motor car traders amendment (red tape reduction ...file/14-120sr.docx · web viewmotor car...

Motor Car Traders Amendment (Red Tape Reduction) Regulations 2014

S.R. No. 120/2014

TABLE OF PROVISIONS

Regulation Page

1 Objective 12 Authorising provision 23 Commencement 24 Principal Regulations 25 Amendments to definitions 26 Revocation of regulation 10—Notice and abandonment of right

to cool off 27 Substitution of regulation 11 2

11 Forms of notice to be displayed on used vehicle 28 Substitution of regulation 12 3

12 Form and notice of absence of warranty 39 Advertisements 310 Revocation of regulation 20—Amount of dealer charges to be

shown 511 New regulation 24A inserted 6

24A Display of Information—Agreements and warranties 612 Retention of records 613 Dealings book 614 Revocation of Form 4 of Schedule 1 715 Used motor car price and data sheet 7

Form 5—Used Motor Car Price and Data Sheet 716 Revocation of Forms 6 and 7 of Schedule 1 817 Statement of defects 818 Particulars, terms and conditions for sale of used motor car 9

SCHEDULE 3—Particulars, Terms and Conditions for Sale of Used Motor Car 9

19 Particulars for sale of new motor car 16SCHEDULE 4—Particulars for Sale of New Motor Car 16

20 Infringement offences and infringement penalties 17═══════════════

ENDNOTES 18

1

STATUTORY RULES 2014

S.R. No. 120/2014

Motor Car Traders Act 1986


The Governor in Council makes the following Regulations:

Dated: 9 September 2014

Responsible Minister:

HEIDI VICTORIAMinister for Consumer Affairs

CHIARA EDWARDSActing Clerk of the Executive Council

1 Objective

The objective of these Regulations is to amend the Motor Car Traders Regulations 2008 to—

(a) revoke Forms 4, 6 and 7; and

(b) amend Form 5; and

(c) prescribe general requirements regarding the display of text in forms, notices and advertisements; and

(d) prescribe the vehicle identification number as the standard vehicle identifier to be used across all prescribed forms and notices; and

(e) amend the prescribed particulars required to be included in the contract of sale of a motor car; and

1

(f) prescribe infringement offences and prescribe penalties for those offences.

2 Authorising provision

These Regulations are made under section 90 of the Motor Car Traders Act 1986.

3 Commencement

These Regulations come into operation on 3 November 2014.

4 Principal Regulations

In these Regulations, the Motor Car Traders Regulations 20081 are called the Principal Regulations.

5 Amendments to definitions

In regulation 5(1) of the Principal Regulations, the definition of motor cycle is revoked.

6 Revocation of regulation 10—Notice and abandonment of right to cool off

Regulation 10 of the Principal Regulations is revoked.

7 Substitution of regulation 11

For regulation 11 of the Principal Regulations substitute—

'11 Forms of notice to be displayed on used vehicle

(1) For the purposes of section 52(1) and (2)(g), the prescribed form of the notice and the prescribed particulars are set out in Form 5.

(2) A notice under subregulation (1) must be printed, typed or written in a clear and legible manner.

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(3) If a notice under subregulation (1) contains any advertisement, that advertisement must be placed within a border and set out under the heading "ADVERTISEMENT" which must be printed or typed as the most prominent text in the document.

(4) A notice under subregulation (1) must not be attached to, or incorporated with, any other document.'.

8 Substitution of regulation 12

For regulation 12 of the Principal Regulations substitute—

"12 Form and notice of absence of warranty

For the purpose of section 54(2C), the required form of notice is set out in Form 5.".

9 Advertisements

(1) For regulation 19(1) of the Principal Regulations substitute—

'(1) A motor car trader, or a servant or agent of the trader, who publishes or causes to be published an advertisement or statement in relation to the trader's business of trading in motor cars must include in the advertisement or statement the letters "LMCT" followed by the licence number of the motor car trader.

Penalty: 10 penalty units.'.

