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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Second-hand Vehicle Dealers (Cooling-off Rights)
Amendment Bill 2009
A BILL FOR
An Act to amend the Second-hand Vehicle Dealers Act 1995; and
to make a consequential amendment to the Magistrates Court
Act 1991.
Contents
Part 1—Preliminary
1 Short
title
2 Commencement
3 Amendment provisions
Part 2—Amendment of Second-hand Vehicle Dealers
Act 1995
4 Amendment of section
3—Interpretation
5 Insertion of section 3A
3A Close
associates
6 Amendment of section 4—Application of
Act
7 Amendment of section 7—Dealers to be licensed
8 Amendment of
section 13—Incorporated dealer's business to be properly managed and
supervised
9 Insertion of section
13A
13A Salespersons
10 Amendment of section
14—Registration of dealer's business premises
11 Insertion of heading
to Part 3 Division 1 Subdivision 1
12 Amendment of section
15—Application of Division
13 Insertion of heading to Part 3 Division 1
Subdivision 2
14 Amendment of section 16—Notices to be
displayed
15 Amendment of section 17—Form of contract
16 Amendment
of section 18—Notices to be provided to purchasers of second-hand
vehicles
17 Insertion of Part 3 Division 1 Subdivision 3
Subdivision
3—Cooling-off
18A Interpretation
18B Cooling-off
18C Legal
title to vehicle remains with dealer during cooling-off
period
18D Trade-in
vehicles
18E Option to purchase vehicle subject to
contract for sale
18 Amendment of section 20—Notices to be
displayed in case of auction
19 Amendment of section 21—Notices to be
provided to purchasers of second-hand vehicles
20 Amendment of section
22—Trade auctions
21 Amendment of section
26—Interpretation
22 Amendment of section 27—Cause for
disciplinary action
23 Amendment of section 31—Disciplinary
action
24 Amendment of section 32—Contravention of
orders
25 Amendment of section 33—No waiver of rights
26 Amendment
of section 34—Interference with odometers prohibited
27 Amendment of
section 41—False or misleading information
28 Amendment of section
42—Name in which dealer may carry on business
29 Amendment of section
50—Evidence
30 Amendment of section
53—Regulations
31 Amendment of Schedule 3—Second-Hand Vehicles
Compensation Fund
Schedule 1—Related amendment
Part 1—Amendment of Magistrates Court
Act 1991
1 Amendment of section
3—Interpretation
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Second-hand Vehicle Dealers (Cooling-off
Rights) Amendment Act 2009.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Second-hand Vehicle Dealers
Act 1995
4—Amendment of
section 3—Interpretation
(1) Section 3, after the definition of authorised officer
insert:
business day means a day other than a Sunday or other public
holiday;
close associate—see section 3A;
(2) Section 3, definition of credit contract—delete
the definition and substitute:
cooling-off period, in relation to a contract for the sale of
a second-hand vehicle, means the period commencing when the contract is made and
concluding at the end of the second clear business day after the day on which
the contract is made;
(3) Section 3, definition of dealer—before "selling"
insert:
buying or
(4) Section 3—after the definition of model
designation insert:
offer for sale—an offer for sale includes exposure for
sale, an invitation to treat and the publishing, or authorising the publication,
of an advertisement;
(5) Section 3, after the definition of registered premises
insert:
salesperson means a person who, for or on behalf of a
dealer—
(a) buys or sells second-hand vehicles; or
(b) induces or attempts to induce, or negotiates with a view to inducing,
a person to buy or sell a second-hand vehicle; or
(c) performs a function of a kind prescribed by regulation for the
purposes of this paragraph;
(6) Section 3, definition of sell—delete "includes
sell on behalf of another person and" and substitute:
includes exchange, and sell on behalf of another person; and
After section 3 insert:
3A—Close associates
(1) 2 persons are close associates if—
(a) 1 is a spouse, domestic partner, parent, brother, sister or child of
the other; or
(b) they are members of the same household; or
(c) they are in partnership; or
(d) they are joint venturers; or
(e) they are related bodies corporate; or
(f) 1 is a body corporate and the other is a director, manager, secretary
or public officer of the body corporate; or
(g) 1 is a body corporate (other than a public company whose shares are
quoted on a prescribed financial market) and the other is a shareholder in the
body corporate; or
(h) 1 is a body corporate whose shares are quoted on a prescribed
financial market and the other is a substantial shareholder (within the meaning
of the Corporations Act 2001 of the Commonwealth) in the body
corporate; or
(i) 1 has a right to participate (otherwise than as a shareholder in a
body corporate) in income or profits derived from a business conducted by the
other; or
(j) 1 is in a position to exercise control or significant influence over
the conduct of the other.
