Subdiv 3Cooling‑off

Subdivision 3—Cooling‑off 18A—Interpretation In this Subdivision— approved form means a form approved by the Commissioner. 18B—Cooling‑off (1) This section applies to a contract entered into by a dealer after the commencement of this section for the sale of a second‑hand vehicle to a natural person, other than a contract for the sale of a vehicle of a prescribed class or the sale of a vehicle in prescribed circumstances. (2) Subject to this section, a purchaser under a contract to which this section applies may, by giving the dealer written notice before the expiration of the cooling‑off period of the purchaser's intention not to be bound by the contract, rescind the contract. (3) The notice may be given— (a) by giving it to the dealer personally; or (b) by posting it by registered post to the dealer's address for service (in which case the notice is taken to have been given when the notice is posted); or (c) by leaving it for the dealer at the dealer's address for service with a person apparently responsible to the dealer; or (d) by transmitting it by email to an email address provided by the dealer (in which case the notice is taken to have been given at the time of transmission). (4) If in legal proceedings the question arises whether a notice has been given in accordance with this section, the burden of proving the giving of the notice lies on the purchaser. (5) A dealer, or a person acting on behalf of a dealer, may not demand or require the purchaser of a second‑hand vehicle under a contract to which this section applies to make a payment in respect of the sale before the expiration of the cooling‑off period, other than payment of a deposit towards the contract price of the vehicle that does not exceed 10% of that price. (6) In proceedings for an offence against subsection (5), if it is proved that the defendant received money from the purchaser, it will be presumed, in the absence of proof to the contrary, that the defendant demanded or required the payment of that money. (7) If a purchaser rescinds a contract by notice under this section, the dealer must, before the end of the next clear business day after receiving the notice, refund to the purchaser any amount paid in respect of the sale less 2% of the contract price of the vehicle or $100, whichever is the lesser (which the dealer is entitled to retain). Expiation fee: $500. (8) For the purposes of subsection (7), a refund may be paid— (a) by giving the purchaser payment in cash or by cheque; or (b) by posting a cheque by registered post to the purchaser's last known address (in which case the refund is taken to have been paid when the cheque is posted); or (c) by electronic transfer of funds into an ADI account nominated by the purchaser (in which case the refund is taken to have been paid when the transfer is executed by the dealer); or (d) by any other prescribed method. (9) If the purchaser of a second‑hand vehicle under a contract to which this section applies enters into a contract for the provision of credit (a credit contract) in connection with the purchase, the following provisions apply: (a) if the contract for the purchase of the vehicle is rescinded under this section—the credit contract is void and any associated mortgage or other security taken by the credit provider is discharged; (b) if the contract for the purchase of the vehicle is not rescinded—the credit contract does not take effect until— (i) the purchaser waives his or her right to a cooling‑off period in relation to the contract for the purchase of the vehicle in accordance with section 33; or (ii) if the right to a cooling‑off period is not waived— the expiration of the cooling‑off period. 18C—Legal title to vehicle remains with dealer during cooling‑off period Subject to an agreement in the approved form between a dealer and a purchaser under a contract for the sale of a second‑hand vehicle to which section 18B applies, the following provisions apply in respect of the contract: (a) legal title to the vehicle does not pass from the dealer to the purchaser until the expiration of the cooling‑off period in relation to the contract; (b) the dealer is entitled to retain possession of the vehicle during the cooling‑off period; (c) the dealer must allow the purchaser, or a person nominated by the purchaser, reasonable access to the vehicle during the cooling‑off period for the purpose of test driving or inspecting the vehicle; (d) neither the dealer nor the purchaser, nor a person acting on behalf of the dealer or the purchaser, may drive the vehicle more than 100 kilometres during the cooling‑off period; (e) the dealer must ensure during the cooling‑off period that the vehicle— (i) is roadworthy; and (ii) is insured against loss or damage; and (iii) is registered, or bears trade plates, and is insured in accordance with the requirements of the Motor Vehicles Act 1959. 18D—Trade‑in vehicles (1) If in connection with a contract to which section 18B applies, legal title to a vehicle owned by the purchaser is to pass to the dealer by way of trade‑in (the trade‑in vehicle), the following provisions apply: (a) the purchaser is to retain possession of the trade‑in vehicle during the cooling‑off period; (b) details of the condition of the trade‑in vehicle at the commencement of the cooling‑off period must be recorded in the approved form, which must be signed by the dealer and the purchaser; (c) legal title to the trade‑in vehicle does not pass to the dealer until the expiration of the cooling‑off period. (2) If during the cooling‑off period the trade‑in vehicle, or any part of the trade‑in vehicle, is altered in any way or damaged— (a) the dealer may, by written notice in the approved form given personally to the purchaser, rescind the contract to which section 18B applies and any contract made in connection with that contract; and (b) if the contract to which section 18B applies is so rescinded—any contract entered into by the purchaser for the provision of credit in connection with that contract is void and any associated mortgage or other security taken by the credit provider is discharged. 