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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Motor Dealers and Repairers Bill 2013
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.
Overview of Bill
The objects of this Bill are as follows:
(a) to establish a scheme for the licensing and regulation of motor dealers, motor vehicle
repairers, motor vehicle recyclers and motor vehicle tradespersons,
(b) to provide for remedies for customers of motor dealers and motor vehicle repairers who
suffer loss as a result of illegal or unjust conduct by motor dealers or motor vehicle
repairers,
(c) to empower the Consumer, Trader and Tenancy Tribunal (the Tribunal) to declare terms of
contracts for the supply of motor vehicles by manufacturers to motor dealers unfair and to
make orders for the protection of motor dealers,
(d) to repeal the Motor Dealers Act 1974 and the Motor Vehicle Repairs Act 1980,
(e) to make amendments consequential on the enactment of the proposed Act and to enact
provisions of a savings and transitional nature as a consequence of that enactment.
Outline of provisions
Part 1 Preliminary
Clause 1 sets out the name (also called the short title) of the proposed Act.
b2013-014-07.d12
Motor Dealers and Repairers Bill 2013 [NSW]
Explanatory note
Clause 2 provides for the commencement of the proposed Act on a day or days to be appointed
by proclamation, except for proposed Part 6 relating to the matters referred to in paragraph (c) of
the Overview (which will commence on the date of assent to the proposed Act).
Clause 3 sets out the objects of the proposed Act.
Clause 4 defines certain words and expressions used in the proposed Act. A licence is defined to
include a motor dealer's licence, a motor vehicle repairer's licence, a motor vehicle recycler's
licence and a tradesperson's certificate.
Clause 5 defines a motor dealer as a person who carries on the business of dealing in motor
vehicles on a wholesale or retail basis and excludes financiers, manufactures and motor vehicle
brokers from that definition.
Clause 6 defines a motor vehicle repairer as a person who carries on the business of carrying out
one or more classes of repair work. The classes of work that are repair work are to be prescribed
by the regulations.
Clause 7 provides that a reference to carrying on a business includes carrying on a business in
partnership or by an employee, contractor, agent or other person.
Clause 8 defines close associate of an applicant for a licence or a licence holder.
Clause 9 exempts certain motor vehicles from the operation of the proposed Act.
Part 2 Licences
Division 1 Offences
Clause 10 defines transport service owner.
Clause 11 prohibits a person from carrying on, or advertising that the person carries on or is
willing to carry on, the business of a motor dealer unless the person holds a motor dealer's licence,
carries on the business at a place for which the licence is granted and complies with the licence.
Clause 12 prohibits a person from carrying on, or advertising that the person carries on or is
willing to carry on, the business of a motor vehicle repairer unless the person holds a motor vehicle
repairer's licence, carries on the business at a place for which the licence is granted and complies
with the licence.
Clause 13 prohibits a person from carrying on, or advertising that the person carries on or is
willing to carry on, the business of a motor vehicle recycler unless the person holds a motor
vehicle recycler's licence, carries on the business at a place for which the licence is granted and
complies with the licence.
Clause 14 provides that a person is not guilty of an offence under the proposed Division if the
person carries on business in partnership with another person who complies with the requirements
of the proposed Division for that business.
Clause 15 prohibits agreements or arrangements by motor vehicle repairers or transport service
owners for classes of repair work to be done by other persons who do not hold motor vehicle
repairer licences. It also prohibits insurers from requiring repair work to be done by a person who
does not hold such a licence.
Clause 16 requires a motor vehicle repairer, motor dealer or transport service owner to have repair
work done by the holder of an appropriate tradesperson's certificate.
Clause 17 prohibits a person from falsely holding himself or herself out as the holder of a licence
or as being authorised to carry out a class of repair work.
Clause 18 prohibits the holder of a tradesperson's certificate from transferring or attempting to
transfer or lending the certificate to another person. It will also be an offence to attempt to obtain
such a transfer or loan.
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Explanatory note
Clause 19 makes it an offence for the holder of a licence to fail, without a reasonable excuse, to
produce the licence to an authorised officer, if the request is made at a place of business specified
in the licence and, in the case of a tradesperson's certificate, the place is also a place where the
holder does repair work.
Division 2 Licences generally
Clause 20 empowers the Secretary (defined as the head of the Public Service agency to which the
administration of the proposed Act is assigned) (the Secretary) to issue motor dealers' licences,
motor vehicle repairers' licences, motor vehicle recyclers' licences and tradespersons' certificates
(licences).
Clause 21 applies Part 2 of the Licensing and Registration (Uniform Procedures) Act 2002 to the
licences, subject to modifications contained in or prescribed under the proposed Act. The Part
applied contains procedures for the making of applications for licences and the granting, transfer,
renewal, restoration and replacement of licences.
Clause 22 enables a person to hold 2 or more different licences.
Division 3 Grant and refusal of licence applications
Clause 23 enables the Secretary to make inquiries relating to applications for licences and also
requires the Commissioner of Police, if requested by the Secretary, to investigate and report on an
application for a licence.
Clause 24 requires licence applications to be accompanied by the application fee prescribed by
the regulations.
Clause 25 sets out mandatory grounds for refusal of a motor dealer's licence, a motor vehicle
repairer's licence or a motor vehicle recycler's licence. In the case of individuals, the grounds
include being under the age of 18, not being a fit and proper person to hold a licence, being a
controlled member of a declared organisation, being an undischarged bankrupt, having been found
guilty within the previous 10 years of a motor vehicle stealing offence and not having
qualifications prescribed by the regulations. In the case of corporations, a licence may be refused
if a director or person involved in management would not be able to get a licence, if the officers
of the corporation do not have the qualifications prescribed by the regulations or the reputation of
the corporation is such that it is not a fit and proper person to hold a licence. A licence must also
be refused if the Secretary is satisfied that the applicant is not likely to carry on the business
honestly and fairly or that the carrying on of the business at a proposed place is unlawful for any
reason. A licence may be refused on the ground that the applicant has a close associate who is not
a fit and proper person to hold a licence.
Clause 26 sets out mandatory grounds for refusal of tradespersons' certificates, including not
being a fit and proper person to hold a licence, not having the required qualifications and being an
apprentice or trainee.
