 55(1)(a), 44/2001 s. 3(Sch. item 84.2).



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Order of the Supreme Court of Victoria.

(4) For the purposes of this Act, a reference to a finance lease is a reference to a contract for the hiring of a motor car where, before the contract is made, the owner acts in such a manner that the hirer ought reasonably to infer that the owner is willing, whether during or within a reasonable time after the period during which the contract is in force, to sell the motor car to the hirer.

(5) A reference to a person who is disqualified from holding a licence includes a reference to a person who is disqualified from holding a licence to act, or from acting, as a motor car trader in any State or Territory (regardless of whether or not motor car traders are referred to by that name in the relevant jurisdiction).

(6) A reference to a conviction for an offence includes a reference to—

(a) a finding of guilt in relation to the offence; and

(b) a conviction or finding of guilt in Australia or elsewhere.

(7) A reference to a date, code or other marking on a compliance plate, metal plate or metal component only refers to a date, code or marking stamped, engraved or otherwise placed on the plate or component in accordance with a law of the Commonwealth or of a State or Territory.

(8) A reference to a claim being admitted against the Fund includes a reference to a claim being admitted against the Motor Car Traders' Guarantee Fund established under the Motor Car Traders Act 1973.

S. 3(5) inserted by No. 74/1996 s. 3(3).

S. 3(6) inserted by No. 74/1996 s. 3(3).

s. 3

S. 3(7) inserted by No. 74/1996 s. 3(3).

S. 3(8) inserted by No. 74/1996 s. 3(3).



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(9) A reference to a person includes a reference to a partnership, unless a contrary intention appears.

(10) For the purposes of the definition of domestic partner in subsection (1)—

(a) registered relationship has the same meaning as in the Relationships Act 2008; and

(b) in determining whether persons who are not in a registered relationship are domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case; and

(c) a person is not a domestic partner of another person only because they are co-tenants.

4 Nature of transactions (1) For the purposes of this Act, if a motor car is

made the subject of a hire-purchase agreement or finance lease it is deemed to be sold to the hirer.

(2) For the purposes of this Act if a motor car trader sells or leases a motor car to a financier, (whether as principal or agent) in the expectation that the financier will sell or lease the motor car to a particular third person and the motor car is sold or leased to that third person, the motor car trader is deemed to have sold or leased the motor car to that third person.

* * * * *

S. 3(9) inserted by No. 74/1996 s. 3(3).

S. 3(10) inserted by No. 27/2001 s. 8(Sch. 6 item 3.2), substituted by No. 12/2008 s. 73(1)(Sch. 1 item 41.2).

s. 4

S. 5 repealed by No. 74/1996 s. 51(a).



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* * * * *

_______________

S. 6 amended by No. 54/1989 s. 35(3), repealed by No. 74/1996 s. 51(a).

s. 6

Part 2—Licences


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PART 2—LICENCES

Division 1—Trading in motor cars

7 Motor car traders to be licensed (1) Subject to this Act, a person must not carry on a

business of trading in motor cars unless that person is the holder of a motor car trader's licence.

Penalty: 100 penalty units for each motor car bought, sold or exchanged or offered to be bought, sold or exchanged in contravention of this subsection.

(2) If a person is convicted of an offence against subsection (1), the court may, in addition to or substitution for any penalty it may impose, order the person to pay a fine equal to 15 per centum of the sale price of each motor car with respect to which the offence was committed.

7A Deemed trading in motor cars (1) A person who buys, sells or exchanges, or offers

to buy, sell or exchange, 4 or more motor cars in any period of 12 months (whether as a principal or as an agent) is deemed to be a motor car trader carrying on a business of trading in motor cars.

(2) Subsection (1) does not apply if the person can prove that she, he or it did not, in that period, carry on the business of trading in motor cars and did not hold herself, himself or itself out as carrying on the business of trading in motor cars.

(3) In counting the number of motor cars bought, sold or exchanged by a person, any purchase, sale or exchange—

(a) that is an exempt transaction for the purposes of the definition of trading in motor cars is not to be counted;

s. 7

S. 7A inserted by No. 74/1996 s. 4.

Part 2—Licences


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(b) that is from, to or with a licensed motor car trader is not to be counted.

(4) In counting the number of motor cars offered for purchase, sale or exchange by a person, any offer—

(a) that would result in an exempt transaction for the purposes of the definition of trading in motor cars if it was to be accepted is not to be counted;

(b) that is made to a licensed motor car trader is not to be counted.

(5) In this section an offer to sell includes an invitation to treat and the publishing (or authorising the publication) of an advertisement (including by means of broadcast or electronic communication).

(6) A person who buys, sells or exchanges less than 4 motor cars in any period of 12 months may still be a motor car trader carrying on a business of trading in motor cars, and nothing in this section is intended to interfere with that possibility.

Division 2—Issue of licences

8 Application for licence

(1) An application for a licence may be made to the Authority by—

(a) a person of or over the age of 18 years;

(b) a partnership; or

(c) a body corporate.

(2) The application must be in the form approved by the Authority and must be signed—

(a) if the application is made by a natural person—by that person; or

S. 7A(5) amended by No. 4/2008 s. 6.

s. 8

S. 8(1) amended by No. 52/1998 s. 141(1).

S. 8(2) amended by No. 52/1998 s. 141(2).

Part 2—Licences


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(b) if the application is made by a partnership—by one of the partners who has the authority of the other partners to sign on behalf of those partners; or

(c) if the application is made by a body corporate—by a director of the body corporate who has the authority of the other directors to sign on behalf of the body corporate.

(3) An application must be accompanied by the prescribed fee for the application and may be accompanied by the first annual fee for the licence.

* * * * *

(5) An application must specify—

(a) the name and address—

(i) if the application is made by a natural person—of that person; or

(ii) if the application is made by a partnership—of each partner; or

(iii) if the application is made by a body corporate—of each director of the body corporate; and

(b) if the application is made by a body corporate—the date and place of incorporation of the body corporate, its corporate name and address of its registered office; and

(c) the date upon which the applicant intends to commence trading in motor cars; and

S. 8(2)(b) amended by No. 8/2003 s. 60(a).

S. 8(2)(c) amended by No. 8/2003 s. 60(b).

S. 8(3) amended by No. 74/1996 s. 51(b).

S. 8(4) repealed by No. 74/1996 s. 51(a).

s. 8

Part 2—Licences


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(d) the address of the place that, if a licence were granted pursuant to the application, would be the principal place of business of the licensee and the address of each other place at which the licensee proposes to carry on business; and

(e) whether any previous applications for a licence had been made or whether the applicant has been a licensed motor car trader or been employed by a motor car trader; and

(f) the type of trade in motor cars which the applicant proposes to conduct and the financial resources of the applicant to conduct that type of business; and

(g) such other matters as may be prescribed.

9 Refund of fee if application withdrawn Where an application is withdrawn before the Authority commences consideration of the application or an application is refused, the Authority must refund the licence fee that accompanied the application.

10 Notice of changes to details in application If, before a decision is made under section 13 to grant or refuse a licence, a material change occurs in any of the details provided in the application for the licence, the applicant must give the Authority written details of the change as soon as practicable after the applicant becomes aware of the change.

Penalty: 25 penalty units.

s. 9

S. 10 repealed by No. 74/1996 s. 39(3), new s. 10 inserted by No. 52/1998 s. 142.

Part 2—Licences


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11 Notice of application (1) Where an application for a licence is made in

accordance with section 8, the Authority must, except in the prescribed circumstances, give any details of the application that the Authority considers relevant to the Director and the Chief Commissioner of Police.

(2) The Director and the Chief Commissioner of Police, upon receiving details of the application, must make such inquiries in relation to the application as the Director or the Chief Commissioner of Police considers appropriate.

(3) The Director and the Chief Commissioner of Police, after receiving the results of the inquiries, must report to the Authority.

(4) A report may include recommendations.

11A Consent to disclosure of information (1) The Authority may require a licensee or an

applicant for a motor car trader's licence to provide the Authority, at the time of submitting the application or at any time during the currency of the licence, with any consent required by another person or body to enable the Authority to check or confirm information relevant to the licence or application.

(2) Without limiting subsection (1), consent includes—

(a) the consent of the licensee or the applicant; and

(b) the consent of another person other than the licensee or the applicant; and

s. 11

S. 11(1) amended by No. 52/1998 s. 143(1)(2)(a).

S. 11(2) amended by No. 52/1998 s. 143(2)(b).

S. 11(3) amended by No. 52/1998 s. 143(1).

S. 11(4) inserted by No. 52/1998 s. 143(3).

S. 11A inserted by No. 74/1996 s. 5, repealed by No. 52/1998 s. 144, new s. 11A inserted by No. 8/2003 s. 61.

Part 2—Licences


20

(c) if the licensee or applicant is a corporation, the consent of a director of the corporation or a member of the corporation.

(3) The Authority may refuse to consider an application for a licence if the applicant does not provide the Authority with the required consent within 14 days after the requirement is made.

12 Consideration of application (1) In considering an application for a licence, the

Authority may—

(a) conduct any inquiries it thinks fit;

(b) require an applicant to provide any further information that the Authority thinks fit in the manner required by the Authority;

(c) seek advice and information on the application from any other person or body or source as it thinks fit.

(2) The Authority may engage or appoint any person or body to assist it in considering an application.

(3) The Authority may refuse to grant a licence to an applicant if the applicant does not provide the further information required within a reasonable time of the requirement being made.

12A Provision of information for the purposes of this Act

Despite anything to the contrary in section 18 of the Business Licensing Authority Act 1998, for the purposes of determining compliance with this Act and for carrying out the functions of the Authority or the Director under this Act—

(a) the Authority may disclose to the Committee, any information collected in the course of carrying out the Authority's functions under this Act; and

S. 12 amended by No. 74/1996 s. 6(1)(2), substituted by No. 52/1998 s. 145.

s. 12


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21

(b) the Director may disclose to the Authority and the Committee, any information collected in the course of carrying out the Director's functions under this Act; and

(c) the Committee must disclose to the Authority the details of any successful claim made on the Fund in relation to a motor car trader; and

(d) the Committee may disclose to the Authority and the Director, any information collected by the Committee in the course of carrying out the Committee's functions under this Act in relation to the Fund.

13 Grant or refusal of licence (1) The Authority must grant a licence to an applicant

if it is satisfied that—

(a) the application complies with this Act; and

(b) the prescribed fee for the application has been paid; and

(c) any required information has been provided by the applicant under section 12; and

(d) there are no grounds for refusal of the application under subsection (4) or (6).

(2) The Authority must refuse an application for a licence if it is satisfied that—

(a) the application does not comply with this Act; or

(b) the prescribed fee for the application has not been paid; or

(c) any required information has not been provided by the applicant under section 12; or

s. 13

S. 13(1) substituted by No. 52/1998 s. 146(1).


Part 2—Licences


22

(d) a ground for refusal of the application exists under subsection (4) or (6).

(3) The Authority is not required to conduct an oral hearing to determine whether to grant a licence or refuse an application for a licence.

(4) An application for a licence made by a natural person must be refused if it appears to the Authority—

(a) the applicant has not attained the age of 18 years; or

(b) the applicant is disqualified from holding a licence under this Act or an Act providing for the licensing of motor car traders in any other State or in a Territory; or

(c) the applicant is an insolvent under administration; or

(d) the applicant does not have, or is not likely to continue to have, sufficient financial resources to carry on the business of trading in motor cars proposed by the applicant; or

(e) the applicant is not a person likely to carry on such a business honestly and fairly; or

(f) the applicant does not have sufficient expertise or knowledge of this Act and regulations to enable the applicant to carry on such a business; or

S. 13(3) substituted by No. 52/1998 s. 146(1), amended by No. 4/2008 s. 7(1).

S. 13(4)(b) substituted by Nos 74/1996 s. 7(1)(a), 52/1998 s. 146(2).

s. 13

S. 13(4)(c) substituted by No. 74/1996 s. 7(1)(a).

S. 13(4)(e) amended by No. 52/1998 s. 146(3).

Part 2—Licences


23

(g) the applicant is in any other way not a fit and proper person to be a licensee; or

(h) the applicant does not have, or is not likely to have, premises in which the applicant can lawfully carry on such a business;

(i) the applicant is not likely to maintain effective control of such a business; or

(j) the applicant is a director or officer of a corporation that is disqualified from holding a licence or was a director or officer of such a corporation when the corporation was disqualified; or

(k) the applicant is a represented person within the meaning of the Guardianship and Administration Board Act 1986; or

(l) the applicant has been convicted or been found guilty of a serious offence (whether or not a conviction was recorded) within the last 10 years (unless the applicant has obtained permission under section 29B); or

(m) the applicant has had a claim admitted against the Fund (unless the applicant has obtained permission under section 29A); or

(n) the applicant is or was a partner or director of, or a person concerned in the management of, a partnership or body corporate that has had a claim admitted against the Fund in relation to an act or omission that occurred at the time the person was a partner or director

S. 13(4)(h) amended by No. 74/1996 s. 7(1)(b), substituted by No. 52/1998 s. 146(4).

S. 13(4)(i) inserted by No. 74/1996 s. 7(1)(b).

S. 13(4)(j) inserted by No. 74/1996 s. 7(1)(b).

S. 13(4)(k) inserted by No. 74/1996 s. 7(1)(b).

S. 13(4)(l) inserted by No. 74/1996 s. 7(1)(b), amended by No. 8/2003 s. 63.

s. 13

S. 13(4)(m) inserted by No. 74/1996 s. 7(1)(b), amended by No. 4/2008 s. 7(2).

S. 13(4)(n) inserted by No. 4/2008 s. 7(3).

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24

of, or a person concerned in the management of, the partnership or body corporate (unless the applicant has obtained permission under section 29A).

(5) Without affecting the generality of subsection (4)(g) or (6)(f), the Authority may, in determining whether an applicant is not a fit and proper person to be a licensee, have regard (if such be the case) to the fact that the applicant—

(a) is an associate (within the meaning of section 13A) of a person—

(i) who has, within the last 10 years, been convicted or been found guilty of a serious offence (whether or not a conviction was recorded); or

(ii) who has had a claim admitted against the Fund; or

(iii) who the Authority is satisfied would not be a fit and proper person to be a licensee if the person were to apply for a licence personally; or

(b) is an associate (within the meaning of section 13A) of a body corporate that has as a director or secretary a person—

(i) who has, within the last 10 years, been convicted or been found guilty of a serious offence (whether or not a conviction was recorded); or

(ii) who has had a claim admitted against the Fund; or

(iii) who the Authority is satisfied would not be a fit and proper person to be a licensee if the director or secretary were to apply for a licence personally; or

S. 13(5) amended by No. 74/1996 s. 7(2)(a).

S. 13(5)(a) substituted by No. 74/1996 s. 7(2)(b), amended by No. 8/2003 s. 63, substituted by No. 4/2008 s. 7(4).

s. 13

S. 13(5)(b) substituted by No. 74/1996 s. 7(2)(b), amended by No. 8/2003 s. 63, substituted by No. 4/2008 s. 7(4).

Part 2—Licences


25

(c) was, at the time of the making of the determination, the subject of a charge pending in relation to a serious offence.

(6) An application for a licence made by a partnership or a body corporate must be refused if it appears to the Authority that—

(a) a person concerned in the management of the partnership or body corporate has not attained the age of 18 years; or

(b) the partnership or body corporate is disqualified from holding a licence under this Act or an Act providing for the licensing of motor car traders in any other State or in a Territory; or

(ba) in the case of a body corporate, the applicant is an externally-administered body corporate; or

(bb) in the case of a partnership, any of the partners is an insolvent under administration; or

(c) the partnership or body corporate does not have, or is not likely to continue to have, sufficient financial resources to enable it to carry on the business of trading in motor cars proposed by the partnership or body corporate; or

(d) the partnership or body corporate is not likely to carry on such a business honestly and fairly; or

S. 13(5)(c) substituted by No. 74/1996 s. 7(2)(b).

s. 13

S. 13(6)(ba) inserted by No. 52/1998 s. 146(5), amended by No. 101/1998 s. 8(2)(a).

S. 13(6)(bb) inserted by No. 52/1998 s. 146(5).

S. 13(6)(d) amended by No. 52/1998 s. 146(6).

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26

(e) the partners or officers of the partnership or body corporate are such that it would not have sufficient expertise or knowledge of this Act and regulations to enable it to carry on such a business; or

(f) the reputation of the partnership or body corporate is such that it would not be a fit and proper person to be a licensee; or

(g) in the case of a body corporate, an officer of the body corporate is disqualified from being an officer of a body corporate that is a licensee; or

(h) a partner or director of, or a person concerned in the management of, the partnership or body corporate is not of good reputation or character or in any other way would not be a fit and proper person to be a licensee if the partner, director or person were to apply for the licence personally; or

(i) in the case of a body corporate, any person (other than an officer of the body corporate) who, in the opinion of the Authority, appears to have control, or substantial control, of the body corporate is not of good reputation and character or is not likely to exercise that control honestly and fairly; or

(j) the partnership or body corporate does not have, or is not likely to have, premises in which it can lawfully carry on such a business;

(k) the partnership or body corporate is not likely to maintain effective control of such a business;

s. 13

S. 13(6)(j) amended by No. 74/1996 s. 7(3), substituted by No. 52/1998 s. 146(7).

S. 13(6)(k) inserted by No. 74/1996 s. 7(3).

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27

(l) a partner or director of, or a person concerned in the management of, the partnership or body corporate—

(i) is a represented person within the meaning of the Guardianship and Administration Board Act 1986; or

(ii) has been convicted or been found guilty of a serious offence (whether or not a conviction was recorded) (unless she, he or it has obtained permission under section 29B); or

(iii) has had a claim admitted against the Fund (unless she, he or it has obtained permission under section 29A); or

(iiia) is or was a partner or director of, or a person concerned in the management of, another partnership or body corporate that has had a claim admitted against the Fund in relation to an act or omission that occurred at the time the person was a partner or director of, or a person concerned in the management of, the partnership or body corporate (unless the person has obtained permission under section 29A); or

(iv) is disqualified from holding a licence; or

(m) the body corporate has been convicted or been found guilty of a serious offence (whether or not a conviction was recorded) (unless it has obtained permission under section 29B);

(n) the partnership or body corporate has had a claim admitted against the Fund (unless it has obtained permission under section 29A).

S. 13(6)(l) inserted by No. 74/1996 s. 7(3).

S. 13(6)(l)(ii) amended by No. 8/2003 s. 63.

S. 13(6)(l)(iiia) inserted by No. 4/2008 s. 7(5).

s. 13

S. 13(6)(m) inserted by No. 74/1996 s. 7(3), amended by No. 8/2003 s. 63.

S. 13(6)(n) inserted by No. 74/1996 s. 7(3).

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28

* * * * *

* * * * *

(9) If the Authority refuses an application for a licence, the Authority must—

(a) notify the applicant in writing of the refusal within 14 days after the refusal; and

(b) if the application was accompanied by the first annual fee for the licence, refund the fee to the applicant, as soon as practicable.

(9A) The notice of refusal must specify the ground under this section for refusal of the application.

(10) If the Authority grants a licence—

(a) the Authority must notify the applicant in writing of that decision as soon as practicable; and

(b) the Registrar must not issue the licence under section 18 unless the prescribed annual fee for each place where the applicant carries on or proposes to carry on business is, or has been, paid to the Authority.

(11) Subject to this Act, a licence issued under section 18 authorises the motor car trader to whom it has been granted to be, and to act, as a motor car trader until the licence is surrendered, suspended or cancelled.

S. 13(7) amended by No. 74/1996 s. 7(4)(a)(b), repealed by No. 52/1998 s. 146(8).

S. 13(8) repealed by No. 52/1998 s. 146(8).


s. 13

S. 13(9A) inserted by No. 52/1998 s. 146(10).


S. 13(11) inserted by No. 74/1996 s. 7(5), amended by No. 52/1998 s. 146(12).

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13A Meaning of associate in section 13 (1) For the purposes of section 13(5), a natural person

is an associate of another person if she or he—

(a) is the spouse or domestic partner of that other person; or

(b) is a business partner of that other person or has entered into a business arrangement or relationship with that other person.

(2) For the purposes of section 13(5), a natural person is an associate of a body corporate if she or he—

(a) is a director or secretary of the body corporate or a spouse or domestic partner of such a director or secretary; or

(b) holds or will hold any relevant financial interest, or is or will be entitled to exercise any relevant power (whether in her or his own right or on behalf of any other person), in the business of the body corporate and thereby is able or will be able to exercise a significant influence over, or with respect to, the management or operation of that business; or

(c) holds or will hold any relevant position (whether in her or his own right or on behalf of any other person) in the business of the body corporate.

(3) For the purposes of section 13(5), a body corporate is an associate of a person if it—

(a) is a business partner of that other person; or

(b) holds or will hold any relevant financial interest, or is or will be entitled to exercise any relevant power (whether in its own right


s. 13A

S. 13A(1)(a) amended by No. 27/2001 s. 8(Sch. 6 item 3.3).

S. 13A(2)(a) amended by No. 27/2001 s. 8(Sch. 6 item 3.3).

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30

or on behalf of any other person), in the business of the body corporate and thereby is able or will be able to exercise a significant influence over, or with respect to, the management or operation of that business.

(4) In this section—

relevant financial interest, in relation to 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

(c) any entitlement to receive any payment as a result of money advanced to the business;

relevant position, in relation to a business, means the position of director, manager, secretary or other executive position, however that position is designated;

relevant power, in relation to a business, 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 in the business; or

(b) to elect or appoint any person to any relevant position in the business.

s. 13A

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14 Conditions of licence (1) The Authority may—

(a) impose conditions that must be complied with before it grants a licence; and

(b) on granting a licence, and at any other time, impose conditions or restrictions on a licence; and

(c) at any time on the application of any person, or of its own motion, vary or revoke any of those conditions or restrictions.

(2) A licensee must comply with the conditions or restrictions of a licence.


(2A) Without limiting the generality of subsection (1), the Authority may impose conditions or vary or revoke conditions under this section at the request of the Committee.