18E—Option to purchase vehicle subject to contract for sale (1) A dealer must not, during the cooling‑off period in relation to a contract for the sale of a second‑hand vehicle— (a) sell or offer for sale the vehicle or an interest in the vehicle other than an option to purchase the vehicle if the contract for the sale of the vehicle is rescinded; or (b) offer for sale more than 1 option to purchase the vehicle. Maximum penalty: $20 000. (2) A dealer proposing to grant an option to a person to purchase a second‑hand vehicle during the cooling‑off period in relation to a contract for the sale of the vehicle— (a) may require the person to pay a deposit towards the proposed contract price of the vehicle that does not exceed 2% of that price or $100, whichever is the lesser; and (b) must provide the person with a notice in the approved form— (i) advising that the vehicle is subject to a contract for sale and the person will only be entitled to purchase the vehicle if the contract is rescinded; and (ii) containing other prescribed information. (3) The holder of an option to purchase a second‑hand vehicle subject to a contract for sale is entitled to a refund of any deposit paid in order to secure the option if, and only if, the contract for sale is not rescinded. Division 2—Sales by auction 19—Interpretation In this Division— trade auction means an auction for the sale of a second-hand vehicle at which bids are accepted only from dealers. 20—Notices to be displayed (1) An auctioneer must not conduct an auction for the sale of a second-hand vehicle (other than a trade auction) unless a notice in the prescribed form containing the required particulars and statements relating to the vehicle is attached to the vehicle and has been attached to the vehicle at all times when the vehicle has been available for inspection by prospective bidders. (2) For the purposes of subsection (1), the required particulars and statements are— (a) the name and business address of the auctioneer; and (b) if the auctioneer is conducting the auction— (i) on the auctioneer's own behalf, a statement— (A) that the auctioneer will be liable to discharge the duty to repair under Part 4; or (B) if there is no duty to repair under Part 4—that there is no duty to repair the vehicle; or (ii) on behalf of a dealer— (A) the name in which the dealer is licensed and business address of the dealer; and (B) a statement— • that the dealer will be liable to discharge the duty to repair under Part 4; or • if there is no duty to repair under Part 4that there is no duty to repair the vehicle; or (iii) on behalf of another person (not being a dealer)—a statement that no duty to repair will apply under Part 4; and (c) a statement that the name and address of the last owner of the vehicle who was not a dealer are available on request from the auctioneer; and (d) if the owner referred to in paragraph (c) carried on a vehicle leasing business and let the vehicle on hire to another person under a vehicle leasing agreement—a statement that the other person's name and address are available on request from the auctioneer; and (e) the vehicle's year of manufacture (as determined by the regulations); and (f) the vehicle's year of first registration; and (g) the vehicle's manufacturer and model designation; and (h) if the vehicle is registered—the vehicle's registration number; and (i) if the vehicle is not registered—the vehicle's engine number; and (j) if the vehicle is equipped with an odometer—the reading of the odometer at the time the vehicle was acquired from the last owner of the vehicle who was not a dealer; and (k) if the vehicle is equipped with an odometer and the auctioneer is conducting the auction on the auctioneer's own behalf or on behalf of a dealer— (i) if it is more likely than not that the reading of the odometer is a reasonably accurate measure of the distance travelled by the vehicle—a statement that the odometer reading may be regarded as reasonably accurate; or (ii) if that is not the case—the statement required by the regulations; and (l) such other particulars and statements as are prescribed. (3) The auctioneer must, on request by a potential purchaser, disclose the name and address of the last owner (or lessee) of the vehicle to the potential purchaser before a contract is made for the purchase of the vehicle. (4) In proceedings for an offence relating to a failure to include in a notice all the particulars and statements required under this section or the inclusion of any incorrect particulars or statement, it is a defence to prove that the defendant, having made reasonable inquiries and a proper examination of the vehicle, complied with the requirements of the subsection to the best of the defendant's knowledge, information and belief. (5) An auctioneer must not, in an advertisement published in connection with an auction for the sale of a second-hand vehicle (being an auction that the auctioneer is conducting on the auctioneer's own behalf or on behalf of a dealer), refer directly or indirectly to the odometer reading of the vehicle or the distance travelled by the vehicle unless a notice is attached to the vehicle under this section and the notice contains a statement by the auctioneer that the odometer reading of the vehicle may be regarded as reasonably accurate. (6) A person from whom an auctioneer acquires ownership of a second-hand vehicle or on whose behalf a second-hand vehicle is to be auctioned must not give the auctioneer any information as to any of the matters referred to in subsection (2) that is to that person's knowledge false or misleading in a material particular. Maximum penalty: $2 500. 21—Notices to be provided to purchasers of second-hand vehicles On the sale of a second-hand vehicle to a person other than a dealer— (a) by auction; or (b) by a sale negotiated by an auctioneer immediately after the conduct of an auction for the sale of the vehicle, the auctioneer must ensure that— (c) a copy of the notice that was required to be attached to the vehicle under section 20; and (d) a notice in the prescribed form, are given to the purchaser for retention before the purchaser takes possession of the vehicle. 22—Trade auctions (1) An auctioneer must not conduct a trade auction unless a notice in the prescribed form is attached to the vehicle and has been attached to the vehicle at all times when the vehicle has been available for inspection by prospective bidders. (2) A person who advertises a trade auction must include in the advertisement a statement in the prescribed form.