Clause 27 sets out matters that may be considered in determining whether a person is a fit and
proper person to hold a motor dealer's licence, a motor vehicle repairer's licence or a motor
vehicle recycler's licence. A person who is a member of, or regularly associates with members of,
a declared organisation under the Crimes (Criminal Organisations Control) Act 2012 will not be
a fit and proper person. A person will also not be a fit and proper person if there is a reasonable
inference from the applicant's relationship with such an organisation that granting the licence is
likely to further the organisation's criminal activities.
Division 4 Terms of licences
Clause 28 provides that a motor dealer's licence is to specify the place or places of business at
which the licence holder may carry on the business of a motor dealer.
Clause 29 provides that a motor vehicle repairer's licence is to specify the place or places of
business at which the licence holder may carry on the business of a motor vehicle repairer.
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Motor Dealers and Repairers Bill 2013 [NSW]
Explanatory note
Clause 30 provides that a motor vehicle recycler's licence is to specify the place or places of
business at which the licence holder may carry on the business of a motor vehicle recycler.
Clause 31 provides that a tradesperson's certificate is to specify the class or classes of repair work
authorised by the certificate.
Clause 32 enables conditions to be imposed on licences by the Secretary or by regulations.
Clause 33 provides that a licence has effect for a maximum term of 3 years.
Clause 34 enables applications to amend licences to be made.
Clause 35 enables licences to be surrendered.
Clause 36 enables duplicate licences to be issued.
Clause 37 requires a licence holder to notify the Secretary if the licence holder ceases to carry on
business at a place specified in the licence.
Part 3 Disciplinary provisions
Division 1 Grounds for disciplinary action
Clause 38 sets out the grounds on which action may be taken against a licence holder or former
licence holder. The grounds include contravening or being likely to contravene the proposed Act
or regulations or a licence condition, not being a fit and proper person to hold a licence, receiving
or dealing in stolen goods and improperly obtaining a licence.
Clause 39 sets out additional grounds on which disciplinary action may be taken against the
holder or former holder of a motor dealer's licence, a motor vehicle repairer's licence or a motor
vehicle recycler's licence. The grounds include carrying on a business in a dishonest or unfair
manner and, in the case of a motor dealer's licence, contravening trust account requirements
relating to sales on consignment.
Clause 40 enables disciplinary action to be taken against the holder of a tradesperson's certificate
on the ground that the person is not competent to do the repair work authorised by the certificate.
Division 2 Disciplinary process
Clause 41 requires a show cause notice to be issued by the Secretary to a person before the
Secretary takes disciplinary action against the person. The notice must set out the grounds for the
proposed action and specify a period within which the person may make submissions to the
Secretary. The Secretary must consider any such submissions before taking action.
Clause 42 enables the Secretary to suspend a person's licence pending a decision as to whether to
take disciplinary action against the person.
Clause 43 empowers the Secretary to conduct inquiries and investigations relating to matters to
which a show cause notice relates and any submissions made in response to a notice.
Clause 44 provides that the Secretary may decide to take no further action in respect of a
disciplinary matter, other than in relation to a matter where a licence is required to be cancelled.
Clause 45 sets out the actions that the Secretary may take if satisfied there are grounds for taking
disciplinary action. The actions include a reprimand, directions to take specified action,
suspension or cancellation of a licence, disqualification from holding a licence and a requirement
to pay a contribution to the Motor Dealers and Repairers Compensation Fund (the Compensation
Fund).
Clause 46 requires a person's licence to be cancelled if the Secretary is satisfied that the person
has committed a motor vehicle stealing offence within the preceding 10 years or that the person is
not a fit and proper person to hold a licence.
Clause 47 makes it an offence to be involved in a business contrary to a disqualification under the
proposed Act and also requires a suspended or cancelled licence to be returned within 7 days of
suspension or cancellation.
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Motor Dealers and Repairers Bill 2013 [NSW]
Explanatory note
Part 4 Obligations relating to sale, recycling and repair of
motor vehicles
Division 1 Sale of motor vehicles generally
Clause 48 makes it an offence for the holder of a motor dealer's licence to offer or display a motor
vehicle for sale at a place that is not specified in the licence, except in the case of a trade show or
at the request of a prospective buyer.
Clause 49 makes it an offence for a motor dealer, or an employee or agent of a motor dealer, to
fail to disclose that a sale is being made in that capacity.
Clause 50 provides that representations made in the course of a motor dealer's business by an
employee or agent of a motor dealer about a motor vehicle are taken to have been made by the
motor dealer. It also provides that a motor dealer is taken to have complied with a provision of the
proposed Part if an employee or agent of the motor dealer complies with the provision.
Clause 51 makes it an offence to make a false representation about the year of manufacture or first
registration or the model designation of the motor vehicle in connection with offering or
displaying for sale, or sale, of the motor vehicle. A court that convicts a person of such an offence
may order the person to pay compensation of an amount equal to the difference between the sale
price of the motor vehicle and its fair price at the time of sale.
Clause 52 makes it an offence to alter an odometer reading or to remove, replace or render an
odometer inoperative or inaccurate. Repairs or replacement may be carried out if the Secretary is
notified and the odometer is restored or replaced so that it accurately reflects the reading when it
was restored or replaced. A court that convicts a person of such an offence may order the person
to pay compensation of an amount equal to the difference between the sale price of the motor
vehicle and its fair price at the time of sale.
Clause 53 makes it an offence to fit to a motor vehicle a device capable of rendering the odometer
inoperative or inaccurate.
Clause 54 requires a licence holder or any employee of a licence holder to report, without delay,
suspected odometer tampering to an authorised officer.
Division 2 Inspection report and number-plate requirements
Clause 55 applies the proposed Division to sales of motor vehicles by auction and other motor
vehicle sales (other than sales of newly registered motor vehicles, trade sales, and sales of
substantially demolished or dismantled motor vehicles by motor vehicle recyclers).
Clause 56 defines current inspection report as an inspection report issued within a prescribed
period before it is relied on.
Clause 57 requires a current inspection report to be attached to a motor vehicle (with a
number-plate) that is offered or displayed for sale or sold by auction. If no report is attached, the
motor vehicle may be displayed or offered for sale or sold by auction if a current inspection report
is subsequently obtained within a specified period, the purchase price is not altered and the
purchaser is not required to pay the cost of any repairs needed to obtain the report.