(3) Without limiting the generality of subsection (1), the Authority may require as a condition that the person who holds, or is to hold, the licence must provide the Authority or the Committee with a guarantee or an indemnity in a form, and secured in a manner, specified by the Authority.

15 Endorsement of licence

(1) If under section 14, 29D or 31, a condition or restriction is imposed on a licensee or varied or revoked, the Authority may require the licensee to produce the licence for endorsement of or variation or revocation of the condition or restriction.

(2) A licensee must comply with the requirement under subsection (1).


s. 14


S. 14(2) amended by No. 74/1996 s. 50(a).


S. 14(3) inserted by No. 74/1996 s. 9(2), amended by No. 4/2008 s. 8(2).

S. 15(1) substituted by No. 52/1998 s. 147.

S. 15(2) amended by No. 74/1996 s. 50(b).

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15A 2 year ban on applying for licence after refusal of application

(1) If a person's application for a licence is refused by the Authority, the person is not entitled to lodge another application for a licence within 2 years after the refusal.

(2) If the Authority is satisfied that there are special circumstances in a particular case, it may permit a person to lodge an application within 2 years after the refusal.

16 Authority to sell motor cars at public auction (1) A licensed motor car trader may apply to the

Authority for an endorsement to the licence authorizing the holder to conduct sales of motor cars at public auction.

(2) If an application is made under subsection (1), the Authority must give a copy of the application to the Director.

* * * * *

(4) The Authority may grant or refuse the application.

(5) If the Authority refuses an application, the Authority must, within 14 days after the refusal, notify the applicant in writing of the refusal.

(6) If the Authority grants an application, the Authority may on its own initiative or on the recommendation of the Director or the Chief Commissioner of Police—


s. 15A

S. 16(1) amended by No. 52/1998 s. 148(1).

S. 16(2) amended by No. 52/1998 s. 148(1).

S. 16(3) repealed by No. 52/1998 s. 148(2).


S. 16(5) amended by No. 52/1998 s. 148(4).

S. 16(6) amended by No. 52/1998 s. 148(5).

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(a) impose conditions or restrictions on the authority of the holder to conduct sales of motor cars by public auction; and

(b) vary or revoke any such conditions or restrictions.

(7) If an application is granted or an authority cancelled under this section, the Registrar must do all things necessary to give effect to the grant of the application or the cancellation of the authority.

(8) The Authority may, at any time, by notice in writing given to a licensed motor car trader, cancel an endorsement of the licence made under this section.

(9) A motor car trader must not—

(a) conduct a sale of a motor car at public auction if the motor car trader is not the holder of a motor car trader's licence authorizing the holder to conduct sales of motor cars at public auction; or

(b) fail to comply with any condition or restriction to which the motor car trader's authority to conduct sales of motor cars at public auction is subject.


* * * * *

17 Name under which licensed motor car trader may operate

(1) Subject to the Business Names Act 1962, the Authority may authorize the licensee to carry on business as a motor car trader under a name or names in addition to or in substitution for the name of the licensee.

S. 16(10) repealed by No. 74/1996 s. 51(a).

s. 17

S. 17(1) amended by No. 52/1998 s. 149(1).

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(2) A person must not carry on business as a motor car trader or hold himself or herself out as a motor car trader under a name other than the name of the licensee or a name under which the licensee is authorized so to do in accordance with subsection (1).


(3) The Authority may at any time vary or revoke an authorisation given under subsection (1).

18 Form of licence (1) A licence granted under section 13—

(a) must be in a form approved by the Authority; and

(b) must be issued and signed by the Registrar; and

(c) if the Authority authorizes the licensee to carry on business under a name or names in addition to, or in substitution for, the name of the licensee—must bear an endorsement to that effect.

(2) If the Authority adds to or varies or revokes an authorisation under section 17 the Authority must require the licensee to produce the licence to the Registrar for the addition of an endorsement or the amendment or revocation of an endorsement on the licence referred to in subsection (1)(c).

(3) A licensee must comply with the requirement under subsection (2).


S. 17(3) inserted by No. 52/1998 s. 149(2).

s. 18

S. 18(1)(a) substituted by No. 52/1998 s. 150(1).

S. 18(1)(c) amended by No. 52/1998 s. 150(2).


S. 18(3) inserted by No. 52/1998 s. 150(3).

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19 Change in partnership (1) If a licence is granted to a partnership and there is

a change in the partnership—

(a) where there is a new partnership—

(i) the partnership must not continue to carry on business as a motor car trader unless it has applied for a new licence; and

(ii) if the partnership applies for a licence, it may carry on business as a motor car trader until the application is granted or refused as if the partnership were the holder of a licence; and

(b) where there is not a new partnership—

(i) a former member of the partnership must not carry on business as a motor car trader unless he or she applies for a new licence; and

(ii) if he or she applies for a licence, he or she may carry on business as a motor car trader until the application is granted or refused as if he or she were the holder of a licence.

(2) The Authority may not refuse an application for a licence made by a partnership to which subsection (1) applies by reason only that a partner, or a person concerned in the management of, the partnership is not of good reputation or character or in any other way would not be a fit and proper person to be a licensee if the partner or person were to apply for the licence personally unless that partner or person was not a member of the former partnership.

S. 19 substituted by No. 6/1989 s. 13(1).

s. 19

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19A Change in directors of bodies corporate If a licence is granted to a body corporate and at any time—

(a) in the case of a proprietary company there are less than the minimum number of directors required under the Corporations Act in relation to proprietary companies of that class; or

(b) in the case of a public company there are less than three directors—

the body corporate must, within 14 days, cease trading as a motor car trader.


20 Licensee to give notice of certain changes

(1) If—

(a) a person ceases to be or is appointed as a director of a body corporate that is a licensee; or

(b) a licensee ceases or commences to carry on business at a place; or

(c) any other change that is a prescribed change occurs in relation to a licensee—

the licensee must give notice in writing to the Authority within 14 days after the change occurs together with particulars of the change.


S. 19A inserted by No. 6/1989 s. 13(1).

s. 19A

S. 19A(a) substituted by No. 52/1998 s. 151, amended by No. 44/2001 s. 3(Sch. item 84.2).

S. 20 amended by No. 6/1989 s. 13(2)(a).

S. 20(1) amended by No. 52/1998 s. 152.

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(2) If a licence is granted to a partnership and there is a change in the partnership, the partnership and each person who was a member of the partnership immediately before the change must give notice in writing of the dissolution of the partnership to the Authority within 14 days after the change occurs.

(3) A former member of a partnership need not comply with subsection (2) if she or he knows the partnership or another former member has already given written notice of the change to the Authority.

21 Licences to be returned If a licensee—

(a) ceases to carry on business at a place; or

(b) ceases to carry on a business of trading in motor cars; or

(c) is required by section 19A to cease trading as a motor car trader; or

(d) commences to carry on business at a place—

the licensee must, within 14 days, return the form of licence to the Authority for endorsement or cancellation, as the case may be.


S. 20(2) inserted by No. 6/1989 s. 13(2)(b), amended by Nos 74/1996 s. 11(1), 52/1998 s. 152.

S. 20(3) inserted by No. 74/1996 s. 11(2), amended by No. 52/1998 s. 152.

S. 21 amended by No. 52/1998 s. 153.

s. 21

S. 21(a) amended by No. 6/1989 s. 13(3)(a).

S. 21(c) inserted by No. 6/1989 s. 13(3)(b), amended by No. 74/1996 s. 12.

S. 21(d) inserted by No. 74/1996 s. 12.

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22 Register to be kept (1) The Registrar must keep a register of licensed

motor car traders open for public inspection in the form determined by the Registrar.

* * * * *

(3) A person, on application in accordance with the regulations (if any) and on payment of the prescribed fee (if any)—

(a) may inspect the Register of Motor Car Traders; and

(b) may make a copy of, or take extracts from, the register.

(4) The purposes of the register are—

(a) to enable members of the public to have access to information about licensees; and

(b) to record the name of any person, partnership or body corporate declared ineligible to be a licensee or director of, partner of or person concerned in the management of a motor car trader or any person declared ineligible to be employed in a customer service capacity by a motor car trader.

(5) The register must include details of the following in relation to each licensed motor car trader—

(a) licence number issued by the Authority;

(b) name of licensee;

(c) date licence granted;

(d) date licence surrendered, cancelled or suspended;

s. 22


S. 22(2) substituted by No. 52/1998 s. 154, repealed by No. 8/2003 s. 64(1).

S. 22(4) inserted by No. 8/2003 s. 64(2).

S. 22(5) inserted by No. 8/2003 s. 64(2).

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(e) licence conditions;

(f) details of any Tribunal or court orders concerning the licensee affecting the licence and of which the Registrar has notice;

(g) details of any claims allowed by the Fund (or any like fund established under a previous enactment) in relation to a licensee and of which the Registrar has notice;

(h) business names under which a licensee is authorised to operate, including the date of commencement and cessation of operating under those names;

(i) business addresses and telephone numbers of any premises from which a motor car trading business is conducted, including the date of commencement and cessation of business at those premises;

(j) if the licensee is a corporation—

(i) the names of the directors;

(ii) the date of appointment of each director;

(iii) the date of cessation of appointment of each director;

(k) if the licensee is a partnership—

(i) the names of the partners;

(ii) the date each person became a partner;

(iii) the date a partner ceased to be a partner;

(l) Australian Business Number (if any) issued under the A New Tax System (Australian Business Number) Act 1999 of the Commonwealth;

s. 22

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(m) Internet site address maintained by the licensee for the purposes of a motor car trader's business (if any).

(6) The register must also contain details of—

(a) all permission determinations made under sections 29A, 29B and 29C;

(b) all applications for a licence refused by the Authority during the last two years;

(c) any other information prescribed by the regulations as forming part of the register.

(7) Subject to the Public Records Act 1973, the Registrar may, if in his or her opinion it is no longer necessary or desirable to retain it, remove any information from the register 12 years after the information was added to the register.

(8) In the exercise and performance of his or her duties under this section, the Registrar must act on any information which appears to the Registrar sufficient in each case.

23 Annual licence fee and statement

(1) A licensee must pay to the Authority the annual licence fee required by the regulations on each anniversary of the date the licensee was granted a licence under section 13 (or under section 15 of the Motor Car Traders Act 1973).

(2) An annual licence fee may be paid at any time in the 6 weeks before it falls due.

S. 22(6) inserted by No. 8/2003 s. 64(2).

S. 22(7) inserted by No. 8/2003 s. 64(2).

S. 22(8) inserted by No. 8/2003 s. 64(2).

S. 23 repealed by No. 74/1996 s. 13(1), new s. 23 inserted by No. 74/1996 s. 13(2).

s. 23

S. 23(1) amended by No. 52/1998 s. 155.

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(3) The payment must be accompanied by a statement in respect of the year up to the date that the payment is made that is in a form approved by the Authority and that is signed—

(a) by the licensee, if the licensee is a natural person; or

(b) if the licensee is a body corporate, by a director of the body corporate; or

(c) if the licensee is a partnership, by a partner.

(4) The statement must contain any information, and be accompanied by any documents, required by the Authority.

24 Extension of time (1) On payment of any late fee required by the

regulations, a person may apply to the Authority for an extension of time, or a further extension of time, in which to comply with section 23.

(2) The Authority may grant the application if it is made before the date in relation to which the extension is sought.

24A Failure to comply with section 23 (1) If a licensee fails to comply with section 23, the

Authority must give the licensee a written notice stating that unless the licensee complies with that section and also pays to the Authority the late payment or lodgement fee required by the regulations by the date specified in the notice, the licensee's licence will be cancelled.

(2) The date specified in the notice must be at least 14 days after the date on which the notice is given to the licensee.

S. 24 repealed by No. 74/1996 s. 13(1), new s. 24 inserted by No. 74/1996 s. 13(2).

S. 24A inserted by No. 74/1996 s. 13(2).

s. 24

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42

(3) If the licensee has not complied with section 23 and paid the late payment or lodgement fee by the date specified in the notice, the licence is automatically cancelled.

25 Display of licence (1) A person who is carrying on the business of

trading in motor cars must display the licence or a copy of it in a prominent position at each place at which business is carried on pursuant to the licence and must produce the licence on demand made by a member of the police force or an inspector.

(2) A person must not refuse or fail to produce the licence in accordance with a demand made of the person under subsection (1).


26 Duplicate licence If the Registrar is satisfied that a licence has been lost destroyed or damaged, the Registrar must, on payment of the prescribed fee, issue a duplicate licence.

27 Surrender of licence (1) Subject to subsection (2), a licensee may at any

time by notice in writing to the Authority, surrender the licence.

(2) If an application has been made to the Tribunal under section 30 for an inquiry in relation to a licence, the licensee may not, without leave of the Tribunal, surrender the licence unless the Tribunal has determined to take action under section 31(1) or has determined not to take any such action.

S. 25(1) amended by Nos 74/1996 s. 51(c), 17/1999 s. 11.

S. 25(2) amended by No. 74/1996 s. 50(b).

s. 25

S. 27(1) amended by No. 52/1998 s. 156(1).


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43

(3) The person who held a licence that has been surrendered must return the licence to the Authority within 14 days of surrendering it.


28 Automatic cancellation of licence on bankruptcy etc. (1) A licence is automatically cancelled if the

licensee—

(a) becomes an insolvent under administration; or

(b) becomes an externally-administered body corporate; or

(c) becomes a represented person within the meaning of the Guardianship and Administration Board Act 1986.

(2) A licence is automatically cancelled 30 days after the licensee—

(a) is convicted or found guilty of a serious offence (whether or not a conviction was recorded); or

(b) is disqualified from holding a licence.

(3) A licence is automatically cancelled if a partner of a licensee that is a partnership, or a director of a licensee that is a body corporate—

(a) is or has been convicted or found guilty of a serious offence (whether or not a conviction was recorded) or is or has been disqualified from holding a licence; and

(b) is a partner or director of the licensee 30 days or more after the conviction or disqualification.

S. 27(3) inserted by No. 74/1996 s. 14.

S. 28 substituted by No. 74/1996 s. 15.

s. 28

S. 28(1)(b) amended by No. 101/1998 s. 8(2)(b).

S. 28(2)(a) amended by No. 8/2003 s. 65.

S. 28(3)(a) amended by Nos 8/2003 s. 65, 63/2010 s. 76(2)(a).

S. 28(3)(b) amended by No. 63/2010 s. 76(2)(b).

Part 2—Licences


44

(4) If a person whose licence would otherwise be cancelled by subsection (2)(a) or (3)(a) applies for permission under section 29B or 29C within the 30 day period referred to in that subsection, the person's licence is only automatically cancelled if the application is withdrawn or is refused by the Authority.

29 Automatic suspension of licence if Fund claim upheld

(1) A licence is automatically suspended 30 days after a claim is admitted against the Fund in relation to the licensee.

(1A) If a licence of a partnership or a body corporate is suspended under subsection (1), the licence of any partner or director of the partnership or body corporate is automatically suspended 30 days after the end of the application period for that partner or director.

(1B) A licence of a partnership or body corporate is automatically suspended at the end of the notice period for the partnership or body corporate if a person whose licence has been suspended under subsection (1A) is still a partner or director of, or a person concerned in the management of, the partnership or body corporate at the end of the notice period.

(2) If a person whose licence would otherwise be suspended by this section applies for permission under section 29A before the suspension takes effect, the person's licence is only automatically suspended if the application is withdrawn or is refused by the Authority.

(2A) The Authority must give notice in writing of a proposed suspension under subsection (1A) by serving it on the partner or director affected by the suspension.


s. 29


S. 29(1B) inserted by No. 4/2008 s. 9(1).


Part 2—Licences


45

(2B) The notice under subsection (2A) must state that—

(a) the person notified may apply under section 29A within 30 days after the date the notice was served on the person for permission to prevent the suspension from taking effect; and

(b) if the person does not apply under section 29A for permission or the application is refused or withdrawn, the licence of any other partnership or body corporate will be automatically suspended at the end of the notice period for that partnership or body corporate if the person is still a partner or director of, or a person concerned in the management of, the partnership or body corporate at the end of that notice period.

(2C) The Authority must serve notice in writing of a proposed suspension under subsection (1A) on a partnership or body corporate that is a licensee if the person who is subject to the proposed suspension is a partner or director of, or a person concerned in the management of, the partnership or body corporate.

(2D) The notice under subsection (2C) must state that—

(a) a notice has been served on a person under subsection (2A) and the date on which the notice was served; and

(b) if an application under section 29A is not made by that person or is refused or withdrawn, the licence of the partnership or body corporate will be automatically suspended if the person is still a partner or director of, or a person concerned in the management of, the partnership or body


S. 29(2C) inserted by No. 4/2008 s. 9(2).

S. 29(2D) inserted by No. 4/2008 s. 9(2).

s. 29

Part 2—Licences


46

corporate at the end of the notice period for that partnership or body corporate.

(3) Subsection (1) does not apply if the circumstances giving rise to a claim occurred before section 15 of the Motor Car Traders (Amendment) Act 1996 came into operation.

(4) Subsections (1A) and (1B) do not apply if the circumstances giving rise to a claim occurred before section 9 of the Motor Car Traders Amendment Act 2008 came into operation.


application period in relation to a person, means the later of—

(a) the period of 30 days after the date on which a notice was served on the person under subsection (2A); or

(b) if the person makes an application under section 29A within the period referred to in paragraph (a), the date of withdrawal or refusal of the application;

notice period in relation to a partnership or body corporate, means the period of 30 days after the end of the application period relating to a person who is a partner or director of, or a person concerned in the management of, the partnership or body corporate.

29A Person involved in Guarantee Fund claim may regain licence etc. in special circumstances

(1) This section applies to a person—

(a) in relation to whom a claim has been admitted against the Fund;

S. 29(3) amended by No. 4/2008 s. 9(3).

S. 29(4) inserted by No. 4/2008 s. 9(4).

S. 29(5) inserted by No. 4/2008 s. 9(4).


S. 29A(1) substituted by Nos 4/2008 s. 10(1), 63/2010 s. 76(3).

s. 29A

Part 2—Licences


47

(b) who was a partner or director of, or a person concerned in the management of, a partnership or body corporate that has had a claim admitted against the Fund in relation to an act or omission that occurred at the time the person was a partner or director of, or a person concerned in the management of, the partnership or body corporate.

(1A) For the purposes of this section, person includes a partnership.

(2) The person may apply to the Authority—

(a) to prevent a suspension under section 29 from taking effect or for the removal of a suspension under that section; or

(b) for permission to hold, or to continue to hold, a licence; or

(c) for permission to be employed as an employee of a motor car trader in a customer service capacity (within the meaning of section 35A); or

(d) for permission to be a partner or director of, or a person concerned in the management of, a motor car trader.

(2A) An application under this section must be in the form approved by the Authority and contain any information and be accompanied by any documents required by the Authority.

(2B) In considering an application under this section, the Authority may—


S. 29A(1A) inserted by No. 8/2003 s. 66(1), substituted by No. 4/2008 s. 10(1).

s. 29A

S. 29A(2A) inserted by No. 8/2003 s. 66(2).

S. 29A(2B) inserted by No. 8/2003 s. 66(2).

Part 2—Licences


48

(b) require the applicant to provide any further information that the Authority thinks fit in the manner required by the Authority;

(c) seek advice and information on the application from any other person or body as it thinks fit.

(2C) The Authority may refuse to give its permission if the applicant does not provide the further information required, or his or her consent for the Authority to obtain that information, within a reasonable time after the requirement is made.

(3) Subject to subsection (4), the Authority may grant the application if it is satisfied—

(a) that either—

(i) the person has refunded all amounts paid out of the Fund in respect of the claim; or

(ii) the person has agreed to refund all amounts paid out of the Fund in respect of the claim; and

(b) that having regard to the conduct of the person before and after the claim, there is no reasonable expectation that the person will not comply with this Act and the regulations in future; and

(c) that the granting of the application is not contrary to the public interest.

(4) The Authority may grant an application by a partnership or body corporate whose licence would otherwise be suspended under section 29(1B) if the Authority is satisfied that the granting of the application is not contrary to the public interest.

S. 29A(2C) inserted by No. 8/2003 s. 66(2).

S. 29A(3) amended by No. 4/2008 s. 10(2).

s. 29A

S. 29A(4) inserted by No. 4/2008 s. 10(3).

Part 2—Licences


49

29B Person with criminal record may be allowed limited right to hold licence etc.

(1) This section applies to a person who has been convicted or been found guilty of a serious offence (whether or not a conviction was recorded) within the last 10 years.

(2) The person may apply to the Authority for permission—

(a) to hold, or to continue to hold, a licence; or

(b) to be employed as an employee of a motor car trader in a customer service capacity (within the meaning of section 35A); or

(c) to be a partner or director of, or a person concerned in the management of, a motor car trader.






(2C) The Authority may refuse to give its permission if the applicant does not provide the further information required, or his or her consent for the Authority to obtain that information, within a reasonable time after the requirement is made.

S. 29B inserted by No. 74/1996 s. 15.

s. 29B

S. 29B(1) amended by No. 8/2003 s. 67(1).

S. 29B(2A) inserted by No. 8/2003 s. 67(2).

S. 29B(2B) inserted by No. 8/2003 s. 67(2).

S. 29B(2C) inserted by No. 8/2003 s. 67(2).

Part 2—Licences


50

(3) The Authority may give its permission if it is satisfied that it is not contrary to the public interest for it to do so.

29C Permission to continue to hold licence despite criminal act of partner or director

(1) This section applies if a licensee is a partnership or a body corporate and a partner or a director of the licensee is convicted or found guilty of a serious offence (whether or not a conviction was recorded).

(2) The licensee may apply to the Authority for permission to continue to hold its licence.






(2C) The Authority may refuse to consider the application if the applicant does not provide the further information required, or his or her consent for the Authority to obtain that information, within a reasonable time after the requirement is made.

