Part 4Dealer's duty to repair second-hand vehicles

Part 4—Dealer's duty to repair second-hand vehicles 23—Duty to repair (1) Subject to this Act, on the sale of a second-hand vehicle by a dealer, the dealer is under a duty to repair any defect that is present in the vehicle or that appears in the vehicle after the sale. (2) A dealer must, in order to discharge the duty imposed under this section, carry out the repairs in a manner that conforms to accepted trade standards. (3) This section does not apply to— (a) the sale of a vehicle to a dealer; or (b) the sale of a vehicle on behalf of a person who is not a dealer, if the sale— (i) is by auction; or (ii) is negotiated by the auctioneer immediately after the conduct of an auction for the sale of the vehicle; or (d) the sale of a motorcycle. (4) This section does not apply to a defect that appears— (a) in the case of a vehicle sold at a price that is within the prescribed range— (i) if the vehicle has been driven 3 000 kilometres or more after the sale; or (ii) if more than two months have elapsed from the date of the sale, whichever occurs first; (b) in the case of a vehicle sold at a price that is above the prescribed range— (i) if the vehicle has been driven 5 000 kilometres or more after the sale; or (ii) if three months or more have elapsed from the date of the sale, whichever occurs first. (5) If a vehicle has a defect that a dealer is under a duty to repair under this section, the reference in subsection (4)(a)(ii) or (4)(b)(ii) (as the case may be) to a period after the sale will, in relation to the sale of that vehicle, be read as a reference to that period extended— (a) if the vehicle is delivered to the dealer under this Act and the dealer carries out the duty to repair the defect—by a period equal to that elapsing between the time the vehicle was delivered to the dealer and the time the dealer completed the repairs and made the vehicle available for recovery by the purchaser; or (b) in any other case—by a period determined by the Commissioner, on the application of the purchaser, as representing the period for which the purchaser did not have the use of the vehicle because of the defect (as distinct from any period for which the purchaser did not have the use of the vehicle because of the purchaser's own failure to act expeditiously). (6) This section does not apply to— (a) a defect resulting from damage deliberately caused to the vehicle after the sale; or (b) a defect arising from misuse of the vehicle after the sale; or (c) a defect arising from any collision, impact or accident that occurs after the sale; or (d) a defect in the paintwork or upholstery of a vehicle that was reasonably apparent at the time of sale; or (e) a vehicle that had been in the purchaser's possession for a period of three months or more before the date of the sale. (7) This section does not apply to— (a) a defect in a vehicle sold at a price that is below the prescribed amount; or (ab) a defect in a vehicle sold— (i) if the year of first registration of the vehicle was more than 15 years before the year in which the sale was made; or (ii) if the vehicle had been driven more than 200 000 kilometres before the sale; or (b) a defect in the tyres of a vehicle; or (ba) a defect in the battery of a vehicle that is not a prescribed electric vehicle or prescribed hybrid vehicle, unless— (c) the defect is present at the time the purchaser takes possession of the vehicle; and (d) because of the defect— (i) the vehicle does not comply with the Road Traffic Act 1961, the Heavy Vehicle National Law (South Australia) or the Heavy Vehicle National Regulations (South Australia); or (ii) the vehicle cannot be driven safely or cannot be driven at all. (8) Except as provided by the regulations, this section does not apply to a defect to which this section is declared by the regulations not to apply. (9) If a second-hand vehicle is sold by a dealer on behalf of another dealer, the duty imposed by this section must be discharged by that other dealer. (10) In this section— defect in relation to a second-hand vehicle means a defect in the vehicle— (a) because of which the vehicle does not comply with the Road Traffic Act 1961, the Heavy Vehicle National Law (South Australia) or the Heavy Vehicle National Regulations (South Australia); or (b) because of which the vehicle cannot be driven safely or cannot be driven at all; or (c) because of which the part of the vehicle affected by the defect is not in proper working condition; or (d) that would not reasonably be expected to be present in the vehicle having regard to— (i) the apparent condition of the vehicle at the time of its sale; and (ii) a representation by the dealer prior to the sale as to the condition of the vehicle; Heavy Vehicle National Law (South Australia) has the same meaning as in the Heavy Vehicle National Law (South Australia) Act 2013; Heavy Vehicle National Regulations (South Australia) has the same meaning as in the Heavy Vehicle National Law (South Australia) Act 2013; prescribed amount means— (a) $3 000; or (b) if a different amount is prescribed for the purposes of this definition—the amount so prescribed; prescribed range means— (a) from and including $3 001 up to and including $6 000; or (b) if a different range is prescribed for the purposes of this definition—the range so prescribed. 23A—No duty to repair where defect disclosed prior to sale (1) Despite section 23, on the sale of a second‑hand vehicle by a dealer, the dealer is under no duty to repair a defect that is present in the vehicle prior to the sale if— (a) the defect does not, or could not reasonably be expected to, affect the ability of the vehicle to be driven safely on a road; and (b) the dealer, in accordance with any requirements set out in the regulations, gives a notice in the prescribed form to the purchaser— (i) identifying the defect; and (ii) stating that there is no duty to repair under Part 4 in relation to the defect; and (c) the purchaser acknowledges receipt of the information referred to in paragraph (b) in the prescribed form. (2) For the purposes of this section and any regulations made for the purposes of this section, in the case of a sale of a second‑hand vehicle by auction, a reference to a dealer will be taken to include a reference to the auctioneer conducting the auction. 