Motor Car Traders Act 1986

82B Verification of details supplied to the Authority 134

82C Extended time for prosecutions 134

82CA Who may bring proceedings for offences? 135

Division 2—Infringement notices 135

82D Power to serve a notice 135

82E Form of notice 136

82H Further proceedings concerning infringement notices 136

Division 3—Application of Fair Trading Act 1999 137

82I Application of Australian Consumer Law and Fair Trading Act 2012 137

Part 6—Miscellaneous 139

83 Failure to disclose 139

83A Retention of documents 139

83B Offence to destroy documents required by the Act 140

83C Motor car traders must supply copies of agreements etc. 140

83D Complaints concerning motor car trader are privileged 140

84 Offence to place certain advertisements 141

84A False or misleading statements 141

84B Production of records 143

85 Corporations 143

85A Simplified procedure concerning proof that person traded in motor cars 144

86 Service of notices 145

86A Extension of time 146

87 Certificates 146

87A Waiver or refund of fees 146

88 Contracting out prohibited 147

88A Agreement not illegal etc. by reason of offence 147

88B Agreement voidable if section 37, 38, 41 or 42 breached 148

89 Other rights and remedies 149

89A Delegation by Director 149

90 Regulations 149

Part 8—Transitional provisions and consequential amendments 153

120 Subrogation 153

121 Transitional—Motor Car Traders Amendment Act 2008 153

122 Further transitional—Motor Car Traders Amendment Act 2008 153

Endnotes 155

1 General information 155

2 Table of Amendments 157

3 Explanatory details 164

Version No. 085

Motor Car Traders Act 1986

No. 104 of 1986

Version incorporating amendments as at

The Parliament of Victoria enacts as follows:

Part 1—Preliminary

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

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—

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

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

S. 3(1) def. of Chairperson inserted by No. 6/1989 s. 12(a), substituted by Nos 52/1998 s. 140(b), 12/2015 s. 11.

Chairperson means the Chairperson of the Committee and includes the Deputy Chairperson when exercising the powers and performing the functions of the Chairperson pursuant to section 61(5);

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;

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

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

(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;

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

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

S. 3(1) def. of Consumer Act
inserted by No. 35/2000 s. 47(a), amended by No. 21/2012 s. 239(Sch. 6 item 28.1).

Consumer Act has the same meaning as it has in the Australian Consumer Law and Fair Trading Act 2012;

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).

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

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)).

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

S. 3(1) def. of Director substituted by Nos 52/1998 s. 140(e), 17/1999 s. 10(a), amended by No. 21/2012 s. 239(Sch. 6 item 28.2).

Director means the Director within the meaning of the Australian Consumer Law and Fair Trading Act 2012;

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).

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);

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;

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)).

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);

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

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;

(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;

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(1) def. of inspector inserted by No. 17/1999 s. 10(b), amended by No. 21/2012 s. 239(Sch. 6 item 28.3).

inspector means an inspector appointed under the Australian Consumer Law and Fair Trading Act 2012;

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

licence means a motor car trader's licence;

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

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 occupier inserted by No. 17/1999 s. 10(b).

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;

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).

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;

S. 3(1) def. of police officer inserted by No. 37/2014 s. 10(Sch. 114.1).

police officer has the same meaning as in the Victoria Police Act 2013;

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

prescribed means prescribed by this Act or the regulations;

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

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

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

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 Registrar substituted by No. 52/1998 s. 140(f).

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

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

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;

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

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;

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

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

this Act includes the regulations;

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

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

(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—

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

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

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

(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 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.

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

(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).

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

(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.

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

(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.

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

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

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

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).

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

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

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.

1. 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.

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

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;

(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.

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

(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

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

(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.

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

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

(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

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

(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.

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

(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.

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

(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

(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.

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

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.

11 Notice of application

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

(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.

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

(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.

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

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

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

(4) A report may include recommendations.

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.