S. 29C inserted by No. 74/1996 s. 15.

s. 29C

S. 29C(1) amended by No. 8/2003 s. 68(1).

S. 29C(2A) inserted by No. 8/2003 s. 68(2).

S. 29C(2B) inserted by No. 8/2003 s. 68(2).

S. 29C(2C) inserted by No. 8/2003 s. 68(2).

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(3) The Authority may give its permission if it is satisfied that it is not contrary to the public interest for it to do so.

29D Authority may impose conditions (1) In granting an application under section 29A, 29B

or 29C, the Authority may impose any conditions it considers appropriate to ensure the ongoing protection of the public interest.

(2) The Authority may at any time impose conditions in respect of the permission or vary or revoke any conditions previously imposed.

(3) A person to whom permission has been given must comply with any conditions imposed in respect of the permission.


(4) If the Authority is satisfied that any condition imposed in respect of a permission has been contravened or not complied with, it may revoke the permission.

Division 3—Disciplinary action

30 Disciplinary action

(1) The Director or the Chief Commissioner of Police may apply at any time to the Tribunal to conduct an inquiry to determine whether there are grounds for taking action under section 31 against a licensee.

S. 29D inserted by No. 74/1996 s. 15.

s. 29D

S. 29D(2) substituted by No. 52/1998 s. 157(1).

S. 29D(4) substituted by No. 52/1998 s. 157(2).

S. 30 amended by No. 6/1989 s. 13(4)(a)(b), substituted by No. 74/1996 s. 16.


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52

(2) There are grounds for taking action under section 31 against a licensee if—

(a) the licensee improperly obtained her, his or its licence; or

(b) the licensee has failed to comply with this Act or the regulations; or

(c) the licensee does not have, or is not likely to have, sufficient financial resources to enable the licensee to continue carrying on the business to which the licence relates; or

(d) the licensee's motor car trading business is being carried on in a dishonest, unfair or inefficient manner; or

(e) the licensee or a partner, director or officer of the licensee has engaged in discreditable conduct; or

(f) the licensee or a partner or director of the licensee or a person concerned in the management of the licensee is not, or has ceased to be, a fit and proper person to be a licensee or a partner or director of a licensee; or

(g) the premises of the licensee are not suitable to carry on the business of trading in motor cars; or

(h) the effective control of the business to which the licence relates is not, or is unlikely to remain, with the licensee; or

(i) the licensee would be refused a licence under section 13(4) or (6) for any other reason if the licensee were to apply for a new licence.

S. 30(2) amended by No. 52/1998 s. 158(2).

s. 30

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53

(3) If an application for an inquiry is lodged, the principal registrar of the Tribunal must—

(a) send a copy of the application to the licensee; and

(b) advise the licensee and the person making the application in writing of when and where the inquiry will be held.

(4) An inquiry must not start within 30 days of the date the application for the inquiry is lodged unless—

(a) the person who lodged the application, or the licensee, applies to the Tribunal for the inquiry to be started within that time; and

(b) the Tribunal is satisfied that there are exceptional circumstances.

30A Authority may temporarily suspend insolvent etc. trader without hearing

(1) If an application for an inquiry includes a ground based on section 30(2)(c), the Director may apply to the Tribunal in writing for the temporary suspension of the licensee's licence.

(2) A presidential member of the Tribunal may suspend the licence for a period of up to 14 days if she or he is satisfied that there are grounds for believing that the licensee does not have sufficient financial resources to enable the licensee to continue carrying on the business to which the licence relates.

(3) A presidential member of the Tribunal may suspend the licence without giving the licensee a chance to be heard and even though the licensee has not been given notice of either application.

S. 30(3) amended by No. 52/1998 s. 158(3).

S. 30(4)(a) amended by No. 52/1998 s. 158(4).

S. 30(4)(b) amended by No. 52/1998 s. 158(4).


s. 30A

S. 30A(1) amended by No. 52/1998 s. 159(1).

S. 30A(2) amended by No. 52/1998 s. 159(2).

S. 30A(3) amended by No. 52/1998 s. 159(3).

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54

(4) If a presidential member of the Tribunal considers an application under this section, she or he must not take part in the related inquiry under section 30.

(5) The Tribunal may—

(a) continue a suspension imposed under subsection (3) until the end of the inquiry; or

(b) re-impose (from a date specified by the Tribunal) a suspension on a licence formerly suspended under subsection (3) until the end of the inquiry; or

(c) revoke a suspension imposed under subsection (3).

(6) The principal registrar of the Tribunal must notify the licensee in writing of any suspension imposed under this section as quickly as possible.

31 Determination of disciplinary measures by Tribunal

(1) After conducting an inquiry, if the Tribunal is satisfied that there are grounds for taking action under this section against a licensee, the Tribunal may do one or more of the following—

(a) reprimand the licensee;

(b) order the licensee to pay into the Fund a penalty of up to $5000;

(c) require the licensee to comply within, or for, a specified time with a requirement specified by the Tribunal;

(d) suspend the licensee's licence for a specified period not exceeding 1 year;

S. 30A(4) amended by No. 52/1998 s. 159(4).

S. 30A(5) amended by No. 52/1998 s. 159(1).

S. 30A(5)(b) amended by No. 52/1998 s. 159(1).

S. 30A(6) amended by No. 52/1998 s. 159(5).

S. 31 amended by No. 52/1998 s. 160(5).

s. 31

S. 31(1) substituted by No. 74/1996 s. 17(1), amended by No. 52/1998 s. 160(1)(5).

S. 31(1)(b) amended by No. 52/1998 s. 160(2).

S. 31(1)(c) amended by No. 52/1998 s. 160(5).

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55

(e) require the licensee to enter into an undertaking to perform, or not to perform, certain tasks to be specified in the undertaking;

(f) impose a condition or restriction on the licensee's licence;

(g) if the ground for taking action under this section involved one or more people losing money, order the licensee to pay compensation to one or more of those people, but not so that the total amount the licensee must pay under this paragraph is more than $5000.

(2) As an alternative to taking action under one or more of subsections (1)(a), (b), (c), (d) and (f), the Tribunal may cancel the licensee's licence and disqualify the licensee (and any partner or director of the licensee) from holding a licence either permanently or for a specified period.

(2A) If the Tribunal orders the payment of an amount under subsection (1)(b) or (g)—

(a) it may order that the amount be paid by a specified date; and

(b) if the amount is not paid by that date, it may suspend the licence until the amount is paid and set a final payment date; and

(c) if the amount has not been paid by that final payment date, it may cancel the licence; and

(d) it may extend any period of time it sets under paragraph (a) or (b) at any time.

(2B) The Tribunal may suspend or cancel a licence under subsection (2A) without giving the licensee a chance to be heard.

S. 31(1)(e) substituted by No. 52/1998 s. 160(3).

S. 31(1)(g) amended by No. 52/1998 s. 160(4).

S. 31(2) substituted by No. 74/1996 s. 17(1), amended by No. 52/1998 s. 160(5).

S. 31(2A) inserted by No. 74/1996 s. 17(1), amended by No. 52/1998 s. 160(5)(6).

s. 31

S. 31(2B) inserted by No. 74/1996 s. 17(1), amended by No. 52/1998 s. 160(5).

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56

(3) If the Tribunal cancels or suspends a licence, the cancellation or suspension takes effect on and from such date as is determined by the Authority.

(4) If under subsection (1)(c), the Tribunal requires a licensee to comply with a requirement specified by it, the licensee must comply with the requirement within, or for, the time specified by the Tribunal under that paragraph.

31A Effect of suspension A person whose licence has been suspended is to be treated as a person who does not hold a licence while the licence is suspended, except for the purposes of sections 23, 24, 24A and 27.

31B Suspended and cancelled licences must be returned

(1) If the Tribunal suspends or cancels a licence, the person to whom the licence was issued must return the licence to the Authority within the period specified by the Tribunal by notice in writing given to the person.


(2) If a licence is automatically suspended or cancelled under this Act, the person to whom the licence was issued must return the licence to the Authority within 7 days of becoming aware of the suspension or cancellation.


S. 31(3) amended by No. 52/1998 s. 160(5).

S. 31(4) amended by Nos 74/1996 s. 17(2), 52/1998 s. 160(5).


s. 31A


S. 31B(1) amended by No. 52/1998 s. 161.

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57

Division 4—Miscellaneous

32 Application for review (1) A person whose interests are affected by a

decision of the Authority under section 13, 14, 17, 29A, 29B, 29C, 29D or 33 may apply to the Tribunal for review of the decision.

(2) An application for review must be made within 28 days after the later of—

(a) the day on which the decision is made; or

(b) if, under the Victorian Civil and Administrative Tribunal Act 1998, the person requests a statement of reasons for the decision, the day on which the statement of reasons is given to the person or the person is informed under section 46(5) of that Act that a statement of reasons will not be given.

33 Disability etc. of licensee (1) The following people may carry on the motor car

trading business of a person who was a licensed motor car trader for 30 days after the person ceases to be licensed—

(a) if the person dies, the executor named in the person's will or the administrator of the person's estate or any person who intends applying for letters of administration in relation to the person's estate;

(b) if the person becomes an insolvent under administration, the assignee, trustee or receiver of the person;

(c) if the person becomes a represented person within the meaning of the Guardianship and Administration Board Act 1986, the guardian or administrator of the person or any person nominated by the guardian or administrator;

S. 32 amended by No. 74/1996 s. 19, substituted by No. 52/1998 s. 162.

S. 33 amended by Nos 55/1987 s. 57(3)(Sch. 5 item 36), 6/1989 s. 14, substituted by No. 74/1996 s. 20.

s. 32

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(d) if the person becomes an externally-administered body corporate, the liquidator, official manager, receiver, receiver and manager or other external administrator.

(2) If a person authorised to carry on a business applies to the Authority within the 30 day period for permission to carry on the business for a longer period, the person may continue to carry on the business until the Authority makes a decision on the application.

(3) The Authority may grant an application if it is satisfied that it is not contrary to the public interest to do so.

(4) In granting its permission, the Authority may limit it in any way it thinks appropriate and may impose any conditions it thinks appropriate to ensure the ongoing protection of the public interest.

(5) The Authority may at any time withdraw any permission it has granted under this section or limit, or impose, revoke or vary conditions on, any such permission.

(6) A person who has been granted permission under this section must comply with any limitation or condition that applies to the permission.


(7) A person who carries on a motor car trading business under this section is deemed to be the holder of the former licensee's licence for the purposes of this Act.

* * * * *

S. 33(1)(d) amended by No. 101/1998 s. 8(2)(b).

s. 33

S. 33A inserted by No. 74/1996 s. 21, repealed by No. 103/2004 s. 55.

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59

34 Prescribed sign A licensee must cause to be displayed at each place at which business is carried on pursuant to a licence a legible notice in the prescribed form that contains the prescribed particulars and is clearly visible to persons entering the place of business.


__________________

S. 34 amended by No. 74/1996 s. 50(b).

s. 34

Part 3—Conduct of Business


60

PART 3—CONDUCT OF BUSINESS

35 Dealings book (1) A motor car trader must cause a dealings book in

the prescribed form to be kept at the premises at which the business of trading in motor cars is carried on.


(2) A motor car trader—

(a) must make, or cause to be made, in the dealings book entries as to the prescribed matters required under the regulations to be entered in the dealings book at the time of purchase, sale or exchange of a motor car by a motor car trader or at the time of receiving a motor car into the custody or possession of a motor car trader for the purpose of sale or exchange; and

(b) must ensure that entries are signed as prescribed.


(3) A motor car trader must not make a false or misleading entry in a dealings book.


* * * * *

(5) If a used motor car is bought or taken in exchange by a licensed motor car trader acting on behalf of another motor car trader and the licensed motor car trader complies with this section, the motor car trader on whose behalf the purchase or exchange was made is deemed to have complied with this section.

S. 35(1) amended by No. 4/2008 s. 11.

s. 35

S. 35(2) amended by No. 74/1996 s. 50(c).

S. 35(3) amended by No. 74/1996 s. 50(d).

S. 35(4) repealed by No. 91/2005 s. 3(1).



61

(6) For the purposes of this section, a motor car is deemed to be in possession of a motor car trader when it is in any place occupied by the motor car trader or has been removed with the knowledge and permission of the motor car trader to any other place without a sale or exchange in good faith having been made by the motor car trader.

(7) A person must not give false information to a motor car trader in respect of any matter which the motor car trader is required by this Act to keep or enter in any prescribed records.


(8) It is sufficient compliance with subsection (2)(b) if—

(a) a motor car trader keeps a paper document—

(i) that identifies in the prescribed manner the name and address of the person from whom the motor car was acquired and that is signed as prescribed; or

(ii) if a used motor car is acquired by the motor car trader at auction, that identifies in the prescribed manner the name and address of the auctioneer and that is signed as prescribed; and

(b) the dealings book identifies that document in relation to that transaction in the prescribed manner; and

(c) the motor car trader stores that paper document with all the other documents required under this Act to be kept in relation to that transaction.

s. 35

S. 35(8) inserted by No. 74/1996 s. 22, substituted by No. 91/2005 s. 3(2).



62

(9) If a dealings book is kept in an electronically readable form and the motor car trader does not comply with subsection (8) in relation to a transaction, then for the purposes of subsection (2), the motor car trader must ensure that—

(a) the entries relating to a transaction are copied on to paper; and

(b) the paper is then signed as prescribed; and

(c) all such papers are stored together.

35A Prohibited employees (1) A motor car trader must not employ in any

customer service capacity in connection with her, his or its business any person who the motor car trader knows—

(a) has had a claim admitted against the Fund (unless the person has obtained permission under section 29A);

(ab) is or was a partner or director of, or a person concerned in the management of, a partnership or body corporate that has had a claim admitted against the Fund in relation to an act or omission that occurred at the time the person was a partner or director of, or a person concerned in the management of, the partnership or body corporate (unless the person has obtained permission under section 29A);

(b) has, within the last 10 years, been convicted or been found guilty of a serious offence (whether or not a conviction was recorded) (unless the person has obtained permission under section 29B);

(c) is for the time being disqualified from holding a licence;

S. 35(9) inserted by No. 91/2005 s. 3(3).


s. 35A

S. 35A(1)(ab) inserted by No. 4/2008 s. 12(1).

S. 35A(1)(b) amended by No. 8/2003 s. 69.



63

(d) is for the time being disqualified from being employed in any capacity in connection with the business of a motor car trader (regardless of whether or not motor car traders are referred to by that name in the relevant jurisdiction).

* * * * *


(2) A person who is not permitted to be employed in a customer service capacity by a motor car trader by this section must not participate in a customer service capacity in the business of a motor car trader.


(3) A motor car trader must not employ any person in any customer service capacity in connection with the motor car trader's business unless the motor car trader has been given a notice in the prescribed form that contains a declaration of the person stating whether or not he or she—

(a) has had a claim admitted against the Fund;

(b) is or was a partner or director of, or a person concerned in the management of, a partnership or body corporate that has had a claim admitted against the Fund in relation to an act or omission that occurred at the time the person was a partner or director of, or a person concerned in the management of, the partnership or body corporate;

(c) has, within the last 10 years, been convicted or found guilty of a serious offence (whether or not a conviction was recorded);

S. 35A(1)(d) amended by No. 4/2008 s. 12(2).

S. 35A(1)(e) repealed by No. 4/2008 s. 12(3).

s. 35A

S. 35A(3) substituted by No. 4/2008 s. 12(4).



64

(d) is for the time being disqualified from holding a licence;

(e) is for the time being disqualified from being employed in any capacity in connection with the business of a motor car trader (regardless of whether or not motor car traders are referred to by that name in the relevant jurisdiction);

(f) has obtained permission under section 29A or 29B in relation to a matter referred to in paragraphs (a) to (c).


(4) A person is disqualified from being employed in a customer service capacity in connection with a motor car trader's business unless the person gives the motor car trader—

(a) before starting employment, a police check that is not more than 6 months old; or

(b) within 6 weeks after starting employment, a police check that is not more than 6 weeks old.


customer service capacity means any position that requires the holder of the position to deal with members of the public who are buying, selling or exchanging motor cars or who are seeking to buy, sell or exchange motor cars;

police check means a certificate from the Chief Commissioner of Police that indicates that the person is not ineligible to be employed by a motor car trader in a customer service capacity under subsection (1)(b).


s. 35A




65

35B Transitional provision concerning existing employees

(1) Section 35A does not apply to any person who was employed by a motor car trader immediately before section 23 of the Motor Car Traders (Amendment) Act 1996 came into operation.

(2) However, subsection (1) ceases to apply to a person if, as a result of an event occurring after section 23 of the Motor Car Traders (Amendment) Act 1996 came into operation, subsection (1) becomes the only reason the person is still eligible to be employed by a motor car trader.

36 Consignment selling prohibited (1) In this section sell a motor car by consignment

means to sell, exchange or otherwise dispose of a motor car, or any interest in a motor car, as an agent for a person who is not a licensed motor car trader or a special trader.

(2) A motor car trader must not—

(a) sell a motor car by consignment, or offer to sell a motor car by consignment; or

(b) have a motor car in her, his or its possession for the purpose of selling it by consignment.


(3) On finding a motor car trader guilty of an offence against this section, in addition to any other penalty a court may impose, the court may order the motor car trader to pay the person on whose behalf the motor car was sold all of the proceeds of the sale by consignment.

(4) This section does not apply to sales at public auction.


s. 35B




66

37 Dealing with young persons A motor car trader must not knowingly, or knowingly purport to—

(a) sell or give a motor car to a person who is under the age of 18; or

(b) buy, take in exchange or receive possession of, a motor car from a person who is under the age of 18.


38 Odometer tampering (1) A person must not—

(a) tamper with any instrument or device in a motor car for the recording of distance travelled by a motor car; or

(b) install in substitution for an instrument or device in a motor car for recording the distance travelled by the motor car another instrument or device for recording the distance travelled by the motor car.

Penalty: In the case of a natural person—240 penalty units or imprisonment for 2 years or both.

In the case of a body corporate—1000 penalty units.

(2) If it is proved that any instrument or device in a motor car for recording the distance travelled by the motor car has been tampered with or substituted whilst the motor car has been on the premises of a motor car trader or in the possession, custody or control of a motor car trader, the tampering or substitution shall be deemed to have been done by or on behalf of the motor car trader.


s. 37

S. 38(1) amended by No. 74/1996 s. 25(1)(a)(b).

S. 38(2) amended by No. 74/1996 s. 25(1)(a).



67

(3) It is a defence to a prosecution under subsection (1) for the person charged to prove that the tampering or substitution was not done with intent to deceive by or on behalf of the person charged.

(4) A person must not, in the course of selling or exchanging a motor car, falsely represent the accuracy of an odometer reading of the car.

Penalty: In the case of a natural person, 100 penalty units.

In the case of a body corporate, 500 penalty units.

39 Other orders If an offence by a person against section 38 is found proven, the court, in addition to or in lieu of any other order it may make or penalty it may impose on conviction, may, on the application of a person who has suffered, or is likely to suffer, loss or damage by reason of the conduct of the first-mentioned person make such order or orders as the court thinks appropriate against the person if the court considers that the order or orders will compensate the person who made the application, in whole or in part for the loss or damage, or will prevent or reduce the loss or damage suffered, or likely to be suffered by the person.

40 Findings in proceedings to be evidence

In an action for damages or in an application under section 39 or 45 for an order against a person—

(a) a finding of any fact by a court made in proceedings under section 38, is evidence and, in the absence of evidence to the contrary, proof of that fact; and

S. 38(3) amended by No. 74/1996 s. 25(1)(c).

S. 38(4) inserted by No. 74/1996 s. 25(2).

s. 39



68

(b) the finding may be proved by production of a document under the seal of the court from which the finding appears.

41 Agreements for sale of used motor car (1) An agreement for the sale of a used motor car by a

motor car trader whether as principal or acting on behalf of another licensed motor car dealer or special trader (not being an agreement all the parties to which are motor car traders or special traders or an agreement between a financier and the purchaser)—

(a) must contain the prescribed particulars, terms and conditions; and

(b) may contain additional conditions that do not derogate from the prescribed terms and conditions.

(2) If—

(a) a used motor car is sold otherwise than by an agreement that complies with subsection (1); or

(b) the purchaser is not supplied with a copy of the agreement at the time of the sale—

the motor car trader is guilty of an offence.


42 Agreement for sale of new motor car

(1) An agreement for the sale of a new motor car by a motor car trader whether as principal or acting on behalf of another licensed motor car trader or a special trader (not being an agreement all the parties to which are motor car traders or special traders or an agreement between a financier and a purchaser) must contain the prescribed particulars.

s. 41



69

(2) If—

(a) a new motor car is sold otherwise than by an agreement that complies with subsection (1); or

(b) the purchaser is not supplied with a copy of the agreement at the time of the sale—

the motor car trader is guilty of an offence.


42A All registered cars must be sold with a roadworthy certificate

(1) A person must not sell a motor car that is registered under the Road Safety Act 1986 unless—

(a) the person gives the buyer of the car a current certificate of roadworthiness in relation to the car; or

(b) if the person is required under the Road Safety Act 1986 or regulations under that Act to send a current certificate of roadworthiness in relation to the car to the Roads Corporation, the person gives the buyer a copy of that certificate.


(2) This section does not apply if the buyer is a licensed motor car trader or a special trader.

(3) This section does not apply to a motor car that is sold by auction at a public auction by a person acting on behalf of the owner of the car.

(4) In this section current means issued within the last 30 days.


s. 42A

S. 42A(1) substituted by No. 101/1998 s. 9.

S. 42A(3) substituted by No. 84/2001 s. 9(2).



70

(5) Despite anything to the contrary under the Road Safety Act 1986, for the purposes of subsection (1) a reference to "a motor car that is registered under the Road Safety Act 1986"—

(a) includes a reference to a car the registration of which has been suspended under that Act; but

(b) does not include a reference to a car the registration of which has expired and that has not been renewed on or before the day the car is sold.