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"(2) If a motor car trader, or a servant or agent of the trader, publishes or causes to be published an advertisement offering a used motor car for sale, the trader, servant or agent must include the following information—

(a) the single price of the motor car, inclusive of all fees and duties;

(b) if the motor car is registered, the registration number;

(c) if the motor car is unregistered—

(i) the vehicle identification number; or

(ii) if the vehicle identification number is not reasonably ascertainable, any other number by which the motor car may be identified.

Penalty: 10 penalty units.".


"(4) If a person (other than a motor car trader or a servant or an agent of a motor car trader) publishes or causes to be published an advertisement offering a used motor car for sale in a newspaper generally circulating in the whole or any part of Victoria or in a motor car specialist magazine generally circulating in the whole of Victoria, the person must include the following information in the advertisement—

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(a) the single price of the motor car, inclusive of all fees and duties;

(b) if the motor car is registered, the registration number;

(c) if the motor car is unregistered—




(4) After regulation 19(7) of the Principal Regulations insert—

"(7A) A person who publishes or causes to be published an advertisement or statement referred to in subregulation (1), (2) or (4) must ensure that any text included in the advertisement or statement is printed, typed or written in a clear and legible manner.


10 Revocation of regulation 20—Amount of dealer charges to be shown

Regulation 20 of the Principal Regulations is revoked.

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11 New regulation 24A inserted

After regulation 24 of the Principal Regulations insert—

"24A Display of Information—Agreements and warranties

A motor car trader who enters into an agreement for the sale of a used motor car under section 41 or the sale of a new motor car under section 42 must ensure that any text included in the agreement is printed, typed or written in a clear and legible manner.


12 Retention of records

(1) In regulation 26 of the Principal Regulations, for "section 83A(3), the documents to be retained for at least 7 years" substitute "section 83A, the documents to be retained for at least 6 years".

(2) For regulation 26(f) of the Principal Regulations substitute—

"(f) Forms 2, 3, 5 and 8.".

13 Dealings book

In Form 2 of Schedule 1 to the Principal Regulations—

(a) omit "Year first registered"; and

(b) for "Vehicle identification/engine no on Registration Label or chassis number" substitute "Vehicle identification no (if the vehicle identification no is not available, other number capable of identifying the vehicle)".

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14 Revocation of Form 4 of Schedule 1

Form 4 of Schedule 1 to the Principal Regulations is revoked.

15 Used motor car price and data sheet

For Form 5 of Schedule 1 to the Principal Regulations substitute—

"FORM 5

Regulations 11 and 12

Motor Car Traders Act 1986

USED MOTOR CAR PRICE AND DATA SHEET

Warranty Information

Is this motor car automatically covered by a statutory warranty under section 54 of the Motor Car Traders Act 1986?

□ Yes

□ No

Please note

Motor cars that are less than 10 years old and that have been driven less than 160 000 km are automatically covered by a statutory warranty under section 54 of the Motor Car Traders Act 1986 for the first 3 months or 5000 km after delivery, whichever occurs first.

If this motor car is not automatically covered by the statutory warranty, the trader does not have any obligation under the Motor Car Traders Act 1986 to repair or make good any defects after delivery. However, the trader may have other obligations under other legislation including the Australian Consumer Law.

A. Name and business address of the current owner of the motor car.

B. 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

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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).

C. Except in the case of a motor car offered or displayed for sale at a public auction, the cash price of the motor car, a statement that the cash price does not include transfer fees or duty and a statement of whether the car is sold with registration or without registration.

D. The single price of the motor car, inclusive of all fees and duties.

E. Built date if it appears on the motor car.

F. Compliance date.

G. The model designation (if any) of the motor car.

H. Registration number (if any) of the motor car.

I. The vehicle identification number of the motor car.

J. If the vehicle identification number is not available, another number capable of identifying the motor car.

K. A statement as to whether the motor car is entered on the register of written-off vehicles or on an interstate written-off vehicles register within the meaning of the Road Safety Act 1986.

Signature of motor car trader:

LMCT No.:

Signature of Purchaser:

AFFIX TO RIGHT SIDE WINDOW (Rear where applicable)

(NOTE: On the sale of the motor car the purchaser must sign and be given a copy of this form under sections 52(6) and 83C(1) of the Motor Car Traders Act 1986 and regulation 28 of the Motor Car Traders Regulations 2008).