Clause 58 requires a current inspection report to be given by a motor dealer to the purchaser of a
motor vehicle (with a number-plate) that is sold (other than by auction) by the motor dealer.
Clause 59 requires the provision, in the case of the sale by a motor dealer of a motor vehicle
without number-plates, of a certificate, issued by Roads and Maritime Services or an equivalent
body of the applicable jurisdiction, relating to the surrender or receipt of number-plates for the
motor vehicle or a declaration by the motor dealer that sets out the reasons for the absence of the
number-plates and any such certificate or receipt.
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Explanatory note
Division 3 Dealers' notices
Clause 60 applies the proposed Division to sales of motor vehicles (other than bona fide auctions,
trade sales, and sales of substantially demolished or dismantled motor vehicles by motor vehicle
recyclers or sales to motor vehicle recyclers).
Clause 61 defines demonstrator motor vehicle.
Clause 62 sets out general requirements for dealers' notices, including that they be in a form
prescribed by the regulations and contain all required information and no information that is false
or misleading in a material particular. Two or more dealers' notices are to be included in one
notice.
Clause 63 requires a dealer's notice to be attached to a second-hand motor vehicle (other than a
motor cycle or a demonstrator motor vehicle) offered or displayed for sale by a motor dealer. The
motor dealer must not sell any such motor vehicle unless the dealer's notice is signed by the motor
dealer at or before the sale and the purchaser and the purchaser is given a copy of the notice to
keep.
Clause 64 provides that a motor dealer must not sell a second-hand motor cycle or a demonstrator
motor vehicle unless a dealer's notice is signed by the motor dealer at or before the sale and the
purchaser and the purchaser is given a copy of the notice to keep.
Clause 65 requires a dealer's notice setting out particulars of damage to be signed by both the
motor dealer who sells a damaged motor vehicle (not being a second-hand motor vehicle) and the
purchaser, with a copy to be given to the purchaser to keep.
Clause 66 establishes defences to offences under the proposed Division.
Division 4 Defects in motor vehicles sold by motor dealers
Clause 67 defines words and expressions used in the proposed Division. A defective vehicle is
defined as a motor vehicle that is in such a condition, or has such a defect, that the supply of the
motor vehicle would constitute a breach of a guarantee that applies under sections 54-57 of
Part 3-2 of the Australian Consumer Law (NSW). The limitation period is the period for which the
dealer guarantee is in force for a motor vehicle.
Clause 68 imposes on a motor dealer the obligation to repair or make good a defective vehicle
sold by the motor dealer so as to place it in a reasonable condition having regard to its age (the
dealer guarantee). The dealer guarantee can be enforced by the purchaser of the motor vehicle
and a subsequent owner other than the motor dealer or another motor dealer. The dealer guarantee
does not apply unless a limitation period is specified for the vehicle and only applies to a defect
or condition that occurs before the end of the limitation period, whether or not it is known during
that period.
Clause 69 provides that a limitation period for a vehicle ends when either the distance limit or
time limit for the motor vehicle is first reached. The proposed clause sets out the distance limits
and time limits for specified vehicles.
Clause 70 enables the distance and time limits to be varied by the regulations under the proposed
Act.
Clause 71 makes the dealer guarantee enforceable by a purchaser or owner of a motor vehicle as
if it were a term of a contract.
Clause 72 excludes certain vehicles from the dealer guarantee.
Clause 73 excludes certain damage from being covered by the dealer guarantee, including
incidental or accidental damage after sale when the motor vehicle was not in the possession of the
motor dealer, damage caused by motor racing and other driver activities and superficial damage
to paint-work or upholstery of a second-hand motor vehicle.
Clause 74 excludes second-hand motor vehicles from the dealer guarantee if requirements
relating to the display and provision of defect notices and current inspection reports are complied
with. The exclusion will not apply to a defect that is not specified in a defect notice and is not also
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Motor Dealers and Repairers Bill 2013 [NSW]
Explanatory note
specified in the relevant current inspection report. If the dealer guarantee is excluded, the
purchaser may recover from the motor dealer the difference between the reasonable cost of
repairing a defect specified in the dealer's notice and the estimated cost of repair specified in that
notice.
Clause 75 provides that the holder of a motor dealer's licence is not liable for the dealer guarantee
for a motor vehicle sold by or on behalf of another motor dealer.
Clause 76 makes a motor dealer liable for damage that occurs during the period between the
delivery of a motor vehicle to the motor dealer for repair under the dealer guarantee and the return
of the motor vehicle to the purchaser or owner.
Clause 77 prevents a person from taking action under both the proposed Act and the Australian
Consumer Law (NSW) in respect of any aspect of a motor vehicle.
Division 5 Dealer-financed purchases of motor vehicles
Clause 78 applies the proposed Division to a purchase of a motor vehicle where the purchaser
obtains credit for the purchase from the motor dealer or a linked credit provider of the motor
dealer. The proposed Division will not apply to sales to motor dealers, financiers or motor vehicle
recyclers, to bona fide auctions or business or commercial purchases or where the credit is not
arranged by the motor dealer.
Clause 79 defines tied loan contract and trade-in (a motor vehicle given or agreed to be given in
consideration for the whole or part of the purchase price of a motor vehicle).
Clause 80 defines the cooling off period for the purchase of a motor vehicle.
Clause 81 confers on the purchaser of a motor vehicle the right to terminate the contract for sale
by notice in writing given during the cooling off period and permits termination even if the
purchaser is in possession of the motor vehicle. A purchaser's rights to terminate in this period are
to be included in the contract for the sale of a motor vehicle.
Clause 82 provides for a waiver of the right to terminate.
Clause 83 prohibits a motor dealer from selling, giving in exchange or otherwise disposing of a
trade-in during the cooling off period for the purchase for which the trade-in is given.
Clause 84 requires a motor dealer, on termination during the cooling off period, to refund to the
purchaser any money received by the motor dealer and to return any trade-in. The motor dealer is
liable for any damage to the trade-in while it is in the motor dealer's possession, other than fair
wear and tear.