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

(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.

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

12 Consideration of application

(1) In considering an application for a licence, the Authority may—

(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.

S. 12A inserted by No. 8/2003 s. 62.

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

(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

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

(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).

S. 13(2) substituted by No. 52/1998 s. 146(1).

(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

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

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

(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

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

(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

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

(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

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

(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

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

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

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

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

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

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

(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

S. 13(4)(k) inserted by No. 74/1996 s. 7(1)(b), amended by No. 13/2019 s. 221(Sch. 1 item 33).

(k) the applicant is a represented person within the meaning of the Guardianship and Administration Act 2019; or

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

(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

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

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

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

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

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

(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—

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).

(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

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).

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

(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

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

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

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

(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

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

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

(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

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

(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;

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

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

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

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

S. 13(6)(l)(i) amended by No. 13/2019 s. 221(Sch. 1 item 33).

(i) is a represented person within the meaning of the Guardianship and Administration Act 2019; or

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

(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

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

(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

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

(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);

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

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

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(9) substituted by No. 52/1998 s. 146(9).

(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.

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

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

S. 13(10) substituted by No. 52/1998 s. 146(11).

(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.

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

(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. 13A inserted by No. 74/1996 s. 8.

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—

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

(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—

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

(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 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.

14 Conditions of licence

S. 14(1) substituted by No. 74/1996 s. 9(1).

(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.

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

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

S. 14(2A) inserted by No. 4/2008 s. 8(1).

(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.

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

(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

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

(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.

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

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

S. 15A inserted by No. 74/1996 s. 10.

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

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

(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.

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

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

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

S. 16(4) substituted by No. 52/1998 s. 148(3).

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

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

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

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

(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—

(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.

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

17 Name under which licensed motor car trader may operate

S. 17(1) amended by Nos 52/1998 s. 149(1), 79/2011 s. 34.

(1) Subject to the Business Names Registration Act 2011 of the Commonwealth, 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.

(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).

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

(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—

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

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

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

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

(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.

S. 18(2) substituted by No. 52/1998 s. 150(3).

(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).

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

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

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

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

19A Change in directors of bodies corporate

If a licence is granted to a body corporate and at any time—

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

(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.

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

20 Licensee to give notice of certain changes

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

(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.

1. 5 penalty units.

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

(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.

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

(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.

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

21 Licences to be returned

If a licensee—

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

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

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

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

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

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

(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.

22 Register to be kept

S. 22(1) substituted by No. 8/2003 s. 64(1).

(1) The Registrar must keep a register of licensed motor car traders open for public inspection in the form determined by the Registrar.

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

(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.

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

(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.

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

(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;

(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;

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

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

(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.

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

(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.

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

(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.

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

23 Annual licence fee and statement

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

(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.

(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.

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

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.

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

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.

(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

S. 25(1) amended by Nos 74/1996 s. 51(c), 17/1999 s. 11, 37/2014 s. 10(Sch. item 114.2).

(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 police officer or an inspector.

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

(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

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

(1) Subject to subsection (2), a licensee may at any time by notice in writing to the Authority, surrender the licence.

S. 27(2) substituted by No. 52/1998 s. 156(2).

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

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

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

28 Automatic cancellation of licence on bankruptcy etc.

(1) A licence is automatically cancelled if the licensee—

(a) becomes an insolvent under administration; or

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

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

S. 28(1)(c) amended by No. 13/2019 s. 221(Sch. 1 item 33).

(c) becomes a represented person within the meaning of the Guardianship and Administration Act 2019.

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

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

(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—

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

(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

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

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

(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.

S. 29 substituted by No. 74/1996 s. 15.

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.

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

(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.

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

(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.

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

(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(2B) inserted by No. 4/2008 s. 9(2).

(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.

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

(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.

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

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

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

(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.

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

(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.

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

(5) In this section—

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.

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

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

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

(1) This section applies to a person—

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

(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.