43 Cooling-off period (1) A purchaser (not being a motor car trader or a

body corporate) under an agreement for the sale of a motor car may, at any time before the expiration of three clear days after the purchaser signs the agreement, terminate the agreement by giving to or serving on the motor car trader or an agent of the motor car trader notice in writing to the effect that the purchaser terminates the agreement.

(1A) For the purposes of subsection (1), a clear day does not include any day that is—

(a) a Saturday or a Sunday; or

(b) a day that is wholly or partly observed as a public holiday throughout Victoria.

(1B) A motor car trader must provide a purchaser (not being a motor car trader or a body corporate) with a copy of the prescribed form before the purchaser enters into an agreement for the sale of a motor car.


s. 43

S. 43(1) amended by Nos 74/1996 s. 27(1), 17/1999 s. 12(1)(a), 4/2008 s. 14(1).





71

(1C) The prescribed form under subsection (1B) must set out—

(a) a statement of the purchaser's rights under this section to terminate the agreement; and

(b) an explanation of the effect of a waiver under this section of the right to terminate the agreement; and

(c) the form of that waiver.

(2) Subsection (1) ceases to apply if the purchaser immediately before accepting delivery signs the waiver in the prescribed form acknowledging that the right to terminate the agreement no longer applies.

(2A) A motor car trader must, subject to and in accordance with the regulations, retain a copy of any prescribed form signed by a purchaser under subsection (2).


(3) A motor car trader must not sell, give in exchange or otherwise dispose of a motor car given or agreed to be given by a purchaser under an agreement for the sale of another motor car in satisfaction of part of the purchase price during the period during which the purchaser may terminate the agreement under this section.


(4) If an agreement for the sale of a motor car has been terminated in accordance with this section—

(a) the vendor under the agreement must pay to the purchaser all money received by the vendor less—


S. 43(2) amended by No. 4/2008 s. 14(3).


s. 43

S. 43(3) amended by Nos 74/1996 s. 50(e), 17/1999 s. 12(1)(b).

S. 43(4) amended by No. 17/1999 s. 12(1)(b).




72

(i) in the case of an agreement for the sale of a used motor car or an off-trade-premises sales agreement of any motor car, the sum of $100 or 1 per cent of the purchase price under the agreement (whichever is the greater); or

(ii) in the case of an agreement for the sale of a new motor car that is not an off-trade-premises sales agreement, the sum of $400 or 2 per cent of the purchase price under the agreement (whichever is the greater); and

(ab) the vendor under the agreement must return to the purchaser any motor car given in satisfaction of any part of the purchase price; and

(b) any collateral credit agreement is discharged to the extent that it was entered into for the purposes of the payment for the motor car supplied or to be supplied under the agreement; and

(c) any security interest in the motor car arising under the collateral credit agreement is extinguished to the extent that it secures the payment of a debt or other pecuniary obligation or performance of any other obligation under the collateral credit agreement; and

(d) a purchaser who has accepted delivery of the motor car before the agreement was terminated—

(i) is liable to the motor car trader for any damage (other than fair wear and tear) occurring to the motor car while it was in the purchaser's possession; and

S. 43(4)(ab) inserted by No. 4/2008 s. 14(5).

s. 43



73

(ii) subject to subsection (5), must return the motor car to the motor car trader.

(5) A purchaser is not liable under subsection (4)(d) to return the motor car to the motor car trader if, before the agreement was terminated, a defect appeared in the motor car for reasons beyond the control of the purchaser making the motor car—

(a) incapable of being driven; or

(b) unroadworthy—

but must permit the motor car trader to collect, or arrange for the collection of, the motor car.

(6) Sections 25 and 26 of the Credit Act 1984 and section 135 of the National Credit Code within the meaning of the National Consumer Credit Protection Act 2009 of the Commonwealth do not apply to the termination of agreements under this section.

(6A) Division 1 of Part 5-5 of the Australian Consumer Law (Victoria) does not apply to the termination of an agreement under this section.

(7) This section does not apply to an agreement for the sale of a commercial vehicle or a motor car purchased at a public auction.

(8) In this section off-trade-premises sales agreement means an agreement for the sale of a motor car that is made or entered into in the presence of the purchaser (or a person acting on behalf of the purchaser) and the motor car trader (or a person acting on behalf of the motor car trader) at—

(a) a private residence other than a private residence which is the business premises of the motor car trader or the person acting on behalf of the motor car trader; or

s. 43

S. 43(6) amended by Nos 41/1995 s. 62(Sch. 1 item 5.1), 11/2010 s. 53.

S. 43(6A) inserted by No. 72/2010 s. 48(Sch. item 16(1)).

S. 43(8) inserted by No. 17/1999 s. 12(2).



74

(b) the workplace of the purchaser—

unless the agreement was entered into at either of those premises at the request of the purchaser.

43A Credit Law excluded matter For the purposes of section 24 of the National Consumer Credit Protection Act 2009 of the Commonwealth, the matter provided for in section 43 is declared to be excluded matter in relation to section 135 of the National Credit Code within the meaning of the National Consumer Credit Protection Act 2009 of the Commonwealth.

44 Offence A motor car trader must not enter into an agreement for the sale of a motor car that includes a provision under which the motor car trader has the right to terminate the agreement without cause.


45 Rescission (1) Subject to subsection (3), a purchaser under an

agreement for the sale of a motor car may apply to the Magistrates' Court not later than 3 months after the agreement is entered into for an order for the rescission of the agreement specifying as a ground that—

(a) a false representation has been made in relation to an odometer reading of the motor car; or

(b) the agreement for sale of the motor car does not contain the prescribed particulars, terms and conditions; or

(c) the motor car is substantially different from the motor car represented in the notice required by section 52(1).


S. 44 amended by No. 74/1996 s. 28.

s. 43A

S. 45(1) amended by No. 57/1989 s. 3(Sch. item 137.1).

S. 45(1)(c) amended by No. 74/1996 s. 29(1)(a).



75

(2) Subject to subsection (3), a purchaser under an agreement for the sale of a motor car at a cash price not exceeding $40 000 may, not later than 3 months after the agreement is entered into, apply to the Tribunal for an order for the rescission of the agreement on any ground referred to in subsection (1).

(3) Despite subsections (1) and (2), if a purchaser under an agreement for the sale of a motor car has notified the motor car trader of a complaint referred to in subsection (1) not later than 3 months after the agreement is entered into, the purchaser may apply not later than 1 month after that notification to the Magistrates' Court or the Tribunal for an order for the rescission of the agreement on the ground of that complaint.

(4) The provisions of this section are in addition to and not in derogation of any right in law which the purchaser may have to rescind an agreement.

(5) If a person applies for an order under this section, the person is not eligible to make a claim under section 76 in respect of any loss that relates to the circumstances giving rise to the application for the order until the application has been heard and determined.

(6) The amendment made by section 29 of the Motor Car Traders (Amendment) Act 1996 increasing the limit in subsection (2) from $20 000 to $40 000 only applies to agreements entered into on or after the date that section came into operation.

* * * * *

S. 45(2) amended by Nos 4/1989 s. 8(4)(b), 74/1996 s. 29(1)(b), 52/1998 s. 163.

S. 45(3) amended by Nos 57/1989 s. 3(Sch. item 137.1), 4/1989 s. 8(4)(c), 52/1998 s. 163.

s. 45

S. 45(5) inserted by No. 74/1996 s. 29(2).

S. 45(6) inserted by No. 74/1996 s. 29(2).

S. 46 repealed by No. 4/1989 s. 8(4)(d).



76

47 Powers of Magistrates' Court and Tribunal

(1) Upon any application to the Magistrates' Court or the Tribunal for an order for rescission, the Court or the Tribunal, after hearing the applicant and affording any other person likely to be affected by any order made under this section an opportunity of being heard—

(a) may order that the sale be rescinded; and

(b) may make such further or consequential orders (including an order as to the payment of the costs of the application) as are necessary or desirable.

(2) The power to make further or consequential orders conferred on the Court or the Tribunal by subsection (1) extends to the making of orders concerning any collateral credit agreement.

(3) In making orders under subsection (1), the Court or the Tribunal must so far as is possible apply the following principles in the following order—

(a) that there should be returned to the purchaser any money or other consideration paid or provided by the purchaser under any agreement for the sale (not being money or other consideration obtained by the purchaser under a collateral credit agreement associated with the sale for the purpose of being so paid or provided);

(b) that, if any person has provided finance under any collateral credit agreement associated with the sale (in this section called a lender)—

S. 47 amended by No. 52/1998 s. 163.

s. 47

S. 47(1) amended by Nos 57/1989 s. 3(Sch. item 137.2), 4/1989 s. 8(4)(e), 52/1998 s. 163.

S. 47(2) amended by No. 4/1989 s. 8(4)(f).

S. 47(3) amended by No. 4/1989 s. 8(4)(g).



77

(i) there should be returned to the lender any money or other consideration paid by the lender by or on behalf of the purchaser; and

(ii) the collateral credit agreement should be discharged to the extent that it was entered into for the purposes of purchase of the motor car;

(c) that, if a motor car trader acted on behalf of the vendor in the making of the sale, the vendor should be indemnified by the motor car trader against any loss suffered by the vendor in consequence of the rescission;

(d) that the lender should be indemnified by the vendor or any motor car trader who acted on behalf of the vendor (as the case requires) against any loss suffered by the lender in consequence of any order made concerning the collateral credit agreement but not exceeding the amount of the interest that has accrued under the collateral credit agreement;

(e) that the motor car should be returned to the vendor or, if there is a collateral credit agreement secured by a mortgage.

(i) if the motor car is in the purchaser's possession, that the motor car should be delivered to the lender; or

(ii) if the lender has possession of the motor cars or obtains possession by an order under this section, that the lender should be entitled to retain possession until the lender has been paid the amount for which the vendor is liable to the lender under paragraph (d).

S. 47(3)(d) amended by No. 41/1995 s. 62(Sch. 1 item 5.2).

s. 47

S. 47(3)(e) amended by No. 41/1995 s. 62(Sch. 1 item 5.3).



78

(4) Upon an order rescinding the sale being made, the rights and obligations of the parties to any agreement relating to the sale or under any agreement relating to a collateral credit agreement associated with the sale shall be as provided for in the order or in any order ancillary to or consequential upon that order but it is not a bar to the making of an order that the parties cannot be fully restored to the positions that existed prior to the sale.

48 Cancellation of security interest by motor car trader

(1) A motor car trader must not sell, exchange or otherwise dispose of a motor car without first procuring the cancellation of—

(a) any security interest in the motor car registered under the Chattel Securities Act 1987; and

(aa) if the motor car is not registered under the Motor Car Act 1958 or the Road Safety Act 1986 but is registered under the law of another State or a Territory, any security interest in the motor car registered under the provisions of a law of that State or Territory corresponding to the provisions of the Chattel Securities Act 1987 (whether or not those provisions are declared under that Act to be a corresponding law for the purposes of that Act); and

(b) any other security interest in the motor car created by the motor car trader or of which the trader has notice.

Penalty: 100 penalty units or imprisonment for 12 months.

S. 48 amended by No. 15/1987 s. 31(4)(a)(i).

s. 48

S. 48(1) amended by No. 74/1996 s. 50(f).

S. 48(1)(a) amended by No. 15/1987 s. 31(4)(a)(iii).

S. 48(1)(aa) inserted by No. 15/1987 s. 31(4)(a)(ii).



79

(2) Subsection (1) does not apply to a motor car trader who sells, exchanges or otherwise disposes of a motor car subject to an inventory security interest if the sale, exchange or disposition is authorised by, and is in accordance with, the terms of the inventory security interest.

49 Notification of Director by credit provider A financier who is a credit provider within the meaning of the Credit Act 1984 or the National Credit Code within the meaning of the National Consumer Credit Protection Act 2009 of the Commonwealth—

(a) whose ordinary business includes the provision of credit to persons who the financier knows or ought reasonably to know require the credit for the purpose of acquiring motor cars from motor car traders; and

(b) who, in the course of carrying on the business, becomes aware of any contravention or proposed contravention of section 48 by a motor car trader—

must notify the Director in writing of the contravention or proposed contravention within 7 days of becoming so aware.


50 Proceeds of sale or disposal to be held on trust

If a motor car trader—

(a) acquires a motor car from a person other than a motor car trader or special trader on the condition or understanding that the trader will procure the cancellation of a security interest affecting the motor car; and

S. 48(2) inserted by No. 15/1987 s. 31(4)(a)(iv).

S. 49 amended by Nos 41/1995 s. 62(Sch. 1 item 5.4), 52/1998 s. 164, 11/2010 s. 55.

s. 49



80

(b) sells or otherwise disposes of the motor car without first procuring the cancellation of that security interest—

the motor car trader shall be deemed to have received the proceeds of sale or disposal (other than any part of the proceeds that exceeds the amount necessary to procure the cancellation of the security interest) on trust for the person from whom the trader acquired the motor car.

50A Offence to aid or abet an unlicensed trader

(1) A person must not—

(a) in the course of carrying on a business, provide any person who is not a licensed motor car trader with motor cars that the person knows are likely to be disposed of in a manner that constitutes trading in motor cars by the unlicensed person; or

(b) in any other way cause or permit or aid or abet any person who is not a licensed motor car trader to carry on business as a motor car trader.


(2) In any proceedings against a licensee for an offence under subsection (1)(b), proof that an unlicensed person—

(a) had possession of the licensee's licence; or

(b) represented herself, himself or itself as the holder of the licensee's licence with the knowledge of the licensee—

is evidence that the licensee permitted the unlicensed person to carry on business as a motor car trader.


S. 50A(1) amended by No. 4/2008 s. 15.

s. 50A



81

(3) It is a defence to a charge against a licensee under subsection (1)(b) if the licensee shows—

(a) that she, he or it took all reasonable steps to prevent an unlicensed person from carrying on business under her, his or its licence; or

(b) that she, he or it did not know, and could not reasonably have been expected to know, that the unlicensed person was representing herself, himself or itself as the holder of the licensee's licence.

(4) The Director, an inspector or a member of the police force may give a written notice to a person stating that, in the opinion of the author of the notice, motor cars are likely to be disposed of in a manner that constitutes trading in motor cars by an unlicensed person if motor cars are provided to the unlicensed person.

(5) A person has the knowledge referred to in subsection (1)(a) if, at any time before providing particular motor cars, she, he or it was given a notice under subsection (4).

(6) If a licensee is convicted of an offence against this section, her, his or its licence is automatically cancelled—

(a) 30 days after the conviction; or

(b) if the licensee appeals against the conviction under section 254 or 272 of the Criminal Procedure Act 2009 within 30 days of the conviction—

(i) on the day after the appeal is abandoned; or

(ii) on the day after the appeal is dismissed or struck out.

s. 50A

S. 50A(6)(b) amended by No. 68/2009 s. 97(Sch. item 88.1).



82

(7) In addition to any other penalty a court may impose on finding a licensee guilty of an offence against this section, the court may order that the licensee be disqualified from holding a licence either permanently, or for a specified period.

50B Right to sue providers of motor cars to unlicensed traders

(1) This section applies if—

(a) a person provides an unlicensed person trading in motor cars with motor cars; and

(b) before providing those cars, the person was given a notice under section 50A(4); and

(c) another person suffers loss arising out of any act or omission by the unlicensed person in relation to those cars.

(2) If the other person—

(a) is refused payment of a claim made under section 76 in respect of the loss; and

(b) is not a motor car trader—

she, he or it has a right of action against the person who provided the unlicensed person with the cars for damages in respect of the loss in so far as it involved those cars.

(3) If the other person is paid any money out of the Fund in respect of the loss, the person who provided the unlicensed person with the cars is jointly and severally liable with the unlicensed person to reimburse the amount of that payment to the Fund.

_______________


s. 50B

Part 3A—Sale of Motor Cars by Auction


83

PART 3A—SALE OF MOTOR CARS BY AUCTION

50C Definitions In this Part—

auction means public auction or trade-only auction;

trade-only auction means an auction that is only open to motor car traders or special traders (or both) or persons acting on their behalf.

50D Dummy bidding prohibited (1) An owner of a motor car must not make a bid at

an auction of the motor car.

Penalty: In the case of a natural person: 60 penalty units;

In the case of a body corporate: 240 penalty units.

(2) A person must not make a bid at an auction of a motor car knowing that the bid is being made on behalf of an owner of the motor car.



Note

Section 50G provides for some permissible vendor bids.

(3) For the purposes of subsection (2), a bid may be found to have been made on behalf of an owner even though it is not made at the request of, or with the knowledge of, the owner.

Pt 3A (Heading and ss 50C–50J) inserted by No. 4/2008 s. 16.


s. 50C




84

(4) Evidence that a person who made a bid at an auction of a motor car had the intention of benefiting an owner in making the bid is evidence that the person made the bid on behalf of the owner.

(5) It is immaterial that the person making a bid in contravention of this section is not in Victoria at the time the bid is made.

50E Offences by auctioneers relating to bidding (1) The auctioneer of a motor car at an auction must

not accept a bid at the auction if he or she knows that the bid was made by, or on behalf of, an owner of the motor car.


(2) The auctioneer of a motor car at an auction must not acknowledge the making of a bid at the auction if no bid was made.


50F Offence to procure dummy bid A person must not procure another person to make a bid at an auction of a motor car that is contrary to section 50D.



50G Permissible vendor bids (1) Despite section 50D(2), the auctioneer of a motor

car at an auction may make a bid on behalf of an owner of the motor car if—

S. 50E inserted by No. 4/2008 s. 16.

s. 50E

S. 50F inserted by No. 4/2008 s. 16.

S. 50G inserted by No. 4/2008 s. 16.



85

(a) before any bidding starts, the auctioneer orally declares at the auction that the auctioneer may make a bid on behalf of the owner; and

(b) in the case of a public auction, immediately before, or in the process of, making the bid, the auctioneer audibly states that the bid is being made on behalf of the owner.

(2) It is sufficient compliance with the requirement under subsection (1)(b) to identify a bid as a bid on behalf of the owner if the auctioneer states "vendor bid" in making the bid.

(3) It is not sufficient compliance with the requirement under subsection (1)(b) to identify a bid as a bid on behalf of the owner if the auctioneer merely identifies the owner by name without stating that the person is an owner of the motor car.

50H Offence to falsely acknowledge bid A person at an auction of a motor car must not falsely claim to have made a bid or falsely acknowledge that he or she made a bid.


50I Contrary conditions are void

Any conditions applying to the sale of any motor car at an auction that are contrary to, or purport to restrict or modify, any requirement imposed by or under this Part are void.

50J Auctioneer to keep records

(1) The auctioneer of a motor car sold at a public auction must obtain, and keep a record of, the name and address of—

S. 50H inserted by No. 4/2008 s. 16.

s. 50H

S. 50I inserted by No. 4/2008 s. 16.

S. 50J inserted by No. 4/2008 s. 16.



86

(a) the owner selling the motor car; and

(b) the purchaser of the motor car.


(2) An auctioneer must make the records kept under subsection (1) available for inspection—

(a) on request by an inspector or the Committee; or

(b) in the case of a specified vehicle, on request by a member of the police force.

__________________

s. 50J

Part 4—Sale of Used Motor Cars


87

PART 4—SALE OF USED MOTOR CARS

51 Definitions In this Part—

cash price in relation to the sale of a motor car, means the price at which the vendor is willing to sell the motor car for cash (excluding duties and transfer fees);

classic and historic motor car means a motor car which was manufactured after 31 December 1930 and before 1 January 1943;

model designation in relation to a motor car of a particular model, means any words or symbols used by the manufacturer of the motor car to identify a motor car of that model;

sell means sell as principal or agent;

veteran motor car means a motor car which was manufactured before 1 January 1917;

vintage motor car means a motor car which was manufactured after 31 December 1916 and before 1 January 1931;

year of first registration in relation to a motor car, means the year in which that motor car was first registered under the provisions of any Act or law, whether of Victoria or of any other place, relating to the registration of motor cars.

s. 51

S. 51 def. of cash price substituted by No. 4/2008 s. 17.



88

52 Particulars to be displayed (1) A motor car trader must not offer or display for

sale, or authorize or permit to be so offered or displayed, a used motor car (not being a commercial vehicle, veteran motor car, vintage motor car or classic and historic motor car) unless there is attached to that motor car a notice in the prescribed form containing the required particulars.


(2) The following are the required particulars—

(a) the name and business address of the current owner of the motor car;

(b) if the last owner of the motor car was a motor car trader or a special trader, the name and business address of that trader or special trader;

(ba) if the last owner of the motor car was neither a motor car trader nor a special trader and the name and address of the last owner are known to the motor car trader, the words "Name and address available upon request";

(c) if the motor car is equipped with an odometer, the distance travelled by the motor car entered by the motor car trader in the dealings book when the trader acquired the motor car or received custody or possession of the motor car for the purpose of sale (as the case may be);

(d) except in the case of a motor car offered or displayed for sale at a public auction, the cash price of the motor car;

(e) the year of first registration of the motor car;

S. 52(1) amended by No. 74/1996 s. 50(b).


S. 52(2)(b) amended by No. 6/1989 s. 15, substituted by No. 4/2008 s. 18(1).

s. 52

S. 52(2)(ba) inserted by No. 4/2008 s. 18(1).



89

(f) the model designation (if any) of the motor car;

(g) such other particulars as are prescribed.

(3) If the Director is satisfied that—

(a) a used motor car has been brought from a place outside Victoria for the purpose of sale; and

(b) any of the required particulars are not available to the motor car trader—

the Director may, by notice in writing, direct that such of the required particulars referred to in that notice need not be contained in the notice required by subsection (1) and the omission by a person of those required particulars does not constitute an offence against the provisions of subsection (1).

(4) A person must not insert, or authorize or permit to be inserted, in any notice under subsection (1) any statement or representation that is false or misleading in a material particular.


(5) If a motor car is offered or displayed for sale by a licensed motor car trader on behalf of another motor car trader and the licensed motor car trader complies with subsection (1), the other motor car trader is deemed to have complied with that subsection.

(6) On the sale of a used motor car to which subsection (1) applies, the motor car trader must ensure that the purchaser signs a copy of the prescribed form referred to in that subsection and, subject to and in accordance with the regulations, must retain the copy.