__________________".

16 Revocation of Forms 6 and 7 of Schedule 1

Forms 6 and 7 in Schedule 1 to the Principal Regulations are revoked.

17 Statement of defects

In Form 8 in Schedule 1 to the Principal Regulations, for "Engine number or serial number

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on Certificate of registration" substitute "Vehicle identification number, or if vehicle identification number is not reasonably ascertainable, any other number by which the motor car may be identified".

18 Particulars, terms and conditions for sale of used motor car

For Schedule 3 to the Principal Regulations substitute—

"SCHEDULE 3

Regulation 22(1)

PARTICULARS, TERMS AND CONDITIONS FOR SALE OF USED MOTOR CAR

IMPORTANT INFORMATION—YOUR RIGHT TO COOL OFF

Motor Car Traders Act 1986—section 43

Under section 43 of the Motor Car Traders Act 1986, if none of the exceptions listed below applies to you, you may end this contract within 3 clear business days of the day that you sign the contract.

To end the contract within this time, you must give the motor car trader or the motor car trader's agent written notice that you are terminating the contract.

If you end the contract in this way, you are entitled to a refund of all the money you paid EXCEPT $100 or 1 per cent of the purchase price (whichever is greater).

EXCEPTIONS—the 3-day cooling-off period does not apply if—

the vehicle being sold is a commercial vehicle; or

you are a motor car trader; or

you are a body corporate; or

you accept delivery of the vehicle within the cooling-off period.

IF YOU CHOOSE TO ACCEPT DELIVERY OF THIS VEHICLE WITHIN THE COOLING-OFF PERIOD, YOU WILL AUTOMATICALLY LOSE YOUR RIGHT TO COOL OFF

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A. Particulars

(1) The name of the motor car trader or, if an employee of the motor car trader negotiated the agreement on behalf of the motor car trader, the name of the employee.

(2) A description of the motor car sufficient to identify it.

(3) Whichever of the following is applicable—

(a) if the motor car is registered, the registration number; or

(b) if the motor car is unregistered—



(4) The price and any other charges to be paid and the time and manner in which the price and any other charges are to be paid and, where a motor car or other goods are to be accepted as part payment of the price or other charges, the amount agreed to be represented by the motor car or other goods.

(5) The amounts to be paid by the motor car trader or the purchaser to Roads Corporation for transfer fees and duties, and if applicable an amount to be paid by the motor car trader or the purchaser to Roads Corporation for registration.

(6) The distance travelled by the motor car as recorded on the instrument or device installed in the motor car for recording the distance travelled by the motor car either when the purchaser signs the agreement or at any earlier time at which the purchaser takes delivery of the motor car.

(7) Whether or not the motor car trader believes the distance so recorded to be true.

(8) The licence number of the motor car trader.

(9) The serial number of the agreement.

B. Warranty Information

Statutory Warranty under the Motor Car Traders Act 1986

Motor cars not more than 10 years old and that have been driven less than 160 000 km are automatically covered by a statutory warranty under section 54 of the Motor Car Traders Act 1986 .

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Is this motor car automatically covered by a statutory warranty under section 54 of the Motor Car Traders Act 1986?

□ Yes

□ No

If the motor car is covered by the statutory warranty

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 the motor car trader's 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 as to place the car in a reasonable condition having regard to its age.

The warranty period is whichever of the following periods is 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.

The benefits to the consumer given by this statutory warranty are in addition to other rights and remedies of the consumer under the Australian Consumer Law.

If the motor car is not automatically covered by the statutory warranty

The trader does not have any obligation under the Motor Car Traders Act 1986 to repair or make good any defects after delivery. However, the trader may have other obligations under other legislation including the Australian Consumer Law.

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Rights under the Australian Consumer Law

Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.

C. Terms and conditions

Subject to finance

1. (1) Where this agreement is subject to the purchaser obtaining finance, the agreement is conditional upon the purchaser obtaining finance approval—

(a) within the time stated in this agreement;

(b) of the amount stated in this agreement;

(c) from the credit provider named in this agreement (or from a similar type of credit provider);

(d) for the type of finance stated in this agreement;

(e) upon reasonable terms and conditions in the circumstances.