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

(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.

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

(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.

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

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

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

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

(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.

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

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

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

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

(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.

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

(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.

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

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

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

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

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

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

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

(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.

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

(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.

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

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

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

(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.

(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.

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

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.

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

(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.

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

(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

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

30 Disciplinary action

S. 30(1) substituted by No. 52/1998 s. 158(1).

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

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

(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—

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

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

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

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

S. 30(5) inserted by No. 12/2015 s. 12.

(5) A reference to a licensee in this section includes a reference to any person who was a licensee at the time any ground referred to in subsection (2) existed or was alleged to exist, even if the person is not a licensee at the time the action under section 31 is taken.

S. 30A inserted by No. 74/1996 s. 16.

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

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

(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.

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

(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.

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

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

(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.

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

(5) The Tribunal may—

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

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

(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).

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

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

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

31 Determination of disciplinary measures by Tribunal

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

(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;

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

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

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

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

(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;

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

(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.

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

(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.

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

(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.

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

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

S. 31(2C) inserted by No. 12/2015 s. 13.

(2C) A reference to a licensee in this section includes a reference to any person who was a licensee at the time any ground referred to in section 30(2) existed or was alleged to exist, even if the person is not a licensee at the time the action under this section is taken.

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

(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.

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

(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.

S. 31A inserted by No. 74/1996 s. 18.

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.

S. 31B inserted by No. 74/1996 s. 18.

31B Suspended and cancelled licences must be returned

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

(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.

Division 4—Miscellaneous

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

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.

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.

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;

S. 33(1)(c) amended by No. 13/2019 s. 221(Sch. 1 item 33).

(c) if the person becomes a represented person within the meaning of the Guardianship and Administration Act 2019, the guardian or administrator of the person or any person nominated by the guardian or administrator;

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

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

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

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.

Part 3—Conduct of business

35 Dealings book

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

(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.

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

(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.

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

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

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

(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.

(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.

1. 5 penalty units.

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

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

(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.

S. 35A inserted by No. 74/1996 s. 23.

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);

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

(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);

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

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

(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).

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

(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.

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

(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);

(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).

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

(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.

S. 35A(5) inserted by No. 4/2008 s. 12(4).

(5) In this section—

S. 35A(5) def. of customer service capacity substituted by No. 50/2014 s. 38.

customer service capacity means any position that requires the holder of the position to buy, sell or exchange motor cars, or to seek to buy, sell or exchange motor cars, on behalf of the motor car trader;

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. 35B inserted by No. 74/1996 s. 23.

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.

S. 36 substituted by No. 74/1996 s. 24.

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. 37 substituted by No. 4/2008 s. 13.

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

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

(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.

1. 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.

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

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

(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.

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

(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.

1. 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

(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.

(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.

(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.

S. 42A inserted by No. 74/1996 s. 26.

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

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

(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

S. 42A(1)(b) amended by Nos 49/2019 s. 186(Sch. 4 item 30.1), 25/2025 s. 106(Sch. 1 item 29.1).

(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 Secretary to the Department of Transport and Planning, 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.

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

(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.

(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

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

(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.

S. 43(1A) inserted by No. 74/1996 s. 27(2).

(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.

S. 43(1B)(1C) inserted by No. 4/2008 s. 14(2), repealed by No. 50/2014 s. 39.

S. 43(2) amended by No. 4/2008 s. 14(3), substituted by No. 50/2014 s. 39.

(2) Subsection (1) ceases to apply on acceptance by a purchaser of delivery of the motor car within the period during which the purchaser may terminate the agreement.

S. 43(2A) inserted by No. 4/2008 s. 14(4), repealed by No. 50/2014 s. 39.

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

(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.

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

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

S. 43(4)(a) substituted by No. 4/2008 s. 14(5).

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

(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

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

(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

(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.

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

(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.

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

(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.