Penalty applying to this subsection: 10 penalty units.

S. 52(3) amended by No. 52/1998 s. 165.

s. 52

S. 52(6) amended by No. 74/1996 s. 50(b).



90

(7) In this section commercial vehicle does not include a motor car that has a vehicle category code of NA stamped on its compliance plate (regardless of whether that code appears by itself or in combination with one or more numbers).

53 Motor car traders to provide name and address of last owner

A motor car trader must provide the name and address of the last owner of a motor car (if that information is known to the motor car trader) to a prospective purchaser of the motor car on request if the last owner was not a motor car trader or a special trader.


54 Obligations of motor car trader (1) This section applies if a motor car trader sells a

used motor car to a person and the car—

(a) was manufactured not more than 10 years before the date it is sold; and

(b) has been driven for less than 160 000 kilometres.

(2) The warranty set out in subsection (2A) is a part of the sale contract.

(2A) The motor car trader warrants that if a defect appears in the motor car before the end of the warranty period, the motor car trader at her, his or its own expense—

(a) will arrange for the car to be taken to a place where it can be repaired or made good; and

(b) will repair or make good, or cause to be repaired or made good by another motor car trader or by a qualified repairer, the defect so

S. 52(7) inserted by No. 4/2008 s. 18(2).

S. 53 repealed by No. 74/1996 s. 51(a), new s. 53 inserted by No. 4/2008 s. 19.

s. 53






91

as to place the car in a reasonable condition having regard to its age.

(2B) The warranty period is whichever of the following periods is the shorter—

(a) the period from when the car is delivered to the person buying it until it has been driven for a further 5000 kilometres; or

(b) the period of 3 months from the day after the car is delivered to the person buying it.

(2C) A motor car trader who offers or displays for sale a used motor car to which this section will not apply if the car is sold must ensure that there is attached to the car a notice in the form required by the regulations stating that the car is sold without any obligation under this Act to repair or make good any defects that the car may have.

(3) For the purposes of calculating the period referred to in subsection (2B)(b), no regard is paid to any period during which the motor car trader has the motor car in possession for the purpose or purported purpose of ascertaining or carrying out the obligations under this section.

(4) The warranty imposed by this section does not apply to or in relation to any defect—

(a) excluded from the operation of this section by section 55; or

(b) arising from or incidental to any accidental damage to the motor car that occurred after the taking of delivery; or

(c) arising from misuse or negligence on the part of a driver of the motor car that occurred after the taking of delivery; or



S. 54(3) amended by No. 74/1996 s. 31(2)(a).

S. 54(4) amended by No. 74/1996 s. 31(2)(b).

s. 54

S. 54(4)(a) substituted by No. 74/1996 s. 31(2)(c).



92

(d) occurring in the tyres, battery or any prescribed accessory of the motor car; or

* * * * *

(5) This section does not apply to or in relation to—

(a) the sale of any commercial vehicle; or

(b) the sale of a motor car to another motor car trader or to a special trader;

(c) the sale of a motor car to any person who has had the motor car in possession or under control for a continuous period of not less than three months immediately before the sale; or

(d) the sale of a motor cycle within the meaning of the Road Safety Act 1986; or

(e) the sale of a motor car to an employee of the motor car trader or, if the motor car trader is a body corporate, of a related company of the motor car trader.

(6) If a licensed motor car trader acts on behalf of another motor car trader in the selling of a used motor car, this section does not apply to the motor car trader on whose behalf the used motor car is sold.

(7) This section does not apply to a motor car that is sold by auction at a public auction by a person acting on behalf of the owner of the car.

S. 54(4)(e) repealed by No. 74/1996 s. 31(2)(d).

S. 54(5)(b) substituted by No. 74/1996 s. 31(2)(e).

s. 54

S. 54(7) substituted by Nos 74/1996 s. 31(3), 84/2001 s. 9(3).



93

(8) For the purposes of this section, the date of manufacture of a motor car is—

(a) if the car has affixed to it a metal plate, or has stamped on one of its metal components, "Built" or "Built Date" together with a date, that date; or

(b) in any other case, the date stamped on the car's compliance plate.

(9) If a date referred to in subsection (8) only refers to a month in a particular year, the date of manufacture is to be taken to be the first day of the next month.

(10) For the purposes of this section and section 55, a motor car has a defect if one or more of its components—

(a) is no longer in proper working condition having regard to its likely age or the number of kilometres it has travelled; or

(b) is defective to the extent that the car is unroadworthy or is not able to be driven.

(11) This section as amended by section 31 of the Motor Car Traders (Amendment) Act 1996 does not apply to any motor car sold before the day that section came into operation.

55 Excluded defects (1) A motor car trader may affix or attach to any used

motor car offered or displayed for sale a notice in the prescribed form setting out with reasonable particularity any defect that the motor car trader believes to exist in the used motor car together with, in relation to each such defect, the motor car trader's estimate of the fair cost of repairing or making good the defect.

S. 54(8) inserted by No. 74/1996 s. 31(3).

S. 54(9) inserted by No. 74/1996 s. 31(3).

S. 54(10) inserted by No. 74/1996 s. 31(3).

S. 54(11) inserted by No. 74/1996 s. 31(3).

s. 55



94

(2) If—

(a) a notice complying with subsection (1) has, at all material times, been attached to the used motor car; and

(b) at or before the time of sale a copy of the notice has been signed by the purchaser; and

(c) upon the sale a true copy of the notice as so signed has been delivered to the purchaser for retention by that purchaser; and

(d) the estimate by the motor car trader of the fair cost of repairing or making good the defect is reasonable—

the warranty imposed by section 54 does not apply to or in relation to any defect set out in the notice.

56 Special conditions to be void (1) Any special condition which purports to limit or

modify the obligations of a motor car trader under section 54 or 55 is void.

(2) A motor car trader must not enter into an agreement containing a special condition referred to in subsection (1).


_______________

S. 55(2) amended by No. 74/1996 s. 31(4).

s. 56

Part 5—Motor Car Traders Claims Committee and Guarantee Fund


95

PART 5—MOTOR CAR TRADERS CLAIMS COMMITTEE AND GUARANTEE FUND

Division 1—Motor Car Traders Claims Committee

57 Motor Car Traders Claims Committee

(1) There is established a Motor Car Traders Claims Committee which shall consist of not less than three members appointed by the Governor in Council of whom—

(a) one, who is the chairperson, must be an Australian lawyer (within the meaning of the Legal Profession Act 2004) of at least 5 years' standing; and

(b) at least one must be a person with experience in the business of motor car trading; and

(c) at least one must be a person who has knowledge of the interests of natural persons who use the services of motor car traders.

(2) The Chairperson may be referred to as the Chairman or the Chairwoman, as the case requires.

58 Terms and conditions of appointment (1) A member of the Committee holds office for such

period, and on such terms and conditions as are specified in the instrument of appointment and is eligible for re-appointment.

Pt 5 (Heading) substituted by No. 4/2008 s. 20(1).

Pt 5 Div. 1 (Heading) substituted by No. 4/2008 s. 20(2).

S. 57 (Heading) inserted by No. 4/2008 s. 20(3).

S. 57(1) amended by No. 4/2008 s. 20(4).

s. 57

S. 57(1)(a) substituted by No. 18/2005 s. 18(Sch. 1 item 71).



96

(2) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member of the Committee in respect of the office of member.

59 Allowances A member of the Committee, other than a member who is an officer of the public service, must be paid such travelling and other allowances as are fixed for the time being by the Governor in Council.

60 Resignation and termination (1) A member of the Committee may, by notice in

writing signed by the member and delivered to the Governor in Council, resign his or her office.

(2) If a member of the Committee becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors, makes an assignment of his or her remuneration for their benefit or is convicted of an offence punishable by imprisonment for twelve months or more, the Governor in Council must remove the member from office.

(3) The Governor in Council may remove a member of the Committee from office if, in the opinion of the Governor in Council—

(a) the member is unable, by reason of physical or mental illness, to perform the duties of the office; or

S. 58(2) substituted by No. 74/1996 s. 55(2), amended by No. 46/1998 s. 7(Sch. 1), substituted by Nos 108/2004 s. 117(1) (Sch. 3 item 136.1), 80/2006 s. 26(Sch. item 72).

s. 59



97

(b) the member is incompetent; or

(c) the member has misbehaved.

61 Acting Chairperson (1) If—

(a) there is a vacancy in the office of Chairperson; or

(b) the Chairperson is or is about to be absent or for any reason is unable to perform the functions of the office—

the Governor in Council may appoint a person (not being a member of the Committee) to act as the Chairperson until the filling of the vacancy or during the absence or inability.

(2) The Governor in Council—

(a) may, subject to this Act, determine the terms and conditions of appointment of an acting chairperson of the Committee; and

(b) may at any time terminate such an appointment.

(3) The appointment of an acting chairperson of the Committee made in anticipation of the absence or inability of the chairperson has effect from and including the day on which the absence or inability commences.

(4) The appointment of an acting chairperson of the Committee ceases to have effect if the acting chairperson resigns the appointment by writing signed by the acting chairperson and delivered to the Governor.

(5) While the appointment of an acting chairperson of the Committee remains in force, the acting chairperson has and may exercise all the powers and perform all the functions of the Chairperson.

s. 61



98

62 Secretary to the Committee A Secretary to the Committee and any employees that are necessary for the purposes of this Part are to be employed under Part 3 of the Public Administration Act 2004.

63 Determination not invalid by reason of vacancy, etc. Subject to section 66, an act or determination of the Committee is not invalid by reason only of a vacancy in the office of Chairperson or of any other member or a defect or irregularity in or in connection with the appointment of a member or, in the case of a person appointed to act as chairperson on the ground that the occasion for so acting had not arisen or had ceased.

* * * * *

66 Constitution of Committee For the purposes of determining a claim, the Committee must be constituted by—

(a) the Chairperson; and

(b) at least one member selected by the Chairperson who is a person referred to in section 57(1)(b); and

(c) at least one member who is a person referred to in section 57(1)(c); and

(d) such other members of the Committee (if any) as the Chairperson determines.

S. 62 amended by No. 74/1996 s. 55(1)(b), substituted by No. 46/1998 s. 7(Sch. 1), amended by No. 108/2004 s. 117(1) (Sch. 3 item 136.2).

s. 62

Ss 64, 65 repealed by No. 52/1998 s. 166.



99

67 Determination of questions before the Committee A question before the Committee must be decided according to the opinion of a majority of the members convened as the Committee at the time the question is decided.

68 Committee may require information from parties to a claim

(1) For the purpose of obtaining information relevant to the determination of a claim, the Committee may—

(a) require a claimant or any other party to a claim to provide any further information that the Committee thinks fit in the manner required by the Committee; or

(b) seek advice and information on the claim from any other person or body or source as it thinks fit.

(2) The Committee may refuse a claim in whole or in part if the claimant does not provide the further information required within a reasonable time of the requirement being made.

(3) The Committee may admit a claim in whole or in part if a motor car trader who is party to the claim does not provide the further information required within a reasonable time of the requirement being made.

69 Director, police and public authorities to produce information to Committee

(1) The Committee may request a specified public body to provide a report to the Committee in respect of any matter relevant to the determination of a claim.

S. 68 repealed by No. 52/1998 s. 166, new s. 68 inserted by No. 4/2008 s. 21.

s. 67




100

(2) If the Committee obtains information in respect of a claim, the Committee may disclose that information to—

(a) the claimant; or

(b) the motor car trader; or

(c) any other person (including a specified public body)—

if the Committee considers it reasonable to disclose the information to that person for the purpose of obtaining information to determine the claim.

(3) In this section specified public body means—

(a) the Director; or

(b) the Authority; or

(c) the Roads Corporation; or

(d) the Chief Commissioner of Police.

70 Procedure of Committee (1) The Committee in carrying out its functions may

inform itself in any manner it thinks fit.

(2) Subject to this Act and the regulations, the procedure of the Committee is in its discretion.

(3) The Committee may at any time correct a clerical mistake in any of its decisions or an error arising in a decision from an accidental slip or omission.

71 Reasons for determination (1) Any person whose interests are affected by a

determination of the Committee may request a copy in writing of the reasons for the determination—

(a) before or within 14 days after the Committee makes the determination; and

S. 70 amended by No. 6/1989 s. 16(1)(2), substituted by No. 52/1998 s. 167.

s. 70

S. 71(1) substituted by Nos 6/1989 s. 17, 4/2008 s. 22(1).



101

(b) on payment to the Secretary of the prescribed fee (if any).

(2) The Committee must comply with a request made under subsection (1).

(3) The Committee may give a copy of a determination of the Committee to any person on request.

* * * * *

72 Secretary may take legal proceedings on behalf of Committee

(1) Legal proceedings may be taken by or against the Secretary acting on behalf of the Committee in the name of "Secretary to the Motor Car Traders Claims Committee".

(2) A person who takes legal proceedings in the name of the Secretary to the Motor Car Traders Claims Committee is taken to be authorised to take those proceedings, in the absence of evidence to the contrary.

(3) The Secretary, on behalf of the Committee, may apply to a court or the Tribunal to set aside an order of the court or the Tribunal (as the case requires) against a motor car trader if—

(a) the Committee has information that is relevant to the matters that are the subject of the order, and that information has not been presented to the court or the Tribunal; and

(b) the motor car trader is unable or unwilling to take any further legal action in respect of the order.

S. 71(3) inserted by No. 4/2008 s. 22(2).

Ss 71A, 71B inserted by No. 6/1989 s. 18, repealed by No. 52/1998 s. 166.


s. 72



102

73 Protection for things done under this Part An action does not lie against a member of the Committee or the Secretary on account of any publication made or anything done under the authority of this Part or taken, made or done bona fide purportedly under the authority of this Part or on account of any omission made bona fide in the administration of this Part.

Division 2—The Fund

74 Motor Car Traders' Guarantee Fund (1) There shall be kept in the Trust Fund under the

Financial Management Act 1994, a trust account to be called the "Motor Car Traders' Guarantee Fund.

(2) There shall be paid into the Fund—

(a) all money standing to the credit of the Motor Car Traders' Guarantee Fund established under the Motor Car Traders Act 1973 immediately before the commencement of this section; and

(b) all money received by way of fees or penalties under this Act; and

(c) any money recovered by the Secretary to the Committee in the exercise of any rights, or the pursuit of remedies, to which the Secretary is subrogated by virtue of this Act.

(3) There shall be paid out of the Fund—

(a) an amount in respect of any loss described in section 76 which is admitted by the Committee to have been incurred by any claimant by reason of any failure referred to

S. 73 amended by No. 52/1998 s. 168.

s. 74


S. 74(3) amended by No. 6/1989 s. 19(a)(b).

S. 74(3)(a) inserted by No. 6/1989 s. 19(a).



103

in that section of a motor car trader who, at the relevant time, was (or who the claimant reasonably believed was) a licensed motor car trader under this Act or the Motor Car Traders Act 1973; and

(b) any refund of fees paid under this Act.

(4) There shall be paid out of the Fund the costs of administration of this Act.

75 Duties and powers of Treasurer The Treasurer—

(a) may from time to time invest money standing to the credit of the Fund in such manner as the Treasurer thinks fit; and

(b) must pay into the Fund any interest received on money so invested.

Division 3—Claims

76 Determination of claims (1) Any person (other than a person specified in

subsection (6)) may make a claim against the Fund by applying to the Secretary to the Committee in a form approved by the Committee and specifying as a ground that—

(a) loss has been incurred from a failure of the motor car trader to comply with section 36, 38, 43(3), 54(2A), 54(2C) or 56(2) of this Act or the Motor Car Traders Act 1973; or

(b) loss has been incurred from a failure of the motor car trader to transfer a good title to a motor car, including, without limitation—

S. 74(3)(b) inserted by No. 6/1989 s. 19(b).


s. 75

S. 76(1) amended by Nos 8/2003 s. 70(1), 4/2008 s. 24(1).

S. 76(1)(a) amended by Nos 52/1998 s. 170(1), 4/2008 s. 24(2)(3).

S. 76(1)(b) amended by No. 4/2008 s. 24(4).



104

(i) the motor car continuing to be subject to a registered security interest which was registered before the motor car trader sold the motor car; or

(ii) the motor car being a stolen motor car or having been seized by a member of the police force as a suspected stolen motor car; or

(c) loss has been incurred from a failure of a motor car trader to comply with an agreement to pay the purchase price to a person who sold a motor car to the motor car trader or to remit the whole or any part of the purchase price to another person; or

(d) loss has been incurred from a failure of a motor car trader to pay transfer fees or registration fees to the Roads Corporation or stamp duty on a motor car or to provide any certificate of roadworthiness or other document necessary to enable a motor car to be registered under the Road Safety Act 1986 subject to payment of the appropriate fee; or

(e) loss has been incurred from a failure of a motor car trader to remit money paid to the motor car trader as a premium or purchase price for an insurance policy or warranty to the person who was to provide the insurance or warranty; or

(f) loss has been incurred from a failure of a motor car trader to satisfy—

(i) a court order; or

(ii) an order of the Tribunal; or

S. 76(1)(b)(i) inserted by No. 4/2008 s. 24(4).

S. 76(1)(b)(ii) inserted by No. 4/2008 s. 24(4).

S. 76(1)(d) amended by Nos 44/1989 s. 41(Sch. 2 item 28), 74/1996 s. 32(1), 4/2008 s. 24(5).

S. 76(1)(e) inserted by No. 74/1996 s. 32(1).

S. 76(1)(f) inserted by No. 74/1996 s. 32(1), amended by No. 4/2008 s. 24(6).

s. 76

S. 76(1)(f)(ii) amended by No. 52/1998 s. 170(2)(a).



105

(iii) an order made by the Tribunal under section 31(1)(g)—

arising from the motor car trader's trading in motor cars; or

(g) loss has been incurred from a failure of a motor car trader to comply with an agreement to refund the whole or part of a deposit or any other amount following termination of a contract for sale of a motor car; or

(h) loss has been incurred from a failure of a motor car trader to deliver a motor car after payment of the purchase price for the motor car.

(1A) The person making the claim must certify in the claim that the particulars contained in the claim are true and correct and that the person is aware that making a false or misleading statement is an offence under section 84A with a maximum penalty of 50 penalty units in the case of a natural person or, in the case of a body corporate, 100 penalty units.

(1B) The Committee may specify how any information supplied to it under this Part is to be verified and, without limiting the scope of this power, may require that the information be supplied in the form of, or be verified by, a statutory declaration.

(2) The Committee may allow a claim made by a special trader who is a financier for loss incurred from the failure of a licensed motor car trader to procure the cancellation of a security interest in a motor car registered under the Chattel Securities Act 1987 or any corresponding previous enactment before the motor car trader acquired or took possession of the motor car.

S. 76(1)(f)(iii) amended by No. 52/1998 s. 170(2)(b).

S. 76(1)(g) inserted by No. 4/2008 s. 24(7).

S. 76(1)(h) inserted by No. 4/2008 s. 24(7).


s. 76


S. 76(2) substituted by No. 15/1987 s. 31(4)(b), amended by No. 4/2008 s. 24(8).



106

* * * * *

(4) If—

(a) a special trader who is a financier has registered a security interest in a motor car under the Chattel Securities Act 1987; and

(b) a person sells the car to a licensed motor car trader; and

(c) the sale agreement requires the motor car trader to remit some or all of the purchase price to the special trader; and

(d) the motor car trader fails to remit the agreed amount to the special trader—

* * * * *

the Committee must ensure that the total amount that it authorises to be paid in relation to any claims made in relation to the failure described in paragraph (d) does not exceed the lesser of either the agreed amount to the special trader or the amount prescribed for the purposes of section 77(4).

S. 76(3) inserted by No. 74/1996 s. 32(2), repealed by No. 4/2008 s. 24(9).

S. 76(4) inserted by No. 74/1996 s. 32(2), amended by No. 4/2008 s. 24(10)(d)-(f).

S. 76(4)(a) amended by No. 4/2008 s. 24(10)(a).

s. 76

S. 76(4)(d) amended by No. 4/2008 s. 24(10)(b).

S. 76(4)(e) repealed by No. 4/2008 s. 24(10)(c).



107

(4A) The following persons are not entitled to make a claim against the Fund—

(a) a motor car trader;

(b) a special trader (except as provided in subsection (2));

(c) a person who would be a motor car trader if the transactions engaged in by that person were not exempt transactions for the purposes of the definition of trading in motor cars;

(d) a public statutory authority;

(e) a person who acts as an intermediary within the meaning of section 9 of the National Consumer Credit Protection Act 2009 of the Commonwealth.

(4B) In this section a reference to a person who sold a car to a motor car trader includes a reference to a person—

(a) who purported to sell the car to a motor car trader; and

(b) who has transferred possession of the motor car to that motor car trader; and

(c) who, immediately before that purported sale, was a person to whom the motor car was deemed under section 4 to have been leased or sold.".

(4C) A reference in subsection (2) or (4) to a security interest does not include—

(a) an inventory security interest; or

(b) a security interest under an agreement entered into between the financier and a person who the financier knows is a partner or director of, or a person concerned in the


S. 76(4A)(e) substituted by No. 11/2010 s. 56.


s. 76




108

management of, a partnership or body corporate that is a licensed motor car trader.

(5) Subsections (1)(e) and (f) do not apply to any losses incurred before the date section 32 of the Motor Car Traders (Amendment) Act 1996 came into operation.

(6) In this section loss means actual pecuniary loss but does not include future loss or consequential loss.

(7) The Committee may require an applicant to seek to recover a loss by other means of legal redress before allowing a claim.

77 Admittance or refusal of claim (1) The Committee may admit or refuse a claim in

whole or in part.

(2) The Committee may refuse a claim if it considers that there has been an unreasonable delay in making the claim.

(3) The Committee may refuse a claim by a financier under section 76 in relation to a motor car trader if the financier has not given the required notice to the Director under section 49 in respect of that motor car trader.

