Sch 3Second-hand Vehicles Compensation Fund

Schedule 3—Second-hand Vehicles Compensation Fund 1—Second-hand Vehicles Compensation Fund continues The Second-hand Vehicles Compensation Fund continues and will continue to be administered by the Commissioner. 2—Claim against Fund (1) A person (not being a dealer) who has— (a) purchased a second-hand vehicle from a dealer; or (b) made a payment to a dealer in respect of the purchase of a second-hand vehicle under a contract that has been rescinded in accordance with section 18B; or (c) sold a second-hand vehicle to a dealer; or (d) left a second-hand vehicle in a dealer's possession to be offered for sale by the dealer on behalf of the person, may make a claim for compensation from the Fund in respect of an unsatisfied claim against the dealer arising out of or in connection with the transaction. (2) A claim for compensation from the Fund must— (a) be made to the Commissioner; and (b) be made in a manner and form determined by the Commissioner. (3) This Schedule— (a) applies to a claim relating to a transaction only if the dealer was licensed, or the claimant reasonably believed the dealer to have been licensed, at the time of the transaction; (b) does not apply to a claim arising out of or in connection with— (i) the sale of a second-hand vehicle by auction; or (ii) the sale of a second-hand vehicle negotiated immediately after an auction for the sale of the vehicle was conducted, if the auctioneer who conducted the auction or negotiated such a sale (as the case may be) was acting as an agent only and was selling the vehicle on behalf of another person who was not a licensed dealer; (c) does not apply to a claim prescribed by regulation. (4) The Commissioner may require a person making a claim— (a) to furnish further information specified by the Commissioner; and (b) to verify, by statutory declaration, information furnished for the purposes of making or establishing a claim. (5) The Commissioner must, on receipt of a claim for compensation— (a) give the claimant and the dealer or former dealer concerned notice of the claim; and (b) allow the claimant and the dealer or former dealer a reasonable opportunity to make submissions as to the claim. (6) The Commissioner must, on making a determination on a claim, give the claimant and the dealer or former dealer written notice of the determination. (7) In determining a claim for compensation under this clause, any possible reduction to which the claimant's entitlement may be subject because of insufficiency of the Fund must be disregarded. (8) In determining a claim for compensation under this clause, questions of fact are to be decided on the balance of probabilities. (9) If the Commissioner is satisfied that— (a) the claimant has a valid unsatisfied claim against the dealer arising out of or in connection with the transaction; and (b) the claimant has no reasonable prospect of recovering the amount of the claim (except under this Schedule), the Commissioner may make a determination authorising a payment to the claimant from the Fund. (10) The claimant or the dealer or former dealer concerned may, within 3 months after receiving notice of the Commissioner's determination, appeal to the Magistrates Court against the determination. (11) If an appeal is not instituted within the time allowed, the claimant's entitlement to compensation is finally determined for the purposes of this Schedule. 3—Management of Fund (1) The following amounts will be paid into the Fund— (a) contributions required to be paid under clause 4; and (b) amounts recovered by the Commissioner under clause 5; and (c) amounts paid from the Consolidated Account under subclause (3); and (d) amounts derived from investment under subclause (5). (2) The following amounts will be paid out of the Fund: (a) an amount authorised under this Schedule; (b) expenses incurred in administering the Fund (including expenses incurred in insuring the Fund against possible claims); (c) the costs of investigating compliance with this Act or possible misconduct of dealers or salespersons; (d) any amounts, approved by the Minister, to be paid towards the cost of programs relating to education, research or reform for the benefit of dealers, salespersons or members of the public; (e) any amount required to be paid into the Consolidated Account under subclause (4). (3) Where the Fund is insufficient to meet an amount that may be authorised to be paid under clause 2, the Minister may, with the approval of the Treasurer, authorise the payment of an amount specified by the Minister out of the Consolidated Account which is appropriated by this clause to the necessary extent. (4) The Minister may authorise payment from the Fund into the Consolidated Account of an amount paid into the Fund from the Consolidated Account if the Minister is satisfied that the balance remaining in the Fund will be sufficient to meet any amounts that may be authorised to be paid under clause 2. (5) Any amounts standing to the credit of the Fund that are not immediately required for the purposes of this Act may be invested in a manner approved by the Minister. 4—Licensed dealers may be required to contribute to Fund (1) Each licensed dealer must pay to the Commissioner for payment into the Fund such contribution as the licensee is required to pay under the regulations. (2) If a licensee fails to pay a contribution within the time allowed for payment by the regulations, the licence is suspended until the contribution is paid. 5—Right of Commissioner where claim allowed (1) On payment out of the Fund of an amount authorised by the Commissioner, the Commissioner is subrogated to the extent of the payment to the rights of the person to whom the payment was made in respect of the claim in relation to which the payment was made. (2) If the Commissioner is subrogated to rights arising from an act or omission of a body corporate occurring on or after the commencement of this subclause, the persons who were directors of the body corporate at the time of the act or omission will be jointly and severally liable together with the body corporate for any amount recoverable by the Commissioner from the body corporate in pursuance of those rights. (3) A director of a body corporate will not have a liability under subclause (2) in respect of an act or omission of the body corporate if the director proves, on the balance of probabilities, that the act or omission occurred without the director's express or implied authority or consent. 6—Accounts and audit (1) The Commissioner must cause proper accounts of receipts and payments to be kept in relation to the Fund. (2) The Auditor-General may at any time, and must at least once in every year, audit the accounts of the Fund. 7—Expiry of Schedule (1) This Schedule will expire on a day fixed by regulation for that purpose. (2) The regulations may provide for the payment or distribution of money remaining in the Fund on the expiry of this Schedule and make any other provision that the Governor considers necessary or appropriate in consequence of the expiry of this Schedule.