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

(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

(b) the workplace of the purchaser—

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

S. 43A inserted by No. 11/2010 s. 54.

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.

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

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

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

(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

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

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

S. 45(2) amended by Nos 4/1989 s. 8(4)(b), 74/1996 s. 29(1)(b), 52/1998 s. 163.

(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).

S. 45(3) amended by Nos 57/1989 s. 3(Sch. item 137.1), 4/1989 s. 8(4)(c), 52/1998 s. 163.

(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.

S. 45(5) inserted by No. 74/1996 s. 29(2).

(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.

S. 45(6) inserted by No. 74/1996 s. 29(2).

(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. 46 repealed by No. 4/1989 s. 8(4)(d).

S. 47 amended by No. 52/1998 s. 163.

47 Powers of Magistrates' Court and Tribunal

S. 47(1) amended by Nos 57/1989 s. 3(Sch. item 137.2), 4/1989 s. 8(4)(e), 52/1998 s. 163.

(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.

S. 47(2) amended by No. 4/1989 s. 8(4)(f).

(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.

S. 47(3) amended by No. 4/1989 s. 8(4)(g).

(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)—

(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;

S. 47(3)(d) amended by No. 41/1995 s. 62(Sch. 1 item 5.2).

(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;

S. 47(3)(e) amended by No. 41/1995 s. 62(Sch. 1 item 5.3).

(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).

(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.

S. 48 amended by No. 15/1987 s. 31(4)(a)(i).

48 Cancellation of security interest by motor car trader

S. 48(1) amended by No. 74/1996 s. 50(f).

(1) A motor car trader must not sell, exchange or otherwise dispose of a motor car without first procuring the cancellation of—

S. 48(1)(a) amended by No. 15/1987 s. 31(4)(a)(iii), substituted by No. 74/2010 s. 37(Sch. item 3.1).

(a) any security interest in the motor car (including a motor car that is registered under the law of another State or Territory) that is registered on the Personal Property Securities Register established under Chapter 5 of the Personal Property Securities Act 2009 of the Commonwealth; and

S. 48(1)(aa) inserted by No. 15/1987 s. 31(4)(a)(ii), repealed by No. 74/2010 s. 37(Sch. item 3.2).

(b) any other security interest in the motor car created by the motor car trader or of which the trader has notice.

1. 100 penalty units or imprisonment for 12 months.

S. 48(2) inserted by No. 15/1987 s. 31(4)(a)(iv).

(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.

S. 48(3) inserted by No. 13/2017 s. 18.

(3) Subsection (1) does not apply if a motor car trader—

(a) has been engaged by the Sheriff to sell, exchange, or otherwise dispose of a motor car on behalf of the Sheriff; and

(b) sells, exchanges or otherwise disposes of that motor car subject to a security interest that is registered in favour of the Sheriff on the Personal Property Securities Register established under Chapter 5 of the Personal Property Securities Act 2009 of the Commonwealth.

S. 49 amended by Nos 41/1995 s. 62(Sch. 1 item 5.4), 52/1998 s. 164, 11/2010 s. 55.

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

(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.

S. 50A inserted by No. 74/1996 s. 30.

50A Offence to aid or abet an unlicensed trader

S. 50A(1) amended by No. 4/2008 s. 15.

(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.

(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.

S. 50A(4) amended by No. 37/2014 s. 10(Sch. item 114.2).

(4) The Director, an inspector or a police officer 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

S. 50A(6)(b) amended by No. 68/2009 s. 97(Sch. item 88.1).

(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.

(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.

S. 50B inserted by No. 74/1996 s. 30.

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.

Pt 3A (Heading and ss 50C–50J) inserted by No. 4/2008 s. 16.

Part 3A—Sale of motor cars by auction

S. 50C inserted by No. 4/2008 s. 16.

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.

S. 50D inserted by No. 4/2008 s. 16.

50D Dummy bidding prohibited

(1) An owner of a motor car must not make a bid at an auction of the motor car.