(3A) When determining a claim or the amount of a claim, the Committee may take into account any matters that it considers relevant, including—

(a) the conduct of the claimant and any other parties to the claim;

(b) any delay by the claimant in making the claim and whether the delay was reasonable;

S. 76(5) inserted by No. 74/1996 s. 32(2).

S. 76(6) inserted by No. 17/2007 s. 35.

S. 76(7) inserted by No. 17/2007 s. 35.

s. 77

S. 77(2) repealed by No. 74/1996 s. 33(1), new s. 77(2) inserted by No. 4/2008 s. 25(1).

S. 77(3) repealed by No. 74/1996 s. 33(1), new s. 77(3) inserted by No. 4/2008 s. 25(1).




109

(c) whether and to what extent the claimant contributed to the loss that is the subject of the claim;

(d) any other matter the Committee considers relevant.

(4) If the Committee admits a claim in whole or in part—

(a) the Committee must issue a certificate authorising payment of the claim or the prescribed amount, whichever is the lesser; and

(b) must pay the claimant the amount specified in the certificate, subject to subsection (4B).

(4A) The Committee is not required to conduct an oral hearing to determine whether to admit or refuse a claim.

(4B) The Committee may defer payment of a claim until the later of—

(a) the end of the period within which an application for review may be brought under section 79; or

(b) if an application for review is brought within that time, 14 days after the withdrawal or final determination of the application for review.

(5) A certificate issued by the Committee is evidence of the matters stated in the certificate.

(6) A certificate issued by the Secretary to the Committee which attests to the payment of a claim admitted against the Fund in respect of a motor car trader is evidence and, in the absence of evidence to the contrary, proof of a debt owed by that motor car trader to the Committee.

S. 77(4)(b) amended by No. 4/2008 s. 25(2).



s. 77

S. 77(5) inserted by No. 74/1996 s. 33(2).

S. 77(6) inserted by No. 4/2008 s. 25(4).



110

77A Committee may postpone its determination The Committee may postpone making a determination on a claim for such period as it considers reasonable and necessary if—

(a) prior to a determination being made on the claim, any or all of the matters that are the subject of the claim are the subject of pending legal proceedings; or

(b) there is a reasonable expectation that the claim will be resolved between the parties; or

(c) the motor car is the subject of a police investigation; or

(d) the Committee considers it appropriate in the circumstances.

78 No further claim in respect of same matter (1) If a claim is admitted, the claimant is not entitled

to make a further claim against the Fund in respect of the same matter.

(2) If a claim is refused, the claimant is not entitled to make a further claim against the Fund in respect of the same matter unless the Committee is satisfied that exceptional circumstances warrant the making of the further claim.

(3) The exceptional circumstances that the Committee may consider under subsection (2) include, without limitation, the identification of information that was not available when the original claim was made.

79 Application for review

(1) A person whose interests are affected by a decision of the Committee may apply to the Tribunal for a review of that decision.


S. 78 amended by No. 4/2008 s. 27 (ILA s. 39B(1)).

S. 78(2) inserted by No. 4/2008 s. 27.

S. 78(3) inserted by No. 4/2008 s. 27.


s. 77A



111

(2) An application for review must be made within 28 days after the later of—

(a) the day on which the decision is made; or

(b) if, under the Victorian Civil and Administrative Tribunal Act 1998, the person requests a statement of reasons for the decision, the day on which the statement of reasons is given to the person or the person is informed under section 46(5) of that Act that a statement of reasons will not be given.

80 Subrogation where claims allowed (1) Upon payment of any money for any claim made,

the Secretary to the Committee 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 incurring any liability to the claimant in relation to the subject-matter of the claim or the legal representatives or other persons having authority to administer any estate concerned.

(2) If a right conferred by subsection (1) applies in respect of a body corporate, it is enforceable jointly and severally against the body corporate and the people who were its directors at the time the act or omission that gave rise to the claim occurred.

(3) Subsection (2) does not apply to a director if it is proved that the act or omission occurred without the knowledge or consent of the director.

(4) A reference in subsection (1) to the rights of the claimant includes any right the claimant may have under section 86 of the Sentencing Act 1991.

S. 80(1) amended by No. 74/1996 s. 34(a).

s. 80

S. 80(2) inserted by No. 74/1996 s. 34(b).





112

81 Deferred payment If the amount standing to the credit of the Fund is insufficient to pay the whole amount of all claims allowed in any financial year, any such claim so far as it remains unpaid must be charged against future receipts of the Fund and must be paid out of the Fund when there is sufficient money in it.

_______________

s. 81

Part 5A—Enforcement Provisions


113

PART 5A—ENFORCEMENT PROVISIONS

Division 1—General

82 Production of identity card An inspector must produce his or her identity card for inspection—

(a) before exercising a power under this Division other than a requirement made by post; and

(b) at any time during the exercise of a power under this Division, if asked to do so.


82A Documents available for inspection

(1) A licensed motor car trader must at all reasonable times at each office at which that trader carries on business as a motor car trader keep all documents relating to the business carried on at that office for the previous 3 years available for inspection by an inspector in a form in which they can be readily and expeditiously inspected by an inspector.


Pt 6 (Heading) substituted as Pt 5A (Heading) by No. 74/1996 s. 35(1).

Pt 5A Div. 1 (Heading) inserted by No. 74/1996 s. 35(1).

S. 82 amended by No. 74/1996 ss 36(1)(a)(b) (2), 50(g), substituted by No. 17/1999 s. 13.

s. 82

S. 82A inserted by No. 74/1996 s. 37, substituted by No. 17/1999 s. 13.

S. 82A(1) amended by No. 4/2008 s. 28.



114

(2) If the licence of a licensed motor car trader has been surrendered or cancelled in the last 3 years, the former licensee must make all documents relating to the former business available for inspection by an inspector in a form and at a place where they can be readily and expeditiously inspected by an inspector.


(3) Despite subsection (1), if a licensed motor car trader carries on business as a motor car trader at more than one premises and keeps a dealings book in an electronically readable form under section 35, the motor car trader may keep the dealings book on a single electronic database if—

(a) the record of each transaction in the dealings book clearly indicates the premises that the transaction relates to; and

(b) the record of each transaction relating to particular premises in the dealings book is readily accessible from those premises; and

(c) all paper documents relating to a transaction are kept together at the premises to which the transaction relates.

82AA Specified persons to produce documents and answer questions

(1) For the purpose of monitoring compliance with this Act or the regulations, an inspector may require a licensed motor car trader or a specified person at a time and place specified by the inspector—

(a) to answer orally or in writing any questions put by the inspector relating to the licensed motor car trader's business as a motor car trader;

S. 82A(3) inserted by No. 91/2005 s. 4.

S. 82AA inserted by No. 17/1999 s. 13.

s. 82AA



115

(b) to supply orally or in writing information required by the inspector relating to that business;

(c) to produce to the inspector specified documents or documents of a specified class relating to that business.

(1A) Without limiting subsection (1), if a document required to be produced under subsection (1)(c) is, or is part of, a dealings book kept under section 35 in an electronically readable form, the inspector may require the document to be provided in a readily accessible form—

(a) electronically; or

(b) in a paper form produced by a computer.

(1B) If a person produces a document referred to in subsection (1A), the person must also provide the inspector with a prescribed statement verifying that the document provided is a true record of the dealings book at the date of the statement.


specified person, in relation to the business of a licensed motor car trader, means—

(a) a person whose licence has been surrendered or cancelled within the last 3 years; or

(b) a person who is a director or officer of a corporation which is a licensed motor car trader; or

(c) if the licence of a corporation has been surrendered or cancelled within the last 3 years, a person who was a director or officer of the corporation at the time the licence was surrendered or cancelled; or

S. 82AA(1A) inserted by No. 91/2005 s. 5.

S. 82AA(1B) inserted by No. 91/2005 s. 5.

s. 82AA



116

(d) a person who under section 33 is carrying on the business of a licensed motor car trader.

82AB Third parties to produce documents and answer questions relating to trader's business

For the purpose of monitoring compliance with this Act or the regulations, an inspector may require any person who has possession, custody or control of documents relating to a licensed motor car trader's business as a motor car trader—

(a) to answer orally or in writing any questions put by the inspector relating to the motor car trader's business as a motor car trader;

(b) to supply orally or in writing information required by the inspector relating to that business;

(c) to produce to the inspector specified documents or documents of a specified class relating to that business.

82AC Ministers, police, and public authorities to produce information to inspectors

(1) For the purpose of monitoring compliance with this Act or the regulations, the Director or an inspector may request a specified public body within a time specified by the Director or inspector—

(a) to answer orally or in writing any questions put by the inspector relating to a licensed motor car trader's business as a motor car trader;

(b) to supply orally or in writing information required by the inspector relating to that business.

S. 82AB inserted by No. 17/1999 s. 13.

s. 82AB

S. 82AC inserted by No. 17/1999 s. 13.



117

(2) An inspector can only make a request under subsection (1) with the written consent of the Director.

(3) A specified public body must comply with a request under subsection (1).

(4) In this section specified public body means—

(a) a Minister; or

(b) a public statutory authority; or

(c) a municipal council; or

(d) the Chief Commissioner of Police.

82AD Certain other specified persons or bodies to produce information

(1) For the purpose of monitoring compliance with this Act or the regulations, the Director or an inspector may require a specified person or body within a time specified by the Director or inspector—

(a) to answer orally or in writing any questions put by the inspector relating to a licensed motor car trader's business as a motor car trader;

(b) to supply orally or in writing information required by the inspector relating to that business.

(2) An inspector can only make a requirement under subsection (1) with the written consent of the Director.

(3) In this section specified person or body means—

(a) a person who is a publisher of a publication; or

(b) a person who is the owner or operator of a broadcasting service; or

S. 82AD inserted by No. 17/1999 s. 13.

s. 82AD



118

(c) a person who is the owner or operator of a telecommunications service; or

(d) a person who is the owner or operator of a postal service; or

(e) a financial institution.

82AE Powers on production of documents (1) If any documents are produced to an inspector

under section 82AA or 82AB, the inspector may—

(a) inspect the documents or authorise a person to inspect the documents;

(b) make copies of or take extracts from the documents;

(c) seize the documents if the inspector considers the documents necessary for the purpose of obtaining evidence for the purpose of any proceedings under this Act or the regulations;

(d) seize the documents if the inspector—

(i) considers the documents necessary for the purpose of obtaining evidence for the purpose of any proceedings under any Consumer Act; and

(ii) believes on reasonable grounds, that it is necessary to seize the documents in order to prevent their concealment, loss or destruction or their use in the contravention of any Consumer Act;

(e) secure any seized documents against interference;

(f) retain possession of the documents in accordance with this Division.

S. 82AE inserted by No. 17/1999 s. 13.

s. 82AE

S. 82AE(1) (d)(i) amended by No. 35/2000 s. 47(c).

S. 82AE(1) (d)(ii) amended by No. 35/2000 s. 47(c).



119

(2) An inspector must not require a person to produce a document at a place other than the person's place of business or an office of the Director without the consent of the person.

82AF Order requiring supply of information and answers to questions

(1) For the purpose of monitoring compliance with this Act, an inspector, with the written approval of the Director, may apply to the Magistrates' Court for an order requiring any person at a time and place specified by an inspector—

(a) to answer orally or in writing any questions put by an inspector relating to a licensed motor car trader's business; or

(b) to supply orally or in writing information required by an inspector in relation to a licensed motor car trader's business.

(2) If the Magistrates' Court is satisfied on the basis of evidence presented by the Director that the order is necessary for the purpose of monitoring compliance with this Act or the regulations, the Court may grant the order sought.

(3) An order under this section must state a day, not later than 28 days after the making of the order, on which the order ceases to have effect.

(4) An inspector who executes an order under this section must, as soon as practicable after that execution, notify the Magistrates' Court in writing of the time and place of execution of the order.

82AG Entry or search with consent (1) For the purpose of monitoring compliance with

this Act or the regulations, an inspector, with the consent of the occupier of the premises, may—

(a) enter and search any premises;

S. 82AE(2) amended by No. 35/2000 s. 47(d).

S. 82AF inserted by No. 17/1999 s. 13.

s. 82AF

S. 82AG inserted by No. 17/1999 s. 13.



120

(b) seize anything found on the premises which the inspector believes on reasonable grounds to be connected with a contravention of this Act or the regulations;

(c) examine and take and keep samples of any goods found on the premises which the inspector believes on reasonable grounds to be connected with a contravention of this Act or the regulations;

(d) inspect and make copies of, or take extracts from, any document found on the premises.

(2) An inspector must not enter and search any premises with the consent of the occupier unless, before the occupier consents to that entry, the inspector has—

(a) produced his or her identity card for inspection; and

(b) informed the occupier—

(i) of the purpose of the search; and

(ii) that the occupier may refuse to give consent to the entry and search or to the seizure of anything found during the search; and

(iii) that the occupier may refuse to consent to the taking of any sample of goods or any copy or extract from a document found on the premises during the search; and

(iv) that anything seized or taken during the search with the consent of the occupier may be used in evidence in proceedings.

s. 82AG



121

(3) If an occupier consents to an entry and search, the inspector who requested consent must before entering the premises ask the occupier to sign an acknowledgment stating—

(a) that the occupier has been informed of the purpose of the search and that anything seized or taken in the search with the consent of the occupier may be used in evidence in proceedings; and

(b) that the occupier has been informed that he or she may refuse to give consent to the entry and search or to the seizure of anything or to the taking of any sample, copy or extract; and

(c) that the occupier has consented to such an entry and search; and

(d) the date and time that the occupier consented.

(4) If an occupier consents to the seizure or taking of any thing during a search under this section, the inspector must before seizing or taking the thing ask the occupier to sign an acknowledgment stating—

(a) that the occupier has consented to the seizure or taking of the thing; and

(b) the date and time that the occupier consented.

(5) An occupier who signs an acknowledgment must be given a copy of the signed acknowledgment before the inspector leaves the premises.

(6) If, in any proceeding, an acknowledgment is not produced to the court or a tribunal, it must be presumed, until the contrary is proved, that the occupier did not consent to the entry and search or to the seizure or taking of the thing.

S. 82AG(3) amended by No. 106/2003 s. 27(1).

S. 82AG(3)(b) amended by No. 106/2003 s. 27(2).

s. 82AG



122

82AH Entry without consent or warrant (1) For the purpose of monitoring compliance with

this Act or the regulations or an order made by a court or tribunal under this Act or the regulations, an inspector may, subject to subsection (2)—

(a) enter and search any premises at which the inspector believes, on reasonable grounds—

(i) a person is conducting a business or supplying goods or services; or

(ii) a person is keeping a record or document that is required to be kept by this Act or the regulations or that may show whether or not this Act or the regulations are being complied with;

(b) examine anything found on the premises;

(c) take and keep samples of anything found on the premises if the inspector believes, on reasonable grounds, that it is connected with a contravention of this Act or the regulations;

(d) seize anything found on the premises or secure anything found on the premises against interference, if the inspector believes, on reasonable grounds, that it is connected with a contravention of this Act or the regulations;

(e) examine and test any equipment found on the premises that is of a kind used in connection with the supply of goods or services;

(f) in the case of any document on the premises, do all or any of the following—

(i) require the document to be produced for examination;

S. 82AH inserted by No. 17/1999 s. 13, substituted by No. 79/2006 s. 81.

s. 82AH



123

(ii) examine, make copies or take extracts from the document, or arrange for the making of copies or the taking of extracts to be done on the premises or elsewhere;

(iii) remove the document for so long as is reasonably necessary to make copies or take extracts from the document;

(g) make any still or moving image or audio-visual recording;

(h) bring any equipment onto the premises that the inspector believes, on reasonable grounds, is necessary for the examination or processing of things (including documents) found at the premises in order to determine whether they are things that may be seized under this section.

(2) An inspector—

(a) must not exercise a power under subsection (1) in any part of the premises that is used for residential purposes; and

(b) must not exercise a power under subsection (1), except between the hours of 9 a.m. to 5 p.m., or when the premises are open for business.

(3) If an inspector exercises a power of entry under this section without the owner or occupier being present the inspector must, on leaving the premises, leave a notice setting out—

(a) the time of entry; and

(b) the purpose of entry; and

(c) a description of things done while on the premises; and

s. 82AH



124

(d) the time of departure; and

(e) the procedure for contacting the Director for further details of the entry.

82AI Search warrants (1) An inspector, with the written approval of the

Director, may apply to a magistrate for the issue of a search warrant in relation to particular premises for the purpose of monitoring compliance with this Act or the regulations.

(2) If a magistrate is satisfied by the evidence, on oath or by affidavit, of the inspector that the warrant is necessary for the purpose of monitoring compliance with this Act or the regulations, the magistrate may issue a search warrant, in accordance with the Magistrates' Court Act 1989, authorising an inspector named in the warrant, together with any other person or persons named or otherwise identified in the warrant and with any necessary equipment—

(a) to enter the premises specified in the warrant, if necessary by force; and

(b) to do all or any of the following—

(i) search for;

(ii) seize;

(iii) secure against interference;

(iv) examine and inspect;

(v) make copies of or take extracts from—

a thing or things of a particular kind named or described in the warrant and which the inspector believes, on reasonable grounds, to be connected with a contravention of this Act or the regulations.

S. 82AI inserted by No. 17/1999 s. 13.

s. 82AI



125

(3) A search warrant issued under this section must state—

(a) the purpose for which the search is required; and

(b) any conditions to which the warrant is subject; and

(c) whether entry is authorised to be made at any time of the day or night or during stated hours of the day or night; and

(d) a day, not later than 28 days after the issue of the warrant, on which the warrant ceases to have effect.

(4) Except as provided by this Act, the rules to be observed with respect to search warrants under the Magistrates' Court Act 1989 extend and apply to warrants under this section.

82AJ Announcement before entry (1) On executing a search warrant, the inspector

executing the warrant—

(a) must announce that he or she is authorised by the warrant to enter the premises; and

(b) if the inspector has been unable to obtain unforced entry, must give any person at the premises an opportunity to allow entry to the premises.

(2) An inspector need not comply with subsection (1) if he or she believes on reasonable grounds that immediate entry to the premises is required to ensure—

(a) the safety of any person; or

(b) that the effective execution of the search warrant is not frustrated.

S. 82AJ inserted by No. 17/1999 s. 13.

s. 82AJ



126

82AK Details of warrant to be given to occupier (1) If the occupier is present at premises where a

search warrant is being executed, the inspector must—

(a) identify himself or herself to the occupier; and

(b) give to the occupier a copy of the warrant.

(2) If the occupier is not present at premises where a search warrant is being executed, the inspector must—

(a) identify himself or herself to a person (if any) at the premises; and

(b) give to the person a copy of the warrant.

82AL Seizure of things not mentioned in the warrant A search warrant under section 82AI authorises an inspector executing the search warrant, in addition to the seizure of any thing of the kind described in the warrant, to seize or take a sample of any thing which is not of the kind described in the warrant if—

(a) the inspector believes, on reasonable grounds, that the thing—

(i) is of a kind which could have been included in a search warrant issued under this Division; or

(ii) will afford evidence about the contravention of any Consumer Act; and

(b) in the case of seizure, the inspector believes, on reasonable grounds, that it is necessary to seize that thing in order to prevent its concealment, loss or destruction or its use in the contravention of this Act or any other Consumer Act.

S. 82AK inserted by No. 17/1999 s. 13.

s. 82AK

S. 82AL inserted by No. 17/1999 s. 13.

S. 82AL(a)(ii) amended by No. 35/2000 s. 47(c).

S. 82AL(b) amended by No. 35/2000 s. 47(c).



127

82AM Embargo notice

(1) An inspector executing a search warrant who is authorised by that warrant to seize any thing may, if the thing cannot, or cannot readily, be physically seized and removed, issue an embargo notice in the prescribed form—

(a) by causing a copy of the notice to be served on the occupier; or

(b) if the occupier cannot be located after all reasonable steps have been taken to do so, by affixing a copy of the notice to the thing in a prominent position.

(2) A person who knows that an embargo notice relates to a thing and who—

(a) sells; or

(b) leases; or

(c) without the written consent of the inspector who issued the embargo notice, moves; or

(d) transfers; or

(e) otherwise deals with—

the thing or any part of the thing is guilty of an offence and liable to a penalty not exceeding 50 penalty units.

(3) It is a defence to a prosecution for an offence against subsection (2) to prove that the accused moved the thing or the part of the thing for the purpose of protecting and preserving it.

(4) Despite anything in any other Act, a sale, lease, transfer or other dealing with a thing in contravention of this section is void.

S. 82AM inserted by No. 17/1999 s. 13.

S. 82AM(1) amended by No. 103/2004 s. 56.

s. 82AM

S. 82AM(3) amended by No. 68/2009 s. 97(Sch. item 88.2).



128

82AN Copies of seized documents (1) If an inspector retains possession of a document

taken or seized from a person under this Division, the inspector must give the person, within 21 days of the seizure, a copy of the document certified as correct by the inspector.

(2) A copy of a document certified under subsection (1) shall be received in all courts and tribunals to be evidence of equal validity to the original.

82AO Retention and return of seized documents or things (1) If an inspector seizes a document or other thing

under this Division, the inspector must take reasonable steps to return the document or thing to the person from whom it was seized if the reason for its seizure no longer exists.

(2) If the document or thing seized has not been returned within 3 months after it was seized, the inspector must take reasonable steps to return it unless—

(a) proceedings for the purpose for which the document or thing was retained have commenced within that 3 month period and those proceedings (including any appeal) have not been completed; or

(b) the Magistrates' Court makes an order under section 82AP extending the period during which the document or thing may be retained.

82AP Magistrates' Court may extend 3 month period (1) An inspector may apply to the Magistrates' Court

within 3 months after seizing a document or other thing under this Division for an extension of the period for which the inspector may retain the document or thing.

S. 82AN inserted by No. 17/1999 s. 13.

s. 82AN

S. 82AO inserted by No. 17/1999 s. 13.

S. 82AP inserted by No. 17/1999 s. 13.



129

(2) The Magistrates' Court may order such an extension if it is satisfied that retention of the document or other thing is necessary—

(a) for the purposes of an investigation into whether a contravention of this Act or the regulations has occurred; or

(b) to enable evidence of a contravention of this Act or the regulations to be obtained for the purposes of a proceeding under this Act.