Clause 85 requires a purchaser, on termination during the cooling off period, to pay to the motor
dealer the lesser of $250 or 2% of the purchase price and any amount paid to the purchaser for any
trade-in. A purchaser is liable for any damage to the purchased motor vehicle while it is in the
purchaser's possession, other than fair wear and tear.
Clause 86 provides for the return of a motor vehicle that is incapable of being driven or is
unroadworthy and that is required to be returned under the proposed Division.
Clause 87 terminates a tied loan contract related to a contract terminated under the proposed
Division and enables regulations to be made with respect to termination of tied loan contracts.
Division 6 Sales of motor vehicles on consignment
Clause 88 defines consignor and trust account.
Clause 89 requires a motor dealer to notify the Secretary in writing if the motor dealer proposes
to commence selling motor vehicles on consignment and provides that notice may be given in an
application for a licence.
Clause 90 requires a motor dealer who sells vehicles on consignment to establish a trust account
for amounts received for vehicles sold on consignment.
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Explanatory note
Clause 91 requires an amount equal to the amount received for the sale of a motor vehicle on
consignment to be paid to the trust account not later than the next business day after the amount
is received.
Clause 92 sets out the purposes for which money in a trust account may be used, including
payments to the consignor and of debts owed by the consignor to the consignee.
Clause 93 protects an authorised deposit-taking institution from liability for things done in
relation to any such trust account that do not comply with the proposed Division or regulations
made under the proposed Division.
Clause 94 requires a motor dealer to account to a consignor for a sale on consignment within
14 days of the sale or within such other period as the regulations may prescribe.
Clause 95 requires a motor dealer to ensure that the trust account is audited annually and enables
regulations to be made with respect to audit requirements.
Clause 96 enables the Secretary to require a motor dealer to provide an audit of a trust account
and to lodge security with the Secretary in respect of the sale of motor vehicles on consignment
by the motor dealer.
Division 7 Obligations of motor vehicle recyclers
Clause 97 requires a motor vehicle recycler who acquires a motor vehicle for demolition or
dismantling or a substantially demolished or dismantled motor vehicle to surrender any attached
number-plate to Roads and Maritime Services. A motor vehicle recycler is prohibited from selling
any such vehicle with a number-plate attached.
Clause 98 limits the motor vehicles that may be sold by motor vehicle recyclers to demolished or
dismantled motor vehicles, motor vehicles for private use by the motor vehicle recycler or
employees or motor vehicles that are used in the business of the motor vehicle recycler.
Clause 99 provides that a motor vehicle recycler must mark parts or accessories (prescribed by
the regulations) as soon as practicable after they are acquired or obtained.
Division 8 Record keeping obligations
Clause 100 requires the holder of a motor dealer's licence, a motor vehicle repairer's licence or a
motor vehicle recycler's licence to keep a register relating to the business.
Division 9 Suspicious goods
Clause 101 requires a licence holder, or any employee of a licence holder, to notify the Secretary
of any motor vehicle, motor vehicle part, accessory or other thing that is suspected of being stolen
or unlawfully obtained.
Clause 102 enables an authorised officer to issue a non-disposal notice to a licence holder
prohibiting, for 14 days, the alteration, sale or other disposal of a motor vehicle, motor vehicle
part, accessory or other thing that the officer has reasonable grounds to believe is stolen or
unlawfully obtained.
Division 10 Motor vehicle brokers' obligations
Clause 103 requires a motor vehicle broker to disclose any financial or other business relationship
with the supplier of a motor vehicle for which broking services are provided before those services
are provided.
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Explanatory note
Part 5 Remedies relating to conduct by motor dealers, motor
vehicle repairers and motor vehicle recyclers
Division 1 Unjust conduct by motor dealers, motor vehicle repairers
and motor vehicle recyclers
Clause 104 applies the proposed Division to the holder of a motor dealer's licence, a motor
vehicle repairer's licence or a motor vehicle recycler's licence.
Clause 105 defines unjust conduct to be conduct that is dishonest or unfair, is a breach of
contract, contravenes the proposed Act or regulations or any other Act or regulation administered
by the Minister or consists of a failure to comply with a licence or an order by the Tribunal.
Clause 106 enables the Secretary, with the consent of the Minister, to require a licence holder who
has repeatedly engaged in unjust conduct to enter into undertakings relating to previous unjust
conduct and future conduct. A licence holder who observes the undertakings is not liable for
disciplinary action for conduct the subject of the undertakings or to action for a Tribunal order.
Clause 107 requires the Secretary to lodge deeds setting out undertakings with the Tribunal and
to keep a Register of Undertakings.
Clause 108 confers on the Tribunal power to order a licence holder to refrain from engaging in
unjust conduct in the course of carrying on business as a motor dealer, motor vehicle repairer or
motor vehicle recycler. An order may be sought if a licence holder repeatedly engages in unjust
conduct or fails to observe an undertaking as to conduct. An order may extend to a director or
person concerned in the management of a body corporate that is a licence holder.
Clause 109 enables the Tribunal to vary or discharge an order, on the application of the Secretary.
Division 2 Disputes
Clause 110 defines complainant and extends the application of the proposed Division to former
motor dealers and former motor vehicle repairers.
Clause 111 applies the proposed Division to disputes relating to the dealer guarantee and to
disputes about repair work.
Clause 112 enables the Secretary, on application by a purchaser or owner of a motor vehicle who
is a party to a dispute, to attempt to resolve the dispute and to investigate the dispute if it is not
resolved.
Clause 113 enables the Secretary to make a rectification order requiring a motor dealer to make
good a defective vehicle or a motor vehicle repairer to complete or rectify repair work.
Clause 114 provides that a rectification order does not give rise to any rights or obligations.
Division 3 Rescission of motor vehicle sales and other orders
Clause 115 defines cash price and rescission order.
Clause 116 confers jurisdiction to make a rescission order in relation to the sale of a motor vehicle
on the Local Court and the District Court (depending on the cash price of the motor vehicle) and
on the Supreme Court.
Clause 117 enables a court to make an order rescinding the sale of a motor vehicle by a motor
dealer and requiring the return of the motor vehicle and repayment to the purchaser of amounts
paid by the purchaser, on application by the Secretary. The order may be made on specified
grounds, including a failure to comply with a dealer's notice and inspection report requirements
and the condition of the motor vehicle when it was sold.