(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.

(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.

S. 50E inserted by No. 4/2008 s. 16.

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.

S. 50F inserted by No. 4/2008 s. 16.

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.

S. 50G inserted by No. 4/2008 s. 16.

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—

(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.

S. 50H inserted by No. 4/2008 s. 16.

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.

S. 50I inserted by No. 4/2008 s. 16.

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.

S. 50J inserted by No. 4/2008 s. 16.

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—

(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

S. 50J(2)(b) amended by No. 37/2014 s. 10(Sch. item 114.2).

(b) in the case of a specified vehicle, on request by a police officer.

Part 4—Sale of used motor cars

51 Definitions

In this Part—

S. 51 def. of cash price substituted by No. 4/2008 s. 17.

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.

52 Particulars to be displayed

S. 52(1) amended by No. 74/1996 s. 50(b).

(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—

S. 52(2)(a) substituted by No. 4/2008 s. 18(1).

(a) the name and business address of the current owner of the motor car;

S. 52(2)(b) amended by No. 6/1989 s. 15, substituted by No. 4/2008 s. 18(1), repealed by No. 50/2014 s. 40.

S. 52(2)(ba) inserted by No. 4/2008 s. 18(1), repealed by No. 50/2014 s. 40.

(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;

S. 52(2)(e) repealed by No. 12/2015 s. 14.

(f) the model designation (if any) of the motor car;

(g) such other particulars as are prescribed.

S. 52(3) amended by No. 52/1998 s. 165.

(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.

S. 52(6) amended by No. 74/1996 s. 50(b).

(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(7) inserted by No. 4/2008 s. 18(2).

(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).

S. 53 repealed by No. 74/1996 s. 51(a), new s. 53 inserted by No. 4/2008 s. 19, repealed by No. 50/2014 s. 41.

54 Obligations of motor car trader

S. 54(1) substituted by No. 74/1996 s. 31(1).

(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.

S. 54(2) substituted by No. 74/1996 s. 31(1).

(2) The warranty set out in subsection (2A) is a part of the sale contract.

S. 54(2A) inserted by No. 74/1996 s. 31(1).

(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 as to place the car in a reasonable condition having regard to its age.

S. 54(2B) inserted by No. 74/1996 s. 31(1).

(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.

S. 54(2C) inserted by No. 74/1996 s. 31(1).

(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.

S. 54(3) amended by No. 74/1996 s. 31(2)(a).

(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.

S. 54(4) amended by No. 74/1996 s. 31(2)(b).

(4) The warranty imposed by this section does not apply to or in relation to any defect—

S. 54(4)(a) substituted by No. 74/1996 s. 31(2)(c).

(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

(d) occurring in the tyres, battery or any prescribed accessory of the motor car; or

S. 54(4)(e) repealed by No. 74/1996 s. 31(2)(d).

(5) This section does not apply to or in relation to—

(a) the sale of any commercial vehicle; or

S. 54(5)(b) substituted by No. 74/1996 s. 31(2)(e).

(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.

S. 54(7) substituted by Nos 74/1996 s. 31(3), 84/2001 s. 9(3).

(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(8) inserted by No. 74/1996 s. 31(3).

(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.

S. 54(9) inserted by No. 74/1996 s. 31(3).

(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.

S. 54(10) inserted by No. 74/1996 s. 31(3).

(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.

S. 54(11) inserted by No. 74/1996 s. 31(3).

(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. 55(2) amended by No. 74/1996 s. 31(4).

(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).

Pt 5 (Heading) substituted by No. 4/2008 s. 20(1).

Part 5—Motor Car Traders Claims Committee and Guarantee Fund

Pt 5 Div. 1 (Heading) substituted by No. 4/2008 s. 20(2).