(2) For the purposes of subsection (1)—
domestic partner means a person who is a domestic partner
within the meaning of the Family Relationships Act 1975, whether
declared as such under that Act or not;
prescribed financial market means a prescribed financial
market within the meaning of section 9 of the Corporations Act 2001
of the Commonwealth;
spouse—a person is the spouse of another if they are
legally married.
6—Amendment of
section 4—Application of Act
Section 4(2)—delete "Section 17 does" and substitute:
Section 17 and Part 3 Division 1 Subdivision 3 do
7—Amendment of
section 7—Dealers to be licensed
(1) Section 7(1), penalty provision—delete the penalty provision and
substitute:
Maximum penalty: $100 000.
(2) Section 7(2)(b)—delete "selling" and substitute:
buying or selling
8—Amendment of
section 13—Incorporated dealer's business to be properly managed and
supervised
Section 13, penalty provision—delete the penalty provision and
substitute:
Maximum penalty: $100 000.
After section 13 insert:
13A—Salespersons
(1) A dealer must not employ a person as a salesperson unless the
person—
(a) has not—
(i) been convicted of an indictable offence of dishonesty; or
(ii) during the period of 10 years preceding the employment, been
convicted of a summary offence of dishonesty; and
(b) is not suspended or disqualified from practising or carrying on an
occupation, trade or business under a law of this State, the Commonwealth,
another State or a Territory of the Commonwealth.
Maximum penalty: $100 000.
(2) A person must not act as a salesperson unless the
person—
(a) has not—
(i) been convicted of an indictable offence of dishonesty; or
(ii) during the period of 10 years preceding the employment, been
convicted of a summary offence of dishonesty; and
(b) is not suspended or disqualified from practising or carrying on an
occupation, trade or business under a law of this State, the Commonwealth,
another State or a Territory of the Commonwealth.
Maximum penalty: $100 000.
(3) For the purposes of subsection (2), a person acts as a
salesperson if the person—
(a) is or remains in the service of a dealer as a salesperson;
or
(b) holds himself or herself out as a salesperson; or
(c) otherwise acts as a salesperson.
(4) A provision of this section that provides that a person must not be
employed or act as a salesperson if the person is convicted, disqualified or
suspended applies to a person who is employed as a salesperson, or who is acting
as a salesperson, immediately before the commencement of this section only if
the person is convicted, disqualified or suspended after the
commencement.
10—Amendment of
section 14—Registration of dealer's business premises
(1) Section 14(1), penalty provision—delete the penalty provision
and substitute:
Maximum penalty: $5 000.
Expiation fee: $315.
(2) Section 14(5), penalty provision—delete the penalty provision
and substitute:
Maximum penalty: $5 000.
Expiation fee: $315.
11—Insertion of
heading to Part 3 Division 1 Subdivision 1
Part 3 Division 1—before section 15 insert:
Subdivision 1—Application of
Division
12—Amendment of
section 15—Application of Division
(1) Section 15(1)—after "This Division" insert:
, other than section 18E,
(2) Section 15(2)—delete "Except as provided in section 17, this
Division" and substitute:
This Division, other than sections 17 and 18E,
13—Insertion of
heading to Part 3 Division 1 Subdivision 2
Part 3 Division 1—after section 15 insert:
Subdivision 2—Notices and form of
contract
14—Amendment of
section 16—Notices to be displayed
(1) Section 16(1)—delete "or expose"
(2) Section 16(1), penalty provision—delete the penalty provision
and substitute:
Maximum penalty: $5 000.
Expiation fee: $315.
(3) Section 16(3)(b)—delete "or exposing"
(4) Section 16(3)(c)—delete "or exposing"
(5) Section 16(3)(f)—delete "or exposed"
(6) Section 16(5), penalty provision—delete the penalty provision
and substitute:
Maximum penalty: $5 000.
(7) Section 16(6), penalty provision—delete the penalty provision
and substitute:
Maximum penalty: $5 000.
(8) Section 16(7), penalty provision—delete the penalty provision
and substitute:
Maximum penalty: $2 500.
15—Amendment of
section 17—Form of contract
(1) Section 17(1)(d)—after subparagraph (ii) insert:
(iia) if the contract is subject to a cooling-off period—
(A) when the cooling-off period will expire; and
(B) prescribed information about the rights and obligations of the parties
to the sale under Subdivision 3; and
(2) Section 17(3), penalty provision—delete the penalty provision
and substitute:
Maximum penalty: $5 000.