Clause 118 enables a Local Court to make an order rescinding the sale of a motor vehicle by a
motor dealer and requiring the return of the motor vehicle and repayment to the purchaser of
amounts paid by the purchaser if a motor dealer is found guilty of an offence under proposed
Part 4 and the cash price of the motor vehicle did not exceed the Court's jurisdictional limit.
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Explanatory note
Clause 119 provides that the fact that the parties to a sale contract or an associated credit contract
cannot be restored to their previous positions is not a bar to the making of a rescission order.
Clause 120 transfers the liabilities and rights of a purchaser under a credit contract linked with a
sale contract or a sale contract the subject of a rescission order to the motor dealer.
Clause 121 prevents a court from making a rescission order unless the Secretary, a representative
of the Secretary and any other person likely to be affected by the making of the order has been
given an opportunity to be heard.
Division 4 Penalties for unlicensed motor dealers and motor vehicle
recyclers
Clause 122 defines forfeiture order, proceeds order and restraining order.
Clause 123 confers jurisdiction on a court that convicts a motor dealer or a motor vehicle repairer
of a licensing offence to make an order forfeiting a specified motor vehicle to which the offence
relates to the Crown (a forfeiture order) or ordering that the convicted person pay to the Crown
the proceeds of the offence or any other offence of that kind (a proceeds order). An amount paid
under a proceeds order is to be paid to the Compensation Fund.
Clause 124 provides for appeals against forfeiture orders and proceeds orders.
Clause 125 confers jurisdiction on a court in proceedings against a motor dealer or a motor
vehicle repairer for a licensing offence, or on a court that makes a proceeds order, to make an order
restraining the person from being prosecuted and any other specified person from disposing or
otherwise dealing with specified property. The Supreme Court may vary or revoke any restraining
order.
Division 5 Administration of motor dealers and motor vehicle recyclers
Clause 126 defines words and expressions used in the proposed Division.
Clause 127 confers jurisdiction on the Supreme Court to appoint an administrator for the affairs
(relating to the carrying on of a business for which a licence must be held) and property of a
licence holder if it is satisfied that there are grounds for suspending or cancelling the licence, that
the licence holder has repeatedly engaged in unjust conduct or that it is desirable in the public
interest to do so having regard to the circumstances of the licence holder.
Clause 128 confers jurisdiction on the Supreme Court to appoint an administrator for the affairs
(relating to the carrying on of a business for which a licence must be held) and property of a former
licence holder if the person's licence has been suspended or cancelled or it is satisfied that it is
necessary or desirable to protect the interests of persons who had dealings with the person.
Clause 129 provides for notification of the order appointing an administrator.
Clause 130 refers to proposed Schedule 1 which contains further provisions relating to the
functions of an administrator and the conduct of administration.
Clause 131 makes it an offence for a person, without reasonable excuse, to obstruct, hinder or
delay an administrator exercising functions as an administrator.
Clause 132 sets out the circumstances in which an administrator vacates office.
Clause 133 enables the Supreme Court to revoke the appointment of an administrator on the
application of the administrator, the Secretary or the person subject to administration.
Clause 134 provides for the Supreme Court to make orders transferring property when an
administration is terminated or a new administrator is appointed.
Clause 135 provides for the Supreme Court to make orders transferring property to the person
who was subject to administration where the administrator vacates office and no new
administrator is appointed.
Clause 136 requires an order by the Supreme Court that transfers property formerly under
administration to provide for the payment of the costs of the administrator by the person who was
subject to administration.
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Clause 137 confers on the Supreme Court power to make additional orders necessary to enable an
administrator to administer the affairs and property of a person.
Clause 138 gives a person who is subject to an application for administration or to an application
for other orders relating to the administration a right to be given a copy of the originating process
and to appear and be heard by the Supreme Court.
Clause 139 makes it an offence, for the purpose of defeating the purposes of the proposed
Division, to withdraw money or make payments from accounts and to destroy or conceal or
remove property or to deliver it to another person. It will also be an offence to withdraw money
from or make a payment from an account, or to destroy or conceal or remove property subject to
an administration order or to deliver it to another person without the authority of the administrator.
Clause 140 enables an application to be made to the Supreme Court for a direction as to the
exercise of functions by an administrator.
Part 6 Unfair contracts and unjust conduct affecting motor
dealers
Clause 141 defines words and expressions used in the proposed Part.
Clause 142 provides that a term of a supply contract for the supply of motor vehicles to a motor
dealer by a manufacturer is unfair if it would cause a significant imbalance in the parties' rights
and obligations, is not reasonably necessary to protect the interests of the advantaged party and
would cause financial or other detriment to a party if relied on. The provision also sets out
examples of unfair provisions.
Clause 143 provides that conduct of a manufacturer is unjust if it occurs in connection with a
supply contract and is dishonest or unfair or is authorised by an unfair term of a supply contract.
Clause 144 enables a motor industry group (representing motor dealers) or a motor dealer to raise
a dispute with a manufacturer about an unfair term of a supply contract or class of supply contracts
or unjust conduct by a manufacturer with the Small Business Commissioner. The dispute will be
dealt with under the procedures under the Small Business Commissioner Act 2013 that provide for
mediation and certification by the Commissioner when a dispute cannot be resolved.
Clause 145 enables a motor industry group or the Small Business Commissioner or a motor dealer
to apply to the Tribunal for a declaration that a term of a supply contract or class of supply
contracts is unfair or a motor dealer to apply for such a declaration about a term of a particular
supply contract. An application can only be made if there has been a certification by the Small
Business Commissioner about the matter.
Clause 146 confers jurisdiction on the Tribunal to make such a declaration after taking into
account all the circumstances of the case. Among other things, the Tribunal may consider whether
another party to the supply contract exerted undue influence, unfair pressure or unfair tactics on
the motor dealer.
Clause 147 sets out the orders the Tribunal may make if it makes such a declaration, including
orders declaring part or the whole of supply contracts to be void, varying supply contracts,
directing parties to supply contracts to take or not take actions and ordering the payment of
compensation.