Division 1—Motor Car Traders Claims Committee

S. 57 (Heading) inserted by No. 4/2008 s. 20(3).

57 Motor Car Traders Claims Committee

S. 57(1) amended by No. 4/2008 s. 20(4).

(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—

S. 57(1)(a) substituted by No. 18/2005 s. 18(Sch. 1 item 71), amended by No. 17/2014 s. 160(Sch. 2 item 65).

(a) one, who is the chairperson, must be an Australian lawyer 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.

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).

(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

(b) the member is incompetent; or

(c) the member has misbehaved.

S. 61 substituted by No. 12/2015 s. 15.

61 Deputy Chairperson

(1) The Governor in Council may appoint a person as Deputy Chairperson of the Motor Car Traders Claim Committee.

(2) A person appointed under subsection (1)—

(a) must have the qualifications specified in section 57(1)(a); and

(b) must not be a member of the Committee appointed under section 57.

(3) The Deputy Chairperson—

(a) holds office for the period, and on the terms and conditions, specified in the instrument of appointment; and

(b) is eligible for re-appointment.

(4) The Public Administration Act 2004 (other than Part 3) applies to the Deputy Chairperson.

(5) The Deputy Chairperson has and may exercise all the powers and perform all the functions of the Chairperson—

(a) during a vacancy in the office of the Chairperson; or

(b) during a period or all periods when the Chairperson—

(i) is absent from Victoria; or

(ii) for any other reason, is unable to perform the duties of the Chairperson.

(6) At all other times, the Deputy Chairperson has no powers or functions in relation to the Committee.

(7) When exercising the powers and performing the functions of the Chairperson, the Deputy Chairperson must be paid the travelling and other allowances that would be payable if the Deputy Chairperson were a member of the Committee.

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).

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.

S. 63 substituted by No. 12/2015 s. 16.

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) a vacancy in the office of Chairperson or of any other member; or

(b) a defect or irregularity in or in connection with the appointment of a member; or

(c) in the case of the Deputy Chairperson exercising the powers and performing the functions of the Chairperson—

(i) a defect or irregularity in or in connection with the appointment of the Deputy Chairperson; or

(ii) the occasion for the exercise of those powers and the performance of those functions had not arisen or had ceased.

Ss 64, 65 repealed by No. 52/1998 s. 166.

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.

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.

S. 68 repealed by No. 52/1998 s. 166, new s. 68 inserted by No. 4/2008 s. 21.

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.

S. 69 repealed by No. 52/1998 s. 166, new s. 69 inserted by No. 4/2008 s. 21.

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.

(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

S. 69(3)(c) amended by Nos 49/2019 s. 186(Sch. 4 item 30.2), 25/2025 s. 106(Sch. 1 item 29.2).

(c) the Secretary to the Department of Transport and Planning; or

(d) the Chief Commissioner of Police.

S. 70 amended by No. 6/1989 s. 16(1)(2), substituted by No. 52/1998 s. 167.

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

S. 71(1) substituted by Nos 6/1989 s. 17, 4/2008 s. 22(1).

(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

(b) on payment to the Secretary of the prescribed fee (if any).

(2) The Committee must comply with a request made under subsection (1).

S. 71(3) inserted by No. 4/2008 s. 22(2).

(3) The Committee may give a copy of a determination of the Committee to any person on request.

Ss 71A, 71B inserted by No. 6/1989 s. 18,
repealed by No. 52/1998 s. 166.

S. 72 repealed by No. 52/1998 s. 166, new s. 72 inserted by No. 4/2008 s. 23.

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. 73 amended by No. 52/1998 s. 168.

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

S. 74(1) substituted by No. 52/1998 s. 169(1).

(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.

S. 74(3) amended by No. 6/1989 s. 19(a)(b).

(3) There shall be paid out of the Fund—

S. 74(3)(a) inserted by No. 6/1989 s. 19(a).

(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 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

S. 74(3)(b) inserted by No. 6/1989 s. 19(b).

(b) any refund of fees paid under this Act.