(3) The Magistrates' Court may adjourn an application to enable notice of the application to be given to any person.

82AQ Requirement to assist inspector during entry To the extent that it is reasonably necessary to determine compliance with this Act or the regulations, an inspector exercising a power of entry under this Division who produces his or her identity card for inspection by the occupier of the premises or an agent or employee of the occupier may require that person—

(a) to give information to the inspector, orally or in writing; and

(b) to produce documents to the inspector; and

(c) to give reasonable assistance to the inspector.

82AR Refusal or failure to comply with requirement

A person must not refuse or fail, without reasonable excuse, to comply with a requirement of an inspector under this Division.


S. 82AQ inserted by No. 17/1999 s. 13.

s. 82AQ

S. 82AR inserted by No. 17/1999 s. 13.



130

82AS Protection against self-incrimination (1) It is a reasonable excuse for a natural person to

refuse or fail to give information or do any other thing that the person is required to do by or under this Part, if the giving of the information or the doing of that other thing would tend to incriminate the person.

(2) Despite subsection (1), it is not a reasonable excuse for a natural person to refuse or fail to produce a document that the person is required to produce by or under this Part, if the production of the document would tend to incriminate the person.

82AT Offence to give false or misleading information A person must not—

(a) give information to an inspector under this Division that the person believes to be false or misleading in any material particular; or

(b) produce a document to an inspector under this Division that the person knows to be false or misleading in a material particular without indicating the respect in which it is false or misleading and, if practicable, providing correct information.


82ATA Powers of court if requirement to produce information not complied with

(1) If the Director is satisfied that a person has, without reasonable excuse, failed to comply with a requirement under section 82AD, the Director may certify that failure to a court.

S. 82AS inserted by No. 17/1999 s. 13, substituted by No. 79/2006 s. 82.

s. 82AS

S. 82AT inserted by No. 17/1999 s. 13.

S. 82ATA inserted by No. 2/2008 s. 60(Sch. item 7.1).



131

(2) Subject to subsection (3), if an inspector is satisfied that a person has, without reasonable excuse, failed to comply with a requirement of the inspector under section 82AA, 82AB, 82AD or 82AQ, the inspector may certify that failure to a court.

(3) The inspector cannot certify a failure to a court under subsection (1) if the person to whom the failure relates has been charged with an offence against section 82AR.

(4) If the Director or an inspector so certifies under subsection (1) or (2), the court may inquire into the case and may order the person to comply with the requirement within the period specified by the court.

(5) If a proceeding is brought under this section in relation to a failure to comply with a requirement, a person to whom the failure relates cannot be charged with an offence against section 82AR in respect of that failure.

82AU Application of provisions relating to inspections Sections 120, 135, 136, 137, 138 and 139 of the Fair Trading Act 1999 apply (with any necessary modifications) in relation to the exercise or attempted exercise of a power of an inspector under this Division as if any reference in those sections to Part 10 of that Act were a reference to this Division.

82AV Service of documents (1) A written requirement by an inspector under this

Division may be given personally or by registered post to a person—

(a) at the last known place of business, employment or residence of the person; or

S. 82AU inserted by No. 17/1999 s. 13.

S. 82AV inserted by No. 17/1999 s. 13.

s. 82AU



132

(b) in the case of a body corporate, at the registered office of the body corporate.

(2) A person who provides a document or information in response to a requirement of an inspector under this Division may send that document or information to the Director by registered post.

82AW Confidentiality (1) An inspector must not, except to the extent

necessary to carry out the inspector's functions under this Division, give to any other person, whether directly or indirectly, any information acquired by the inspector in carrying out those functions.


(2) Subsection (1) does not apply to the giving of information—

(a) to a court or tribunal in the course of legal proceedings; or

(b) pursuant to an order of a court or tribunal; or

(c) to the extent reasonably required to enable the investigation or the enforcement of a law of this State or of any other State or Territory or of the Commonwealth; or

(d) to the Business Licensing Authority established under the Business Licensing Authority Act 1998; or

(e) with the written authority of the Director; or

(f) with the written authority of the person to whom the information relates.

S. 82AV(2) amended by No. 35/2000 s. 47(e).

S. 82AW inserted by No. 17/1999 s. 13.

s. 82AW



133

82AX Production of information to Authority (1) The Authority may require a licensed motor car

trader to answer any question or provide information relating to the business of the motor car trader that the Authority reasonably requires to carry out its functions in relation to that motor car trader.

(2) A licensed motor car trader must not refuse or fail, without reasonable excuse, to comply with a requirement made by the Authority under this section.


82AY Rule against self-incrimination does not apply (1) A licensed motor car trader is not excused from

answering a question or providing information under section 82AX on the ground that the answer or the information might tend to incriminate the motor car trader.

(2) If the licensed motor car trader claims, before answering a question, that the answer might tend to incriminate the motor car trader, the answer is not admissible in evidence in any criminal proceedings, other than in proceedings in respect of the falsity of the answer.

82B Verification of details supplied to the Authority The Authority may specify how any information supplied to it under this Act is to be verified, and without limiting the scope of this power, may require that the information be supplied in the form of, or be verified by, a statutory declaration.

82C Extended time for prosecutions Despite anything to the contrary in any Act, a proceeding for an offence against this Act may be commenced within 3 years after the date on which the offence is alleged to have been committed.

S. 82AX inserted by No. 17/1999 s. 13.

s. 82AX

S. 82AY inserted by No. 17/1999 s. 13.





134

82CA Who may bring proceedings for offences? (1) Proceedings for an offence against this Act may

only be brought by—

(a) the Director; or

(b) a person authorised by the Director for the purposes of this section; or

(c) a member of the police force.

(2) In proceedings for an offence against this Act it must be presumed, in the absence of evidence to the contrary, that the person bringing the proceedings was authorised to bring the proceedings.

(3) Subsection (1) does not apply to proceedings for an indictable offence.

Division 2—Infringement notices

82D Power to serve a notice (1) An authorised officer may serve an infringement

notice on any person that she or he has reason to believe has committed an offence specified by the regulations as an offence in respect of which an infringement notice may be issued.

(2) In this Division authorised officer means—

(a) an inspector under the Consumer Affairs Act 1972;

(b) a member of the police force;

(c) a person authorised in writing by the Director.

S. 82CA inserted by No. 103/2004 s. 57.

s. 82CA

Pt 5A Div. 2 (Heading) inserted by No. 74/1996 s. 37.




135

(3) An offence referred to in subsection (1) for which an infringement notice may be served is an infringement offence within the meaning of the Infringements Act 2006 and the penalty for that offence is the prescribed infringement penalty in respect of that offence.

82E Form of notice For the purposes of section 82D, an infringement notice must be in the form required by the Infringements Act 2006 and may contain any additional information approved by the Director.

* * * * *

82H Further proceedings concerning infringement notices

* * * * *

(5) Nothing in Division 5 of Part 2 of the Infringements Act 2006 prevents the Tribunal from conducting an inquiry under section 30 and taking disciplinary action under section 31 against a person for any act or omission for which an infringement notice was issued.

S. 82D(3) inserted by No. 32/2006 s. 94(Sch. item 34(1)).

S. 82E inserted by No. 74/1996 s. 37, substituted by No. 32/2006 s. 94(Sch. item 34(2)).

s. 82E

Ss 82F, 82G inserted by No. 74/1996 s. 37, repealed by No. 32/2006 s. 94(Sch. item 34(3)).

S. 82H inserted by No. 74/1996 s. 37.

S. 82H(1)–(4) repealed by No. 32/2006 s. 94(Sch. item 34(4)(a)).

S. 82H(5) amended by Nos 52/1998 s. 172, 32/2006 s. 94(Sch. item 34(4)(b)).



136

Division 3—Application of Fair Trading Act 1999

82I Application of Fair Trading Act 1999

(1) Sections 143 and 144 and Division 2 of Part 11 (except sections 152A and 155) of the Fair Trading Act 1999 extend and apply (with any necessary modifications) to this Act as if any reference in those provisions to the Fair Trading Act 1999 were a reference to this Act.

(1A) For the purposes of subsection (1), section 153 of the Fair Trading Act 1999 applies as if a reference in that section to Part 2A or 6 of the Fair Trading Act 1999 were a reference to this Act.

(2) For the purposes of subsection (1), section 154 of the Fair Trading Act 1999 applies as if a reference to prescribed proceedings were a reference to—

(a) proceedings for an offence against a provision of this Act (except Division 1); or

(b) proceedings on an application for an injunction under section 149, 149A, 150, 151A or 151B of the Fair Trading Act 1999 (as applied by subsection (1)) against a person alleged to have contravened a provision of this Act (except Division 1); or

Pt 5A Div. 3 (Heading and s. 82I) inserted by No. 103/2004 s. 58.

S. 82I inserted by No. 103/2004 s. 58.

S. 82I(1) amended by Nos 17/2007 s. 36(Sch. item 9.1), 2/2008 s. 60(Sch. item 7.2)

s. 82I

S. 82I(1A) inserted by No. 17/2007 s. 36(Sch. item 9.2), amended by No. 72/2010 s. 48(Sch. item 16(2)).

S. 82I(2)(b) amended by No. 17/2007 s. 36(Sch. item 9.3).



137

(c) proceedings on an application for an order under section 158, or for damages under section 159, of the Fair Trading Act 1999 (as applied by subsection (1)).

_______________

s. 82I

Part 6—Miscellaneous


138

PART 6—MISCELLANEOUS

83 Failure to disclose (1) A motor car trader who sells any motor car or

gives any motor car in exchange for any other goods (whether as principal or agent) to any person (not being a motor car trader or special trader) must disclose to that person that he or she is a motor car trader.

(2) A person who as a servant or agent of a motor car trader, negotiates any sale of a motor car to, or exchange of a motor car for any other goods with, any person (not being a motor car trader or special trader) must disclose to that person—

(a) that the sale or exchange is being made by a motor car trader; or

(b) the name and address of the motor car trader.

(3) It is a defence in any proceedings brought against a motor car trader for an offence against this section to prove that a licensed motor car trader acted on behalf of the motor car trader in the selling or giving in exchange of the motor car.


83A Retention of documents

(1) A person who under this Act is permitted or required to send a copy of any document or notice to the Director, Authority or Committee must retain the original document or notice for a period of 7 years after the copy was sent.


New Pt 6 (Heading) inserted by No. 74/1996 s. 35(2).

s. 83

S. 83A inserted by No. 74/1996 s. 38, substituted by No. 8/2003 s. 71.



139

(2) Subsection (1) does not apply to any document or notice—

(a) created by a person using software approved by the Director and lodged on an Internet site operated by the State; and

(b) forwarded by electronic transmission to the Director, Authority or Committee.

(3) A person must retain any document that is required to be kept by this Act or the regulations for at least 7 years from the date of its creation.


83B Offence to destroy documents required by the Act

(1) A motor car trader must not destroy, conceal, mutilate or alter any document that she, he or it is required to keep by this Act or the regulations.


(2) It is a defence to a charge under subsection (1) if the person charged can show that the destruction, concealment, mutilation or alteration of the document was not done with the intention of defeating the purposes of this Act.

83C Motor car traders must supply copies of agreements etc.

(1) A motor car trader must give a person who buys, sells or exchanges a motor car from, to or with the motor car trader a copy of any document listed in the regulations for the purposes of this section as soon as is practicable after the purchase, sale or exchange.



s. 83B

S. 83B(1) amended by No. 8/2003 s. 72.




140

(2) This section does not apply if the person who buys, sells or exchanges the car from, to or with the motor car trader is a licensed motor car trader or a special trader.

83D Complaints concerning motor car trader are privileged

If a person—

(a) lodges a complaint with the Authority, the Director or the Committee; or

(b) produces or gives a document or any information or evidence to the Authority, the Director or the Committee—

the person is not liable in any way for any loss, damage or injury suffered by another person by reason only of the lodging of that complaint or the production or giving of that document, information or evidence.

84 Offence to place certain advertisements A motor car trader must not cause or permit to be published any public advertisement which—

(a) suggests that a motor car is being offered or displayed for sale, or that enquiries concerning a motor car may be made by potential purchasers, at any dwelling house; and

(b) does not disclose that the person on whose behalf it is published is a motor car trader.



s. 83D

S. 83D(a) amended by No. 52/1998 s. 173.

S. 83D(b) amended by No. 52/1998 s. 173.

S. 84(a) amended by No. 74/1996 s. 55(1)(c).



141

84A False or misleading statements

(1) A person must not in, or in relation to—

(a) an application for a licence; or

* * * * *

(c) the making of a claim to the Committee; or

(d) any document required by this Act or by the Authority—

give information or make a statement that is false or misleading by reason of the inclusion of any false or misleading matter or the omission of any material matter.

Penalty: 50 penalty units, in the case of a natural person or, in the case of a corporation, 100 penalty units.

(2) It is a defence to a prosecution of a person for an offence under subsection (1) if the person proves that, when the information was given or the statement made, the person—

(a) believed on reasonable grounds—

(i) that the false matter was true; or

(ii) that the misleading matter was not misleading; or


s. 84A

S. 84A(1) amended by No. 8/2003 s. 73.

S. 84A(1)(b) repealed by No. 52/1998 s. 174.

S. 84A(1)(c) amended by No. 74/1996 s. 39(1).

S. 84A(1)(d) inserted by No. 74/1996 s. 39(1).



142

(b) in the case of an omission—

(i) believed on reasonable grounds that no material matter had been omitted; or

(ii) did not know that the omitted matter was material—

and the person notified the Authority of the false or misleading matter or omission as soon as the person became aware of it.

84B Production of records

(1) If a record is produced to the Committee or the Authority in respect of any application or claim under this Act, the Committee or the Authority (as the case may be)—

(a) if it considers it necessary for the purpose of the application or claim, may keep the record for any period it considers necessary; and

(b) may make copies of the record or any part of the record; and

(c) may give to the person who produced the record a copy of the record which has been certified by a member of the Committee or the Registrar (as the case may be) to be a true copy of the record.

(2) If—

(a) the Committee or the Authority makes a copy of a record produced in respect of the application or claim; and

S. 84A(2)(b) amended by No. 74/1996 s. 39(2).


s. 84B

S. 84B(1) amended by No. 52/1998 s. 175(1)(a).

S. 84B(1)(a) amended by No. 52/1998 s. 175(1)(b).

S. 84B(1)(c) amended by No. 52/1998 s. 175(1)(c).

S. 84B(2)(a) amended by No. 52/1998 s. 175(2).



143

(b) a member of the Committee or the Authority (as the case may be) certifies the copy to be a true copy of the record—

the certified copy is admissible in evidence in any proceedings as if it were the record of which it is certified to be a copy.

85 Corporations (1) Where any notice or application is by or under this

Act authorized or required to be given or made by any person in connection with any licence or proceeding, it may, in the case of a body corporate, be given or made on behalf of the body corporate by any chairperson, director, manager, secretary or officer of the body corporate.

* * * * *

85A Simplified procedure concerning proof that person traded in motor cars

(1) In a prescribed class of hearing a statement by a relevant person—

(a) that an address, telephone number or post office box number is a person's address, telephone number or post office box number is evidence of that fact;

(b) that a person was registered in relation to a business name on a specified date is evidence of that fact;

s. 85

S. 85(2)(3) repealed by No. 103/2004 s. 59.


S. 85A(1) amended by No. 91/2005 s. 6(1).



144

(c) that an advertisement (or invitation to treat) for the purchase, sale or exchange of a motor car contained—

(i) the name, address, telephone number or post office box number of the person charged or an agent of the person charged; or

(ii) a business name in relation to which the person charged or an agent of the person charged is registered—

is evidence that the person charged offered to buy, sell or exchange the motor car (as the case may be);

(d) that such an advertisement (or invitation to treat) was published is evidence that the advertisement (or invitation) was published;

(e) that such an advertisement (or invitation to treat) was published on a specified date is evidence that the advertisement (or invitation) was published on that date.

(2) Nothing in this section prevents the asking of any question concerning the basis on which a statement was made under this section.


prescribed class of hearing means—

(a) a hearing of a charge for an offence against section 7; or

(b) a hearing in a proceeding under a provision of the Fair Trading Act 1999 as applied by section 82I of this Act;

s. 85A




145

relevant person means—

(a) in the case of a hearing of a charge for an offence against section 7, the prosecutor or the informant; and

(b) in any other case, the Director.

86 Service of notices A person may give to, or serve on, another person a notice or a copy of a notice under this Act—

(a) by delivering it personally to the other person; or

(b) by sending it by post addressed to the other person's last known place of residence or business.

86A Extension of time (1) The Authority, on the application of the Director,

the Chief Commissioner of Police or any person or on its own initiative, may extend any time limit fixed by this Act for taking any action.

(2) The Authority may make an order under this section even if an application for the making of the order was not made until after the end of the time appointed or fixed for taking the action.

(3) This section does not apply to any time limit applying to the taking of any proceeding before the Tribunal.

87 Certificates A certificate signed or purporting to be signed by the Registrar and certifying as to any matter relating to the register is evidence of that matter.


s. 86





146

87A Waiver or refund of fees (1) The Registrar may, in a particular case or class of

cases—

(a) waive or reduce fees that would otherwise be payable under this Act; or

(b) refund, in whole or in part, fees paid under this Act.

(2) If—

(a) a person—

(i) pays a fee under this Act and the Registrar then waives or reduces the fee; or

(ii) is for any other reason entitled to a refund of a fee under this Act; and

(b) the person owes the Authority or the Committee any money—

the Registrar may give the refund to which the person is entitled to the Authority or the Committee to enable it to be applied towards the debt owed to the Authority or the Committee.

88 Contracting out prohibited (1) Any term of an agreement purporting to exclude,

limit or modify the operation of this Act, or to preclude any right of action or any defence based on or arising out of any failure to comply with this Act, is void.

(2) A motor car trader must not enter into an agreement containing a term referred to in subsection (1).



s. 87A



147

88A Agreement not illegal etc. by reason of offence (1) An agreement for the purchase or sale of a motor

car is not illegal, void or unenforceable by reason only that the motor car trader with whom the agreement is made is guilty of an offence under this Act or the regulations in relation to the agreement.

(2) If a motor car trader commits an offence under this Act or the regulations in relation to an agreement for the purchase or sale of a motor car, the other party to the agreement does not aid, abet, counsel or procure the offence by reason only of being, or having been, a party to the agreement.

(3) This section only applies to agreements entered into after the date section 41 of the Motor Car Traders (Amendment) Act 1996 came into operation.

88B Agreement voidable if section 37, 38, 41 or 42 breached

(1) A person may withdraw from an agreement with a motor car trader to buy or sell a motor car if—

(a) the agreement does not comply with section 37, 41 or 42 or if the motor car trader has committed an offence under section 38 in relation to the car; and

(b) the car is still in the possession of the person or the motor car trader.

(2) A person may only do this within 3 months of the date the agreement was signed.

(3) To withdraw from the agreement, the person must give the motor car trader (or an employee or agent of the motor car trader) a written notice stating that the person is exercising the right conferred on her, him or it by this section and describing briefly the reason for the withdrawal.



s. 88A



148

(4) If a person withdraws from an agreement under this section, the parties to the agreement must do everything that is practicable to restore themselves to the position they were in before entering into the agreement.

(5) In particular, the motor car trader must refund any money paid to her, him or it under the agreement by the other party to the agreement.


(6) This section only applies to agreements entered into after the date section 41 of the Motor Car Traders (Amendment) Act 1996 came into operation.

89 Other rights and remedies Except as is expressly provided in this Act, nothing in this Act shall have the effect of limiting, restricting or otherwise affecting any right or remedy a person would have had if this Act had not been enacted.

89A Delegation by Director The Director may, by instrument, delegate to—

(a) the Authority; or

(b) the Registrar; or

(c) any person engaged or appointed under section 7(2) or 15 of the Business Licensing Authority Act 1998; or

(d) any person or class of person employed under Part 3 of the Public Administration Act 2004 in the administration of this Act—

any function or power of the Director under this Act other than this power of delegation.

s. 89


S. 89A(d) substituted by No. 35/2000 s. 47(f), amended by No. 108/2004 s. 117(1) (Sch. 3 item 136.2).



149

90 Regulations (1) The Governor in Council may make regulations

for or with respect to—

(a) exempting any person or class of person from the operation of this Act and prescribing the extent of the exemption; and

(b) exempting any class or classes of sales from the operation of this Act and prescribing the extent of the exemption; and

(c) regulating the conduct of a motor car trader and servants or agents carrying on the business of trading in motor cars; and

(d) regulating the form and content of any warranties or insurance policies given in respect of motor cars (other than the warranty imposed by section 54); and

(e) prescribing the information, including any charges, to be disclosed in an advertisement for the sale by any person of a motor car; and

(f) prescribing the notice to be displayed on motor cars not currently for sale in the possession of a motor car trader; and

(g) prescribing the documents, accounts and records to be kept by licensed motor car traders and the manner of keeping them and the period for which they must be kept; and

(h) prescribing the procedure of the Committee; and

(i) prescribing the form of licences, applications and notices to be used for the purposes of this Act; and

S. 90(1)(d) substituted by No. 74/1996 s. 42(1)(a).

S. 90(1)(e) amended by No. 74/1996 s. 42(1)(b)(i)(ii).

S. 90(1)(g) repealed by No. 52/1998 s. 180(a), new s. 90(1)(g) inserted by No. 8/2003 s. 75(1).

s. 90

S. 90(1)(i) amended by No. 74/1996 s. 42(1)(c).



150

(j) prescribing fees payable—

(i) for or on the issue of certificates by the Authority;

(ii) for searches of the records kept by the Authority;

(iii) for licences, including application fees and annual fees;

(iv) for other applications to the Authority under this Act;

(v) for the issue of other documents under this Act;

(vi) for any other procedures required by this Act, other than procedures relating to the Tribunal;

(k) prescribing, for the purposes of Division 2 of Part 5A—

(i) the offences under this Act or the regulations in respect of which an infringement notice may be issued; and

(ii) the penalties that apply if those offences are dealt with by an infringement notice; and

(l) generally prescribing any other matter or thing required or permitted by this Act to be prescribed or necessary or expedient to be prescribed to give effect to this Act.