Clause 148 makes it clear that the proposed Part does not limit or restrict any other law that
provides for relief against unjust conduct or unfair contract terms.
Part 7 Enforcement and offences
Division 1 Inspection powers
Clause 149 enables authorised officers to be appointed by the Secretary and also makes the
Secretary, police officers and other members of the NSW Police Force, investigators appointed
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Motor Dealers and Repairers Bill 2013 [NSW]
Explanatory note
under the Fair Trading Act 1987 and persons authorised by the Chief Executive of Roads and
Maritime Services authorised officers.
Clause 150 specifies that the powers of authorised officers are to be used for ascertaining whether
the proposed Act or the regulations under the proposed Act are being or have been contravened,
investigating complaints and for other related purposes.
Clause 151 sets out the powers of entry and investigation of authorised officers.
Clause 152 enables an authorised officer, by notice in writing, to require documents to be
produced.
Clause 153 confers on police officers a power of entry and search in connection with stolen motor
vehicles and stolen parts and accessories for motor vehicles.
Clause 154 enables an authorised officer to obtain a search warrant to search premises if the
officer believes on reasonable grounds that a provision of the proposed Act or the regulations is
being or has been contravened on the premises.
Clause 155 sets out offences related to failure to comply with requirements made, or to answer
questions by, an authorised officer or police officer under the proposed Division, as well as other
related offences.
Division 2 Proceedings for offences
Clause 156 limits the persons who may take proceedings for offences under the proposed Act to
the Secretary and the Chief Executive of Roads and Maritime Services (or persons acting on their
behalf) and police officers. Offences are to be dealt with summarily, and with certain exceptions,
must be commenced within 1 year of the alleged time when the offences are committed. There
will be a 3-year period for commencing proceedings for licensing and odometer offences.
Clause 157 enables a court that finds a person guilty of an offence against the proposed Act or the
regulations to make determinations and orders, in addition to any penalty imposed, including
orders for the payment of compensation and the carrying out of work.
Clause 158 enables penalty notices to be issued for offences under the proposed Act that are
prescribed by the regulations.
Division 3 Liability of persons involved in corporations
Clause 159 makes a person who is a director of a corporation or involved in the management of
a corporation and in a position to influence relevant conduct liable for an offence if the corporation
commits a motor vehicle repairer licensing offence or permits or arranges repair work to be done
by an unlicensed person and the person knows or ought reasonably to know that the offence would
be or is being committed and fails to take reasonable steps to prevent or stop the offence.
Clause 160 makes a person who is a director of a corporation or involved in the management of
a corporation and in a position to influence relevant conduct liable for an offence if the corporation
commits an offence against the proposed Act or the regulations and the person aids, abets,
procures or induces the offence, conspires to have the offence committed or is in any other way
knowingly concerned in or party to the offence.
Division 4 Evidentiary provisions
Clause 161 provides for the use of evidentiary certificates as evidence of licensing matters or
exemptions under the proposed Act in court proceedings and before other persons and bodies that
receive evidence.
Clause 162 makes the contents of registers kept under the proposed Act evidence of the matters
contained in them.
Clause 163 provides for specified conduct relating to the sale of motor vehicles to be evidence of
carrying on business as a motor dealer and for certain publications to be evidence of advertising
for the purposes of related offences under the proposed Act.
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Motor Dealers and Repairers Bill 2013 [NSW]
Explanatory note
Part 8 Motor Dealers and Repairers Compensation Fund
Clause 164 defines a failure to account by a motor dealer.
Clause 165 provides for the establishment of the Compensation Fund.
Clause 166 sets out the amounts to be paid to the Compensation Fund, including licence fees and
contributions after disciplinary action.
Clause 167 sets out the amounts to be paid from the Compensation Fund, including losses
certified by the Secretary under the proposed Part and legal and administrative costs.
Clause 168 specifies the losses for which a person may claim compensation from the
Compensation Fund, including losses incurred because of incompetent repair work, a
contravention or breach of contract by a motor dealer or a failure to give an unencumbered title to
a motor vehicle.
Clause 169 sets out the procedure for making claims for compensation.
Clause 170 empowers the Secretary to determine claims for compensation and provides that a
claim may be disallowed to the extent that loss was suffered because of failure to mitigate it or
delay in making a claim. A claim must be disallowed unless the person against whom the claim
was made was licensed or reasonably thought to be licensed.
Clause 171 enables the Secretary to certify an amount of loss not exceeding $40,000.
Clause 172 provides for the Secretary, at the request of a claimant, to review a disallowed claim.
Clause 173 subrogates the Crown to all the rights and remedies of a claimant in respect of the
claim, if payment is made to the claimant. The amount paid is taken to be a debt due to the Crown
and the Secretary may take action on behalf of the Crown.
Clause 174 enables the Secretary to recover amounts payable by a corporation as a result of a
payment from the Compensation Fund from the directors of the corporation at the time the
relevant conduct occurred.
Clause 175 provides for payments and priorities of payments from the Compensation Fund when
the Compensation Fund is not sufficient to account for the amounts payable from the
Compensation Fund.
Part 9 Miscellaneous
Clause 176 confers jurisdiction on the Administrative Decisions Tribunal to review licensing
decisions made by the Secretary.
Clause 177 requires the Secretary to keep a register of licences issued under the proposed Act.
Clause 178 makes it an offence to disclose information obtained in connection with the
administration or execution of the proposed Act except with the consent of the person concerned
or in other specified circumstances.
Clause 179 makes it clear that the proposed Act does not limit, restrict or otherwise affect any
other right or remedy of a person under any other law.
Clause 180 provides that the provisions of the proposed Act prevail over any attempt by a contract
to annul, vary or exclude the provisions.
Clause 181 prohibits a motor dealer from obtaining an indemnity from the previous owner of a
motor vehicle in relation to costs or expenses incurred by the motor dealer because of the proposed
Act.
Clause 182 requires the NSW Police Force and Roads and Maritime Services to provide
information to the Secretary for the purposes of licensing, disciplinary proceedings, investigations
or law enforcement under the proposed Act. The Secretary will also have a duty to supply
information to police for law enforcement purposes and may enter into agreements with other
jurisdictions for the supply of information.