Expiation fee: $315.
(3) Section 17(4), penalty provision—delete the penalty provision
and substitute:
Maximum penalty: $5 000.
(4) Section 17(5), penalty provision—delete the penalty provision
and substitute:
Maximum penalty: $5 000.
(5) Section 17(6), penalty provision—delete the penalty provision
and substitute:
Maximum penalty: $5 000.
16—Amendment of
section 18—Notices to be provided to purchasers of second-hand
vehicles
Section 18, penalty provision—delete the penalty provision and
substitute:
Maximum penalty: $5 000.
17—Insertion of
Part 3 Division 1 Subdivision 3
Part 3 Division 1—after section 18 insert:
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 fax or email to a fax number or 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 2% of that price or $100,
whichever is the lesser.
Maximum penalty: $5 000.
(6) If a contract is rescinded under this section, the purchaser is
entitled to the return of money paid under the contract, but the dealer may
retain money paid by the purchaser by way of deposit.
(7) 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.
(8) 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 is
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.
Maximum penalty: $5 000.
(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.
18—Amendment of
section 20—Notices to be displayed in case of auction
(1) Section 20(1), penalty provision—delete the penalty provision
and substitute:
Maximum penalty: $5 000.
(2) Section 20(3), penalty provision—delete the penalty provision
and substitute:
Maximum penalty: $5 000.
(3) Section 20(5), penalty provision—delete the penalty provision
and substitute:
Maximum penalty: $5 000.
Expiation fee: $315.
(4) Section 20(6), penalty provision—delete the penalty provision
and substitute:
Maximum penalty: $2 500.
19—Amendment of
section 21—Notices to be provided to purchasers of second-hand
vehicles
Section 21, penalty provision—delete the penalty provision and
substitute:
Maximum penalty: $5 000.
Expiation fee: $315.
20—Amendment of
section 22—Trade auctions
(1) Section 22(1), penalty provision—delete the penalty provision
and substitute:
Maximum penalty: $5 000.
Expiation fee: $315.
(2) Section 22(2), penalty provision—delete the penalty provision
and substitute:
Maximum penalty: $5 000.
Expiation fee: $315.
21—Amendment of
section 26—Interpretation
Section 26—after the definition of director
insert:
salesperson includes a former salesperson.
22—Amendment of
section 27—Cause for disciplinary action
Section 27—after subsection (1) insert:
(1a) There is proper cause for disciplinary action against a salesperson
if the salesperson has acted unlawfully, improperly, negligently or unfairly in
the course of acting as a salesperson.
23—Amendment of
section 31—Disciplinary action
Section 31(1)(b)—delete "$20 000" and substitute:
$100 000
24—Amendment of
section 32—Contravention of orders
(1) Section 32(1), penalty provision—delete the penalty provision
and substitute:
Maximum penalty: $175 000 or imprisonment for 1 year.
(2) Section 32(2), penalty provision—delete the penalty provision
and substitute:
Maximum penalty: $175 000 or imprisonment for 1 year.
25—Amendment of
section 33—No waiver of rights
(1) Section 33(3), penalty provision—delete the penalty provision
and substitute:
Maximum penalty: $20 000
(2) Section 33(4), penalty provision—delete the penalty provision
and substitute:
Maximum penalty: $20 000
(3) Section 33(5), penalty provision—delete the penalty provision
and substitute:
Maximum penalty: $20 000
(4) Section 33—after subsection (5) insert:
(5a) A dealer must not induce or attempt to induce, or make a
representation or negotiate with a view to inducing, a prospective purchaser of
a second-hand vehicle to waive his or her right under section 18B to
rescind a contract for the sale of the vehicle.
Maximum penalty: $20 000.
(5b) If a dealer is found guilty of an offence against
subsection (5a), a person who has suffered loss or damage as a result of
the offence may apply to the Magistrates Court for an order that the dealer
compensate the person for the loss or damage.
(5c) The regulations may require a person or body prescribed by the
regulations to report to the Minister, in accordance with requirements specified
in the regulations, on the extent to which rights in general, or particular
rights, conferred by this Act have been waived under subsection (2).
26—Amendment of
section 34—Interference with odometers prohibited
Section 34(1), penalty provision—delete the penalty provision and
substitute:
Maximum penalty: $10 000.
27—Amendment of
section 41—False or misleading information
Section 41, penalty provision—delete the penalty provision and
substitute:
Maximum penalty:
(a) if the person made the statement knowing that it was false or
misleading—$25 000;
(b) in any other case—$5 000.