(2) Regulations under this Act—

(a) may be of general or specially limited application; and

(b) may differ according to difference in time, place or circumstances; and

S. 90(1)(j) substituted by No. 52/1998 s. 180(b).

S. 90(1)(k) substituted by No. 74/1996 s. 42(1)(d).

s. 90

S. 90(1)(l) substituted by No. 74/1996 s. 42(1)(d).



151

(c) may impose a penalty not exceeding 10 penalty units for any contravention of these regulations; and

(d) may prescribe fees that differ according to differences in circumstances.

(3) Regulations made under subsection (1)(k)(ii) must not specify a penalty in respect of an offence by a person that is more than one-tenth of the maximum penalty the person would be liable for under the Act or the regulations for committing that offence for the first time.

_______________

* * * * *

S. 90(2)(c) amended by No. 8/2003 s. 75(2)(a). S. 90(2)(d) inserted by No. 8/2003 s. 75(2)(b).

S. 90(3) inserted by No. 74/1996 s. 42(2).

Pt 7 (Heading and ss 91–117) amended by Nos 6/1989 ss 21–31, 74/1996 ss 43, 44–49, 51(d), 55(1)(d)(3), 46/1998 s. 7(Sch. 1), repealed by No. 52/1998 s. 181.

s. 90

Part 8—Transitional Provisions and Consequential Amendments


152

PART 8—TRANSITIONAL PROVISIONS AND CONSEQUENTIAL AMENDMENTS

* * * * *

120 Subrogation The Secretary to the Committee is the successor in law to the secretary to the Motor Car Traders Committee established under the Motor Car Traders Act 1973 for the purposes of subrogation to the extent of payments out of the Fund under that Act.

121 Transitional—Motor Car Traders Amendment Act 2008

Despite anything to the contrary in this Act, section 35A (as in force immediately before the commencement of section 12 of the Motor Car Traders Amendment Act 2008) continues to apply to the employment of any person by a motor car trader by whom the person was employed immediately before that commencement.

122 Further transitional—Motor Car Traders Amendment Act 2008

The Motor Car Traders Claims Committee is the same body as the Guarantee Fund Claims Committee despite the change in its name by section 20 of the Motor Car Traders Amendment Act 2008.

__________________

Ss 118, 119 repealed by No. 74/1996 s. 55(1)(e).

s. 120

S. 121 repealed by No. 74/1996 s. 55(1)(e), new s. 121 inserted by No. 4/2008 s. 29.

S. 122 repealed by No. 74/1996 s. 55(1)(e), new s. 122 inserted by No. 4/2008 s. 30.


153

* * * * *

═══════════════

Sch. repealed by No. 74/1996 s. 55(1)(e).

Sch.


154

ENDNOTES

1. General Information Minister's second reading speech—

Legislative Assembly: 9 October 1986

Legislative Council: 3 December 1986

The long title for the Bill for this Act was "A Bill to provide for the licensing of motor car traders and the regulation of their operation and for other purposes.".

The Motor Car Traders Act 1986 was assented to on 16 December 1986 and came into operation as follows:

Section 16(1)–(8)(10) on 1 January 1988; section 16(9) on 1 April 1988; sections 43, 44 on 1 October 1987; rest of Act (except section 53) on 1 August 1987: Government Gazette 29 July 1987 page 1993; section 53 was never proclaimed, repealed by section 51(a) of the Motor Car Traders (Amendment) Act 1996, No. 74/1996.

Endnotes


155

2. Table of Amendments This Version incorporates amendments made to the Motor Car Traders Act 1986 by Acts and subordinate instruments.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Chattel Securities Act 1987, No. 15 /1987 Assent Date: 12.5.87 Commencement Date: 1.8.87: Government Gazette 29.7.87 p. 1992 Current State: All of Act in operation

State Trust Corporation of Victoria Act 1987, No. 55/1987 Assent Date: 20.10.87 Commencement Date: 2.11.87: Government Gazette 28.10.87 p. 2925 Current State: All of Act in operation

Credit (Administration) (Amendment) Act 1989, No. 4/1989 Assent Date: 2.5.89 Commencement Date: Ss 1–3, 5 on 2.5.89: s. 2(1); ss 4, 6–9 on 29.4.91:

Government Gazette 6.3.91 p. 483 Current State: All of Act in operation

Licensing Authorities (Amendment) Act 1989, No. 6/1989 Assent Date: 2.5.89 Commencement Date: Pt 3 (ss 11–32) on 13.7.89: Government Gazette

12.7.89 p.1710 Current State: This information relates only to the provision/s

amending the Motor Car Traders Act 1986

Transport (Amendment) Act 1989, No. 44/1989 Assent Date: 6.6.89 Commencement Date: S. 41(Sch. 2 item 28) on 1.7.89: s. 2(1) Current State: This information relates only to the provision/s


Second-Hand Dealers and Pawnbrokers Act 1989, No. 54/1989 Assent Date: 14.6.89 Commencement Date: S. 35(3) on 10.9.90: Government Gazette 5.9.90

p. 2680 Current State: This information relates only to the provision/s


Magistrates' Court (Consequential Amendments) Act 1989, No. 57/1989 Assent Date: 14.6.89 Commencement Date: S. 3(Sch. item 137) on 1.9.90: Government Gazette

25.7.90 p. 2217 Current State: This information relates only to the provision/s


Endnotes


156

Consumer Credit (Victoria) Act 1995, No. 41/1995 Assent Date: 14.6.95 Commencement Date: S. 62(Sch. 1 item 5) on 1.11.96: Government Gazette



Motor Car Traders (Amendment) Act 1996, No. 74/1996 Assent Date: 17.12.96 Commencement Date: Ss 1, 2 on 17.12.96: s. 2(1); ss 3–12, 14–42(1)(b),

42(1)(d)–51(a), 51(c), 52–55 on 1.3.97: Government Gazette 20.2.97 p. 374, ss 13, 42(1)(c), 51(b)(d) on 22.6.98: Government Gazette 28.5.98 p. 1189

Current State: All of Act in operation

Public Sector Reform (Miscellaneous Amendments) Act 1998, No. 46/1998 Assent Date: 26.5.98 Commencement Date: S. 7(Sch. 1) on 1.7.98: s. 2(2) Current State: This information relates only to the provision/s


Tribunals and Licensing Authorities (Miscellaneous Amendments) Act 1998, No. 52/1998

Assent Date: 2.6.98 Commencement Date: Ss 139–181 on 1.7.98: Government Gazette 18.6.98



Licensing and Tribunal (Amendment) Act 1998, No. 101/1998 (as amended by No. 74/2000)

Assent Date: 1.12.98 Commencement Date: Pt 4 (ss 8, 9) on 1.2.99: Government Gazette 24.12.98



Fair Trading (Inspectors Powers and Other Amendments) Act 1999, No. 17/1999 Assent Date: 18.5.99 Commencement Date: Ss 9–13 on 1.9.99: Government Gazette 19.8.99



Business Registration Acts (Amendment) Act 2000, No. 35/2000 Assent Date: 6.6.00 Commencement Date: S. 47 on 19.6.00: Government Gazette 15.6.00 p. 1248 Current State: This information relates only to the provision/s


Endnotes


157

Statute Law Amendment (Relationships) Act 2001, No. 27/2001 Assent Date: 12.6.01 Commencement Date: S. 8(Sch. 6 item 3) on 28.6.01: Government Gazette



Corporations (Consequential Amendments) Act 2001, No. 44/2001 Assent Date: 27.6.01 Commencement Date: S. 3(Sch. item 84) on 15.7.01: s. 2 Current State: This information relates only to the provision/s


Auction Sales (Repeal) Act 2001, No. 84/2001 Assent Date: 11.12.01 Commencement Date: S. 9 on 1.1.03: s. 2(4) Current State: This information relates only to the provision/s


Business Licensing Legislation (Amendment) Act 2003, No. 8/2003 Assent Date: 6.5.03 Commencement Date: Ss 60–75 on 1.11.03: Government Gazette 30.10.03



Fair Trading (Further Amendment) Act 2003, No. 106/2003 Assent Date: 9.12.03 Commencement Date: S. 27 on 10.12.03: s. 2(1) Current State: This information relates only to the provision/s


Fair Trading (Enhanced Compliance) Act 2004, No. 103/2004 Assent Date: 21.12.04 Commencement Date: Ss 55–59 on 22.12.04: s. 2(1) Current State: This information relates only to the provision/s


Public Administration Act 2004, No. 108/2004 Assent Date: 21.12.04 Commencement Date: S. 117(1)(Sch. 3 item 136) on 5.4.05: Government

Gazette 31.3.05 p. 602 Current State: This information relates only to the provision/s


Legal Profession (Consequential Amendments) Act 2005, No. 18/2005 Assent Date: 24.5.05 Commencement Date: S. 18(Sch. 1 item 71) on 12.12.05: Government

Gazette 1.12.05 p. 2781 Current State: This information relates only to the provision/s


Endnotes


158

Motor Car Traders and Fair Trading Acts (Amendment) Act 2005, No. 91/2005 Assent Date: 29.11.05 Commencement Date: Ss 3–6 on 1.12.06: s. 2(3) Current State: This information relates only to the provision/s


Infringements (Consequential and Other Amendments) Act 2006, No. 32/2006 Assent Date: 13.6.06 Commencement Date: S. 94(Sch. item 34) on 1.7.06: Government Gazette



Justice Legislation (Further Amendment) Act 2006, No. 79/2006 Assent Date: 10.10.06 Commencement Date: Ss 81, 82 on 11.10.06: s. 2(1) Current State: This information relates only to the provision/s


Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006, No. 80/2006

Assent Date: 10.10.06 Commencement Date: S. 26(Sch. item 72) on 11.10.06: s. 2(1) Current State: This information relates only to the provision/s


Fair Trading and Consumer Acts Amendment Act 2007, No. 17/2007 Assent Date: 29.5.07 Commencement Date: Ss 35, 36(Sch. item 9) on 30.5.07: s. 2(1) Current State: This information relates only to the provision/s


Fair Trading and Consumer Acts Further Amendment Act 2008, No. 2/2008 Assent Date: 11.2.08 Commencement Date: S. 60(Sch. item 7) on 12.2.08: s. 2(1) Current State: This information relates only to the provision/s


Motor Car Traders Amendment Act 2008, No. 4/2008 Assent Date: 4.3.08 Commencement Date: Ss 4–30 on 1.12.08: s. 2(2) Current State: This information relates only to the provision/s


Relationships Act 2008, No. 12/2008 Assent Date: 15.4.08 Commencement Date: S. 73(1)(Sch. 1 item 41) on 1.12.08: s. 2(2) Current State: This information relates only to the provision/s


Endnotes


159

Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009, No. 68/2009

Assent Date: 24.11.09 Commencement Date: S. 97(Sch. item 88) on 1.1.10: Government Gazette



Credit (Commonwealth Powers) Act 2010, No. 11/2010 Assent Date: 30.3.10 Commencement Date: Ss 53–56 on 1.7.10: Government Gazette 24.6.10



Consumer Affairs Legislation Amendment (Reform) Act 2010, No. 63/2010 Assent Date: 28.9.10 Commencement Date: S. 76 on 1.11.10: Government Gazette 14.10.10



Fair Trading Amendment (Australian Consumer Law) Act 2010, No. 72/2010 Assent Date: 19.10.10 Commencement Date: S. 48(Sch. item 16) on 1.1.11: Special Gazette

(No. 502) 20.12.10 p. 1 Current State: This information relates only to the provision/s


–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Endnotes


160

3. Explanatory Details No entries at date of publication.

Endnotes


161

INDEX Subject

Section

Act commencement 2 exemptions from 3 preservation of rights and remedies 89 purpose 1 transitional provisions 29, 35B, 120–122 Agreements for sale See Motor cars––Purchase, sale, exchangeAuctionsSee Motor cars––Purchase, sale, exchangeAuthorised officers 82DAuthority See Business Licensing AuthorityBodies corporate changes in directors 19A–20 director (def.) 3 enforcement of Fund claims against 80 offences by 19A, 38 required to cease trading as a motor car trader 19A, 21 service of notices on, applications made by 85See also Motor car traders––Licences;

Motor car traders––LicenseesBusiness Licensing Authority powers and duties in regards to

business names 17, 18disclosure of information 12Aextension of time limits 86Apermissions to carry on businesses 33production of information to 82AX, 82B records produced 84B

Registrar 13, 16, 18, 22, 26, 87, 87A

review of decisions of 32 verification of details supplied to 82BSee also Motor car traders––LicencesChief Commissioner of Police duties and powers regarding

applications for inquiries into licences 30licence applications 11, 16supply of information to inspectors 82AC

Claims See Motor Car Traders Guarantee FundCommittee See Motor Car Traders Claims Committee Compensation 31, 39Cooling-off periods 43Damages 40, 50BDefinitions and references 3, 13A, 29, 29A,

35A, 36, 42A, 43, 50C, 51, 52, 69, 76, 82AA, 82AC, 82AD, 82D, 85A


162

Subject

Section

Director of Consumer and Business Affairs delegation of powers by 89A notice of failure to cancel security interests 49 powers and duties regarding

answers to questions, supply of information 82AC, 82AD, 82AF, 82ATA

applications for inquiries into licences 30disclosure of information 12Ainfringement notices 82Elicences and licence applications 11, 16, 30A proceedings 82CAsale of used cars 52search warrants 82AIunlicensed trading 50A

Employees 29A–29B, 29D, 35A, 35B, 121

Entry powers See Search and entry powersEvidence aiding and abetting unlicensed persons 50A certificates signed by Registrar 87 certified copies of records 84B odometer tampering 40 regarding unlicensed traders 85AExemptions 3Fair Trading Act 1999 application 82IFalse or misleading information 35, 52, 82AT, 84A Finance leases 3, 4Financiers 3, 4, 76Fund See Motor Car Traders Guarantee FundHire-purchase agreements 3, 4Infringement notices 82D–82E, 82H Inquiries 30Inspectors application of Fair Trading Act 1999 82AU definition 3 giving false or misleading information to 82AT identity cards 82, 82AG non-compliance with requirements of 82AR offences by 82 powers and duties in regards to

confidentiality 82AWinspection, production of documents 82A–82AB, 82AE search and entry 82AG, 82AH,

82AQsearch warrants 82AI–82AM seizure 82AE, 82AG,

82AH, 82AI, 82AL–82AP

supply of information, answers to questions 82AA–82AD, 82AF, 82AQ, 82ATA

unlicensed trading 50A requirement to assist 82AQ


163

Subject

Section

Legal proceedings See ProceedingsLicences See Motor car traders––LicencesLicensees See Motor car traders––LicenseesMagistrates' Court orders regarding

extension of time limits for items seized 82APrescission of sales agreements 45, 47supplying information, answering questions 82AF

Motor car traders complaints concerning 83D deemed to be in possession of motor cars 35 deemed trading 7A definition of motor car traders, trading in motor cars 3 disclosure 83, 84 register of 22, 87 self-incrimination rule not to apply to 82AY unlicensed 7, 50A, 50B, 85A See also Motor car traders––Businesses;

Motor car traders––Licences;Motor car traders––Licensees;Motor cars––Purchase, sale, exchange

Motor car traders––Businesses business addresses 8 carried on by authorised persons 33 commencement, cessation 20, 21 deemed trading 7A display of licences 25 documents relating to

availability for inspection 82Adestruction 83Belectronic lodgement, transmission 83Afalse, misleading statements in 84Ainspectors' powers 82AA–82AB,

82AEretention for 7 years 83A

names under which conducted 17, 18 permissions to be employed in 29A–29B, 29D permissions to carry on 33 prescribed particulars to be displayed 34 provision of information relating to

Authority's power to require 82AXcourt orders to require 82AFinspectors' power to require 82AA–82AD

prohibited employees 35A, 35B requirement to be licensed 7See also Motor car traders;

Motor car traders––Licences;Motor car traders––Licensees;Motor cars––Purchase, sale, exchange


164

Subject

Section

Motor car traders––Licences annual fees and statements 8, 13, 23–24A applications

consideration of, inquiries 11, 12false, misleading statements in 84Amaking of 8notice of changes to details in 10refund of licence fee on withdrawal of 92-year ban on re-lodging after refusal 15A

associates of applicants 13, 13A cancellation 24A, 28, 31, 31B,

50A, 82A conditions 14, 15, 16, 29D,

31 consent of applicants, licensees to disclosure of

information relevant to 11A display of 25 disqualification from holding 3, 13, 28, 31, 35A,

50A duplicates 26 effect of changes in partners, directors on 19–20 endorsements 15, 16, 18 fees 8–9, 13, 23–24A,

26, 87A form of 18 granting of 13, 14 held by persons with criminal records 29B, 29D issue 13, 18 notice of certain changes 20 permission to regain, hold, continue to hold 29A–29D refusal to grant 12, 13 restrictions 14, 15, 16, 31 return 21, 27, 31B review of decisions regarding 32 surrender 27, 82A suspension 29, 30A, 31, 31A–

31BSee also Motor car traders;

Motor car traders––Businesses;Motor car traders––Licensees

Motor car traders––Licensees definition of licensed motor car trader or licensee 3 disability, death 33 disciplinary measures against 31 grounds for determining fitness of person to be 13 grounds for taking action against 30 notice of certain changes 20 register 22See also Motor car traders;

Motor car traders––Businesses;Motor car traders––Licences;Motor cars––Purchase, sale, exchange


165

Subject

Section

Motor Car Traders Claims Committee acting Chairperson 61 Chairperson (def.) 3, 57 constitution 66 definition of Committee 3 determination of claims 63, 67, 71, 76–

77A disclosure of information regarding successful

claims by 12A further information regarding claims 68 legal proceedings taken on behalf of 72 membership, members 57–60 postponement of decisions of 77A powers on production of records to 84B procedures 70 protection for 73 provision of information required by specified

public bodies 69 review of decisions of 79 Secretary 62, 80, 120 transitional provision 122See also Motor Car Traders Guarantee FundMotor Car Traders Guarantee Fund claims against

admittance, refusal 77deferred payment 81disclosure of information regarding 12Afalse, misleading statements made in 84Amaking of and grounds for 76no further claims regarding same matter 78review of decisions 79subrogation where claims allowed 80

duties and powers of Treasurer 75 effect of upheld claims on licences, employment 13, 29–29A, 35A payments into and out of 74See also Motor Car Traders Claims CommitteeMotor cars––Purchase, sale, exchange advertisements 84 collateral credit agreements 3, 43, 43A, 47 contents 41–42 copies of documents, agreements 83C dealings book 35 dealings with young persons 37 deemed to be sold 4 definition 3 exempt vehicles and transactions 3 nature of transactions 4 not illegal, void or unenforceable 88A odometer tampering 38–40, 45 roadworthy certificates 42A


166

Subject

Section

sales agreements contents 41–42cooling-off periods 43copies 83Cnot illegal, void or unenforceable 88Aoff-trade-premises sales agreements 43rescission of 45, 47termination 43–44void terms 88withdrawal 88B

sales at public auctions, trade-only auctions 16, 50C–50J sales of used cars 3, 41, 43, 52–56 sales on consignment 36 security interests 3, 43, 48–50, 76 New motor cars See Motor carsOdometer tampering 38–40, 45Offences and penalties application of Fair Trading Act 1999 82I by bodies corporate 19A, 38 by credit providers 49 by inspectors 82 charges, convictions, guilty findings

as grounds for cancelling, refusing licences 13, 28prohibited employment as result of 35Aspecial permissions for persons concerned 29B–29D

infringements 82D–82E, 82H proceedings 82ATA, 82C–

82CA, 82H regarding

advertisements 84confidentiality 82AWconsignment selling 36cooling-off periods 43dealings book 35dealings with young persons 37destruction of documents 83Bdocuments for inspection 82Adocuments for sale or exchange 83Cdocuments to be retained 83Aembargo notices 82AMfailure to disclose 83, 84failure to produce information to Authority 82AXfalse or misleading information, statements 35, 52, 82AT, 84A licences and licence applications 10, 14, 15, 18, 21,

25, 27, 29D, 31B names businesses conducted under 17, 18non-compliance with inspectors 82ARnon-compliance with Tribunalodometer tampering 38–40permissions to carry on businesses 33prohibited employees 35A


167

Subject

Section

roadworthy certificates 42Asale of cars at public auctions, trade-only

auctions 16, 50D–50F, 50H, 50J

sale of used cars 52, 53, 56sales agreements 41, 42, 43, 44, 88,

88Bsecurity interests 48–49unlicensed traders 7, 50A, 85A

Partnerships See Motor car traders––LicencesPolice 82CAProceedings 72, 82C–82CA,

82HPublic auctions 3, 16Register 22, 87Registrar See Business Licensing AuthorityRegulations 90Review 32, 79Sales See Motor cars––Purchase, sale, exchangeSearch and entry powers requirement to assist inspectors during entry 82AQ with consent 82AG without consent or warrant 82AHSearch warrants 82AI–82AM Seizure copies of seized documents 82AN embargo notices 82AM of documents 82AE of items, things 82AG–82AI,

82AL retention and return of documents or things 82AO–82AP Self-incrimination 82AS, 82AY Service of documents, notices 82AV, 86Special traders 3, 76Trade ins 43Transitional provisions 35B, 120–122 Used cars name and address of previous owners 53 particulars to be displayed 52 sales agreements 41, 43 warranties and defects 54–56See also Motor cars––Purchase, sale, exchangeVictorian Civil and Administrative Tribunal powers in regards to

disciplinary measures 31inquiries 30rescission of sales agreements 47temporary suspension of licences 30A

review of Authority's decisions by 32 review of Committee's decisions by 79