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Motor Dealers and Repairers Bill 2013 [NSW]
Explanatory note
Clause 183 makes it an offence to enter information in a register knowing it to be false or
misleading in a material particular.
Clause 184 makes it an offence to submit a document for signature by a person, being evidence
of the sale of a motor vehicle, unless all material particulars in the document have been completed.
Clause 185 sets out the manner in which documents may be served under the proposed Act.
Clause 186 enables the Governor to make regulations for the purposes of the proposed Act.
Clause 187 enables the Secretary to delegate his or her functions under the proposed Act.
Clause 188 excludes the Secretary, an authorised officer and persons acting under their direction
from personal liability for acts or omissions done in good faith for the purposes of administering
the proposed Act.
Clause 189 provides that the proposed Act is to bind the Crown.
Clause 190 repeals the Motor Dealers Act 1974 and the Motor Vehicle Repairs Act 1980.
Clause 191 provides for the review of the proposed Act in 5 years.
Schedule 1 Administration of businesses
Schedule 1 contains additional provisions relating to the powers that may be exercised by an
administrator of the affairs and property of a licence holder.
Schedule 2 Savings, transitional and other provisions
Schedule 2 contains savings, transitional and other provisions consequent on the enactment of the
proposed Act.
Schedule 3 Consequential amendment of other Acts
Schedule 3 amends the Acts specified in the Schedule.
Page 14
First print
New South Wales
Motor Dealers and Repairers Bill 2013
Contents
Page
Part 1 Preliminary
1 Name of Act 2
2 Commencement 2
3 Objects of Act 2
4 Definitions 2
5 Motor dealers 4
6 Motor vehicle repairers 4
7 Meaning of "carrying on a business" 5
8 Meaning of "close associate" 5
9 Motor vehicles exempted from Act 6
Part 2 Licences
Division 1 Offences
10 Definitions 7
11 Unlicensed motor dealers 7
12 Unlicensed motor vehicle repairers 7
13 Unlicensed motor vehicle recyclers 7
14 No offence if partner holds licence 7
15 Repair work must be done by licensed motor vehicle repairers 8
16 Repair work must be done by holder of tradesperson's certificate 8
17 Holding out 8
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Motor Dealers and Repairers Bill 2013 [NSW]
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18 Transfer or loan of tradesperson's certificate 8
19 Production of licences and certificates 9
Division 2 Licences generally
20 Types of licences 9
21 Application of Licensing and Registration (Uniform Procedures) Act 2002 9
22 Multiple licences 9
Division 3 Grant and refusal of licence applications
23 Investigation of applications 9
24 Application fees 10
25 Grounds for refusal--licences other than tradespersons' certificates 10
26 Mandatory grounds for refusal--tradespersons' certificates 11
27 Criteria for being fit and proper person to hold a licence 11
Division 4 Terms of licences
28 Motor dealer's licence 12
29 Motor vehicle repairer's licence 12
30 Motor vehicle recycler's licence 12
31 Tradesperson's certificate 12
32 Conditions of licences 12
33 Duration of licence 12
34 Amendment of licences 12
35 Surrender of licences 12
36 Duplicate licences 13
37 Change in place of business to be notified to Secretary 13
Part 3 Disciplinary provisions
Division 1 Grounds for disciplinary action
38 Grounds for disciplinary action--all licences 14
39 Additional grounds for disciplinary action--motor dealers' licences,
motor vehicle repairers' licences and motor vehicle recyclers' licences 14
40 Additional grounds for disciplinary action--tradespersons' certificates 15
Division 2 Disciplinary process
41 Show cause notice 15
42 Power to suspend licence when show cause notice given 15
43 Inquiries and investigations 16
44 Decision to take no further action 16
45 Secretary may take disciplinary action 16
46 Mandatory licence cancellations 16
47 Offences 17
Part 4 Obligations relating to sale, recycling and repair of motor
vehicles
Division 1 Sale of motor vehicles generally
48 Motor vehicles must be sold at licensed premises 18
49 Failure to disclose being motor dealer 18
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Motor Dealers and Repairers Bill 2013 [NSW]
Contents
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50 Representations and other Acts by employees or agents of
motor dealers 19
51 Misrepresentations about manufacture, registration or model of
motor vehicle 19
52 Odometer tampering 19
53 Devices to facilitate odometer tampering 20
54 Suspected odometer tampering 20
Division 2 Inspection report and number-plate requirements
55 Application of Division 21
56 Current inspection reports 21
57 Sale at auction with number-plates 21
58 Other sales with number-plates 21
59 Sales of motor vehicles without number-plates attached 21
Division 3 Dealers' notices
60 Application of Division 22
61 Definition of "demonstrator motor vehicle" 22
62 Dealers' notices--disclosure and other requirements 22
63 Sale notices for second-hand motor vehicles (other than motor
cycles or demonstrator motor vehicles) 22
64 Sale notices for second-hand motor cycles and demonstrator
motor vehicles 23
65 Damage notice for new vehicles 23
66 Defences 24
Division 4 Defects in motor vehicles sold by motor dealers
67 Definitions 24
68 Dealer guarantee for defective vehicles 24
69 Limitation periods 25
70 Variation of distance and time limits by regulation 26
71 Enforcement of dealer guarantee 26
72 Motor vehicles for which there is no dealer guarantee 26
73 Damage not covered by dealer guarantee 26
74 No dealer guarantee for second-hand motor vehicles where
defect notice and inspection report attached 27
75 Other motor dealer not liable 27
76 Motor dealer liable for loss or damage during guarantee repairs 27
77 Effect on Australian Consumer Law remedies 28
Division 5 Dealer-financed purchases of motor vehicles
78 Application of Division to dealer-financed purchases 28
79 Definitions 28
80 Cooling off period for dealer-financed purchases 28
81 Right to terminate contract during cooling off period 28
82 Waiver of cooling off period 29
83 Motor dealer may not dispose of trade-in during cooling off period 29
84 Obligations of motor dealer on termination 29
85 Obligations of purchaser on termination 29
86 Return of motor vehicles 29
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Motor Dealers and Repairers Bill 2013 [NSW]
Contents
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87 Termination of tied loan contracts 30