S. 74(4) substituted by No. 52/1998 s. 169(2).

(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

S. 76(1) amended by Nos 8/2003 s. 70(1), 4/2008 s. 24(1), 12/2015 s. 17.

(1) Any person (other than a person specified in subsection (4A)) 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—

S. 76(1)(a) amended by Nos 52/1998 s. 170(1), 4/2008 s. 24(2)(3).

(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

S. 76(1)(b) amended by No. 4/2008 s. 24(4).

(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. 76(1)(b)(i) inserted by No. 4/2008 s. 24(4).

(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

S. 76(1)(b)(ii) inserted by No. 4/2008 s. 24(4), amended by No. 37/2014 s. 10(Sch. item 114.2).

(ii) the motor car being a stolen motor car or having been seized by a police officer 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

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), 49/2019 s. 186(Sch. 4 item 30.3), 25/2025 s. 106(Sch. 1 item 29.3).

(d) loss has been incurred from a failure of a motor car trader to pay transfer fees or registration fees to the Secretary to the Department of Transport and Planning 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

S. 76(1)(e) inserted by No. 74/1996 s. 32(1).

(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

S. 76(1)(f) inserted by No. 74/1996 s. 32(1), amended by No. 4/2008 s. 24(6).

(f) loss has been incurred from a failure of a motor car trader to satisfy—

(i) a court order; or

S. 76(1)(f)(ii) amended by No. 52/1998 s. 170(2)(a).

(ii) an order of the Tribunal; or

S. 76(1)(f)(iii) amended by No. 52/1998 s. 170(2)(b).

(iii) an order made by the Tribunal under section 31(1)(g)—

arising from the motor car trader's trading in motor cars; or

S. 76(1)(g) inserted by No. 4/2008 s. 24(7).

(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

S. 76(1)(h) inserted by No. 4/2008 s. 24(7).

(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.

S. 76(1A) inserted by No. 8/2003 s. 70(2).

(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.

S. 76(1B) inserted by No. 8/2003 s. 70(2).

(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.

S. 76(2) substituted by No. 15/1987 s. 31(4)(b), amended by Nos 4/2008 s. 24(8), 74/2010 s. 37(Sch. item 3.3).

(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 that is registered on the Personal Property Securities Register established under Chapter 5 of the Personal Property Securities Act 2009 of the Commonwealth before the motor car trader acquired or took possession of the motor car.

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).

(4) If—

S. 76(4)(a) amended by Nos 4/2008 s. 24(10)(a), 74/2010 s. 37(Sch. item 3.4), 70/2013 s. 3(Sch. 1 item 37).

(a) a special trader who is a financier has registered a security interest in a motor car on the Personal Property Securities Register established under Chapter 5 of the Personal Property Securities Act 2009 of the Commonwealth; 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

S. 76(4)(d) amended by No. 4/2008 s. 24(10)(b).

(d) the motor car trader fails to remit the agreed amount to the special trader—

S. 76(4)(e) repealed by No. 4/2008 s. 24(10)(c).

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(4A) inserted by No. 4/2008 s. 24(11).

(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;

S. 76(4A)(e) substituted by No. 11/2010 s. 56.

(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.

S. 76(4B) inserted by No. 4/2008 s. 24(11).

(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

S. 76(4B)(c) amended by No. 43/2012 s. 3(Sch. item 31).

(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.

S. 76(4C) inserted by No. 4/2008 s. 24(11).

(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 management of, a partnership or body corporate that is a licensed motor car trader.

S. 76(5) inserted by No. 74/1996 s. 32(2).

(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.

S. 76(6) inserted by No. 17/2007 s. 35.

(6) In this section loss means actual pecuniary loss but does not include future loss or consequential loss.

S. 76(7) inserted by No. 17/2007 s. 35.

(7) The Committee may require an applicant to seek to recover a loss by other means of legal redress before allowing a claim.