(2) The purchaser agrees to take all reasonable steps towards obtaining finance approval.

(3) If the purchaser does not obtain finance approval then either the purchaser or the seller may terminate this agreement by giving notice to the other party.

Transfer to credit provider

2. Where requested by the purchaser the seller must transfer title to the purchase vehicle to the purchaser's credit provider upon payment of the total purchase price to the seller.

Delays in delivery

3. (1) The seller must make every reasonable effort to make the purchase vehicle available for delivery on or before the delivery date stated in this agreement. Where delivery is delayed more than 14 days the purchaser may terminate this agreement by notifying the seller in writing, unless the delay is caused by the purchaser.

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(2) The purchaser must take delivery of the purchase vehicle within 7 days of being notified by the seller that the vehicle is ready for delivery. If the purchaser fails to take delivery within this time the seller may terminate the agreement by notice in writing.

Trade-in conditions

4. (1) Where the purchase involves a trade-in vehicle then the amount allowed for the trade-in (net trade-in allowance) must be deducted from the total purchase price. The net trade-in allowance will be the amount allowed on the trade-in vehicle less any amount to be paid by the seller to discharge the interest of any other person in the vehicle.

(2) The trade-in vehicle must be delivered to the seller no later than the date of delivery of the purchase vehicle. If the trade-in vehicle is delivered after this date or is not in substantially the same condition as at the date of this agreement then the net trade-in allowance may be adjusted by an amount equal to the change in the fair market value of the trade-in vehicle between the date of this agreement and the date of delivery to the seller.

(3) The purchaser's interest in the trade-in vehicle must pass to the seller—

(a) when the purchaser accepts delivery of the purchase vehicle; or

(b) when the purchaser has delivered the trade-in vehicle to the seller and the seller has paid the net trade-in allowance to the purchaser or acknowledged in writing that this amount has been credited towards the total purchase price—

whichever first occurs.

(4) The seller must not, without the prior written consent of the purchaser, sell or agree to sell the trade-in vehicle before delivery of the purchase vehicle to the purchaser.

(5) Where the amount allowed on the trade-in vehicle has been reduced by an amount to be paid by the seller to discharge the interest of any other person in the vehicle, the seller will pay this amount to the other person within 28 days of delivery of the trade-in vehicle to the seller.

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Termination

5. (1) Where this agreement is lawfully terminated by the seller due to a breach of this agreement by the purchaser then—

(a) the purchaser must forfeit the amount stated in this agreement to the seller provided that amount does not exceed 5 per cent of the total purchase price; and

(b) where an amount has been paid towards the purchase price and that amount exceeds the forfeitable amount then the seller must—

(i) refund to the purchaser so much of the amount paid that exceeds the forfeitable amount; and

(ii) return any trade-in vehicle to the purchaser; and

(c) where an amount has been paid towards the purchase price and that amount does not provide the seller with the forfeitable amount and a trade-in vehicle has been delivered to the seller then the trade-in vehicle may be forfeited to the seller and the purchaser credited with the net trade-in allowance. If this amount and any other amount paid by the purchaser exceeds the forfeitable amount then the excess must be refunded to the purchaser.

(2) Where this agreement is lawfully terminated by the purchaser due to a breach of this agreement by the seller then the seller must—

(a) refund to the purchaser all money paid by or on behalf of the purchaser; and

(b) return any trade-in vehicle to the purchaser.

(3) Where this agreement is lawfully terminated by either the purchaser or the seller due to clause l or for any reason other than a breach of this agreement then the seller must—

(a) refund to the purchaser all money paid by or on behalf of the purchaser; and

(b) return any trade-in vehicle to the purchaser.

(4) Where this agreement provides for the seller to return any trade-in vehicle to the purchaser but the seller has, with the prior written consent of the purchaser, sold or agreed to sell the trade-in vehicle then this agreement will be complied with if the seller pays to the purchaser—

(a) an amount equal to the net trade-in allowance; or

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(b) where the purchaser and seller have agreed on a value as the fair market value of the trade-in vehicle-that agreed value less any trade-in payout made or to be made by the seller.