24—Enforcement of duty to repair (1) If a dealer is under a duty under this Part to repair a defect in a second-hand vehicle, the purchaser must, if he or she requires the dealer to discharge the duty, deliver the vehicle to the dealer for that purpose during ordinary business hours— (a) at a place agreed on by the dealer and the purchaser; or (b) if no place has been so agreed on—any business premises of the dealer, and afford the dealer a reasonable opportunity to repair the defect. (2) If— (a) the purchaser delivers the vehicle to the dealer as required under this section, but the dealer refuses to discharge the duty to repair or fails to discharge the duty to repair the defect expeditiously; or (b) the purchaser makes reasonable efforts to deliver the vehicle as required under this section, but is unable to do so by reason of the dealer's refusal to accept delivery of the vehicle or the absence of the dealer or a person acting on behalf of the dealer, the purchaser may apply to the Commissioner for a conference to be convened under this section for the purpose of attempting to resolve the matter by conciliation. (3) On an application to the Commissioner, the Commissioner must, unless satisfied that in the circumstances of the case it is not appropriate to convene a conference, require the purchaser and the dealer to attend a conference to be presided over by the Commissioner at a time and place fixed by the Commissioner by notice in writing. (4) If agreement is reached at a conference under this section, the agreement must be recorded in a written instrument signed by the parties to the agreement and the Commissioner and a copy of the instrument given to each of the parties. (5) If, on application by the purchaser— (a) the Commissioner determines that it is not appropriate to convene a conference; or (b) a conference is convened but— (i) the dealer fails to attend the conference; or (ii) the matter in issue is not resolved by agreement; or (iii) the dealer fails to carry out the dealer's obligations under an agreement reached at the conference, the purchaser may apply to the Magistrates Court for one or more of the following orders: (c) an order that the dealer (or another person at the expense of the dealer) repair the defect; (d) an order that the dealer pay to the purchaser the reasonable costs of repairing or completing the repairs of the defect; (e) an order that the dealer compensate the purchaser for any loss or damage suffered by the purchaser as a result of the dealer's conduct; (f) an order enforcing the terms of an agreement reached at the conference. (6) The purchaser is under a duty to mitigate any loss or damage suffered as a result of the dealer's conduct. (7) If the Magistrates Court makes an order for the repair of the defect and the dealer fails to comply with the terms of the order, the Court may, on the further application of the purchaser, make an order that the dealer pay to the purchaser the reasonable costs of repairing or completing the repairs of the defect or an order for compensation or both. (8) If repairs that a dealer is under a duty to carry out under this Part are carried out by another person on behalf of the dealer and the purchaser of the vehicle pays the costs of the repair or an amount towards those costs, the Magistrates Court may, on the application of the purchaser, order the dealer to reimburse the purchaser in respect of the amount paid by the purchaser. (9) Despite subsection (1), if— (a) a dealer is under a duty to repair a defect in a second-hand vehicle under this Part; and (b) because of the defect the vehicle— (i) cannot be driven; or (ii) cannot be driven safely; or (iii) cannot be driven without risk of damage to the vehicle; and (c) it is unreasonable in the circumstances having regard to the nature of the defect and the distance that the vehicle would have to be transported that the purchaser be required to deliver the vehicle to the dealer at the place referred to in subsection (1); and (d) the purchaser has given the dealer proper notice (written or oral) of the defect and afforded the dealer a reasonable opportunity to nominate a place other than that referred to in subsection (1) at which the dealer is prepared to repair the defect; and (e) the dealer fails to nominate another place or it is unreasonable in the circumstances having regard to the matters referred to in paragraph (c) that the purchaser be required to take the vehicle to the place nominated by the dealer, then— (f) the purchaser may cause the vehicle to be repaired by a person other than the dealer; and (g) the Magistrates Court may, on the application of the purchaser, order the dealer to pay to the purchaser the reasonable costs of repairing the defect. (10) Despite the other provisions of this section, if a dealer who is under a duty to repair a defect in a vehicle under this Part is not licensed under this Act— (a) the purchaser may cause the vehicle to be repaired by a person other than the dealer; and (b) the Magistrates Court may, on the application of the purchaser, order the dealer to pay to the purchaser the reasonable costs of repairing the defect. (11) The Magistrates Court may, on an application under this section, make an order under this section on any terms and conditions it considers just. 25—Participation of assessors in proceedings In any proceedings under this Part, the Magistrates Court will, if a magistrate so determines, sit with assessors selected in accordance with Schedule 1.