28—Amendment of
section 42—Name in which dealer may carry on business
Section 42, penalty provision—delete the penalty provision and
substitute:
Maximum penalty: $5 000.
Expiation fee: $315.
29—Amendment of
section 50—Evidence
Section 50(1)—delete subsection (1) and substitute:
(1) For the purposes of this Act—
(a) if a person buys or offers to buy, or sells or offers for sale, at
least 4 second-hand vehicles during a period of 12 months, the person will,
in the absence of proof to the contrary, be presumed to have been a dealer
during that period; and
(b) if a person and 1 other person who is a close associate of the person
buy or offer to buy, or sell or offer for sale, an aggregate of at least 6
second-hand vehicles during a period of 12 months, the person and that close
associate will, in the absence of proof to the contrary, both be presumed to
have been dealers during that period; and
(c) if the registration of a second-hand vehicle is transferred from 1
person to another—
(i) the transferor will be presumed, in the absence of proof to the
contrary, to have sold the vehicle to the transferee; and
(ii) the transferee will be presumed, in the absence of proof to the
contrary, to have bought the vehicle from the transferor.
30—Amendment of
section 53—Regulations
(1) Section 53(2)(a)—after "licensed dealers" insert:
or salespersons
(2) Section 53(2)(f)—delete "$2 500" and substitute:
$5 000
(3) Section 53(2)(g)—delete "$210" and substitute:
$315
31—Amendment
of Schedule 3—Second-Hand Vehicles Compensation
Fund
(1) Schedule 3, clause 2(1)—delete "subclause (2), if the
Magistrates Court" and substitute:
this Schedule, if the Commissioner
(2) Schedule 3, clause 2(1)(d)—delete "person" and
substitute:
claimant
(3) Schedule 3, clause 2(1)(e)—delete "person" and
substitute:
claimant
(4) Schedule 3, clause 2(1)—delete "Court may authorise
payment of compensation to that person" and substitute:
Commissioner may authorise payment of compensation to the
claimant
(5) Schedule 3, clause 2(2)—delete "This clause" and
substitute:
This Schedule
(6) Schedule 3, clause 2(2)(b)—delete "person making the
claim" and substitute:
claimant
(7) Schedule 3, clause 2—after subclause (2)
insert:
(3) A claim for compensation under this Schedule must be made to
the Commissioner in a manner and form determined by the
Commissioner.
(4) The personal representative of a claimant (including a
deceased claimant) is entitled to make the claim on behalf of the claimant or
the claimant's estate.
(5) The Commissioner may require a person making a
claim—
(a) to furnish further information specified by the Commissioner;
or
(b) to verify, by statutory declaration, information furnished for
the purposes of making or establishing a claim.
(6) The Commissioner must, on receipt of a claim for
compensation—
(a) give the claimant and the dealer concerned written notice of
the claim; and
(b) allow the claimant and the dealer a reasonable opportunity to
appear before the Commissioner personally or by representative to make
submissions as to the claim.
(7) The Commissioner must, on making a determination on a claim,
give the claimant and the dealer written notice of the
determination.
(8) Schedule 3—after clause 2 insert:
2A—Appeal against Commissioner's
determination
(1) The claimant or the dealer may, within 3 months after
receiving notice of the Commissioner's determination, appeal to the District
Court against the determination.
(2) 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.
2B—Determination, evidence and burden of
proof
(1) In determining a claim for compensation under this Schedule,
any possible reduction to which the claimant's entitlement may be subject
because of insufficiency of the Fund must be disregarded.
(2) Any fact to be proved by a claimant under this Schedule is
sufficiently proved if it is proved on the balance of
probabilities.
(9) Schedule 3, clause 3(2)—delete subclause (2) and
substitute:
(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) the costs of conciliating disputes under section
24;
(e) the costs of disciplinary proceedings under Part
5;
(f) the costs of prosecutions for offences against this
Act;
(g) any amounts, approved by the Minister, to be paid towards the
cost of prescribed educational programs conducted for the benefit of dealers,
salespersons or members of the public;
(h) any amount required to be paid into the Consolidated Account
under subclause (4).
(10) Schedule 3, clause 5(1)—delete "by the Magistrates
Court" and substitute:
under this Schedule
Part 1—Amendment of Magistrates Court
Act 1991
1—Amendment of
section 3—Interpretation
Section 3(1), definition of minor statutory proceeding,
(b)—after "Part 4" insert:
or section 33