(5) Where the seller returns any trade-in vehicle to the purchaser and the seller has carried out repairs on the vehicle with the consent of the purchaser then the seller is to be entitled to an amount equal to the reasonable cost of those repairs.

(6) Where either the purchaser or seller wishes to terminate this agreement in accordance with this clause they must give written notice to the other party of the decision to terminate.

(7) Nothing in this clause affects the rights and duties conferred by section 43 of the Motor Car Traders Act 1986 or regulation 11 of the Motor Car Traders Regulations 2008.

Non exclusion of statutory warranties and other rights

6. The benefits conferred by this agreement and by the seller's warranty, if any, are in addition to all other rights and remedies in respect of the purchase vehicle which the purchaser has under the Australian Consumer Law and any other Commonwealth, State and Territory laws.

Note: The parties to this agreement may include other conditions if those conditions do not reduce the rights given to either party by or under the Motor Car Traders Act 1986.

__________________".

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19 Particulars for sale of new motor car

For Schedule 4 to the Principal Regulations substitute—

'SCHEDULE 4

Regulation 22(2)

PARTICULARS FOR SALE OF NEW MOTOR CAR

IMPORTANT INFORMATION—YOUR RIGHT TO COOL OFF

Motor Car Traders Act 1986—section 43

Under section 43 of the Motor Car Traders Act 1986, if none of the exceptions listed below applies to you, you may end this contract within 3 clear business days of the day that you sign the contract.

To end the contract within this time, you must give the motor car trader or the motor car trader's agent written notice that you are terminating the contract.

If you end the contract in this way, you are entitled to a refund of all the money you paid EXCEPT—

$400 or 2 per cent of the purchase price (whichever is greater) where this is not an off-trade premises sale; or

$100 or 1 per cent of the purchase price (whichever is greater) where this is an off-trade premises sale. An "off-trade-premises" sale is one in which you agree to purchase the car while you are at home or at your workplace and you did not ask for the agreement to be signed at your home or workplace.

EXCEPTIONS—the 3-day cooling-off period does not apply if—

the vehicle being sold is a commercial vehicle; or

you are a motor car trader; or

you are a body corporate; or

you accept delivery of the vehicle within the cooling-off period.

IF YOU CHOOSE TO ACCEPT DELIVERY OF THIS VEHICLE WITHIN THE COOLING-OFF PERIOD, YOU WILL AUTOMATICALLY LOSE YOUR RIGHT TO COOL OFF

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Particulars

(1) The name of the motor car trader or, if an employee of the motor car trader negotiated the agreement on behalf of the motor car trader, the name of the employee.

(2) A description of the motor car sufficient to identify it.

(3) The vehicle identification number; or

if the vehicle identification number is not reasonably ascertainable, any other number by which the motor car may be identified.

(4) The price and any other charges to be paid and the time and manner in which the price and any other charges are to be paid and, where a motor car or other goods are to be accepted as part payment of the price or other charges, the amount agreed to be represented by the motor car or other goods.

(5) Where a motor car is to be accepted as part payment of the price or other charges and where the amount allowed on this trade-in vehicle has been reduced by an amount to be paid by the trader to discharge the interest of any other person in the vehicle, the number of days after delivery of the trade-in vehicle to the trader within which the trader will pay this amount to the other person.

(6) The licence number of the motor car trader.

(7) The serial number of the agreement.

__________________'.

20 Infringement offences and infringement penalties

In Schedule 5 to the Principal Regulations—

(a) omit "section 43(1B) 1 penalty unit"; and

(b) after "regulation 19(2) 1 penalty unit" insert "regulation 19(7A) 1 penalty unit"; and

(c) after "regulation 21(2) 1 penalty unit" insert "regulation 24A 1 penalty unit".═══════════════

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ENDNOTES

Endnotes S.R. No. 120/2014


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1 Reg. 4: S.R. No. 144/2008 amended by S.R. Nos 40/2010 and 101/2010.

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