Division 6 Sales of motor vehicles on consignment
88 Definitions 30
89 Motor dealer must notify consignment sales 30
90 Trust account to be established 30
91 Payment of consignment sale amounts to trust account 30
92 Application of money in dealer's trust account 30
93 Protection of authorised deposit-taking institutions from liability 31
94 Period for accounting to consignor 31
95 Audit of dealer's trust account 31
96 Special audit of dealer's trust account 31
Division 7 Obligations of motor vehicle recyclers
97 Number-plates on motor vehicles acquired by motor vehicle recyclers 31
98 Sale of motor vehicles by motor vehicle recyclers 32
99 Certain parts or accessories to be marked 32
Division 8 Record keeping obligations
100 Registers must be kept by motor dealers, motor vehicle recyclers
and motor vehicle repairers 32
Division 9 Suspicious goods
101 Duty to report suspicious goods 33
102 Retention of suspicious goods 33
Division 10 Motor vehicle brokers' obligations
103 Motor vehicle brokers' obligations 33
Part 5 Remedies relating to conduct by motor dealers, motor vehicle
repairers and motor vehicle recyclers
Division 1 Unjust conduct by motor dealers, motor vehicle
repairers and motor vehicle recyclers
104 Application of Division 34
105 Meaning of "unjust conduct" 34
106 Undertakings by licence holder 34
107 Register of undertakings 35
108 Restraint of unjust conduct 35
109 Variation or discharge of restraining order 35
Division 2 Disputes
110 Definitions 35
111 Disputes to which Division applies 36
112 Investigation of disputes 36
113 Secretary may make rectification order 36
114 Effect of rectification order 37
Division 3 Rescission of motor vehicle sales and other orders
115 Definitions 37
116 Conferral of jurisdiction on courts 37
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Motor Dealers and Repairers Bill 2013 [NSW]
Contents
Page
117 Rescission orders 37
118 Rescission orders after findings of guilt 38
119 Difficulty of restoring position no bar to rescission order 38
120 Effect of rescission orders on rights 38
121 Secretary and others have right to be heard before rescission order 39
Division 4 Penalties for unlicensed motor dealers and motor
vehicle recyclers
122 Definitions 39
123 Forfeiture of motor vehicles and proceeds by unlicensed motor
dealers and motor vehicle recyclers 39
124 Appeals against forfeiture and proceeds orders 40
125 Temporary restraint on disposition of property 40
Division 5 Administration of motor dealers and motor vehicle
recyclers
126 Definitions 40
127 Appointment of administrator for holder of licence 41
128 Appointment of administrator for former holder of licence 41
129 Notification of appointment of administrator 41
130 Functions of administrator 42
131 Obstruction of administrator 42
132 Vacation of office by administrator 42
133 Revocation of appointment of administrator 42
134 Transfer of property under administration after revocation 42
135 Transfer of property under administration after vacation
without revocation 43
136 Orders to provide for payment of administrator's costs 43
137 Power of Supreme Court to make certain orders 43
138 Person entitled to be heard 43
139 Improper withdrawal of money etc 43
140 Application to Supreme Court for directions 44
Part 6 Unfair contracts and unjust conduct affecting motor dealers
141 Definitions 45
142 Unfair contracts 45
143 Unjust conduct 46
144 Complaints to Small Business Commissioner 46
145 Applications to Tribunal about unfair supply contracts and
unjust conduct 46
146 Declarations by Tribunal 46
147 Orders by Tribunal if term declared unfair or conduct
declared unjust 47
148 Operation of other laws 48
Part 7 Enforcement and offences
Division 1 Inspection powers
149 Authorised officers 49
150 Purposes for which powers of authorised officer may be exercised 49
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151 Powers of entry, inspection etc 49
152 Power of authorised officer to obtain information, records
and evidence 50
153 Police entry power 50
154 Search warrants 51
155 Obstruction and other related offences 51
Division 2 Proceedings for offences
156 Proceedings 52
157 Additional orders after findings of guilt 52
158 Penalty notices 52
Division 3 Liability of persons involved in corporations
159 Liability of directors etc for offences by corporation--offences
attracting executive liability 53
160 Liability of directors etc for offences by corporation--accessory
to the commission of the offences 54
Division 4 Evidentiary provisions
161 Evidence of licensing matters and exemptions 55
162 Evidence as to entries in registers 55
163 Evidence of carrying on business as motor dealer and advertising 56
Part 8 Motor Dealers and Repairers Compensation Fund
164 Meaning of "failure to account" by motor dealer 57
165 Motor Dealers and Repairers Compensation Fund 57
166 Money payable to Compensation Fund 57
167 Money payable from Compensation Fund 57
168 Matters for which claims may be made 58
169 Making of claims 58
170 Determination of claims 58
171 Certification of loss 59
172 Review of claim determinations 59
173 Subrogation 59
174 Recovery of payments from directors 60
175 Deferral of Compensation Fund payments 60
Part 9 Miscellaneous
176 Reviews by Administrative Decisions Tribunal 61
177 Register of licences 61
178 Disclosure of information 61
179 Saving of rights and remedies under other law 62
180 Contracting out void 62
181 No indemnity for motor dealers by previous owners 62
182 Provision of information 62
183 False or misleading register entries 63
184 Tender of documents for signature 63
185 Service of documents 63
186 Regulations 63
187 Delegation 64
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188 Exclusion of personal liability 64
189 Act to bind Crown 65
190 Repeals 65
191 Review of Act 65
Schedule 1 Administration of businesses 66
Schedule 2 Savings, transitional and other provisions 71
Schedule 3 Consequential amendment of other Acts 75
Page 7
New South Wales
Motor Dealers and Repairers Bill 2013
No , 2013
A Bill for
An Act with respect to the licensing and conduct of motor dealers, motor vehicle repairers, motor
vehicle recyclers and motor vehicle repair tradespersons; to repeal the Motor Dealers Act 1974
and the Motor Vehicle Repairs Act 1980; and for other purposes.
Motor Dealers and Repairers Bill 2013 [NSW]
Part 1 Preliminary
The Legislature of New South Wales enacts: 1
Part 1 Preliminary 2
1 Name of Act 3
This Act is the Motor Dealers and Repairers Act 2013. 4
2 Commencement 5
(1) This Act commences on a day or days to be appointed by proclamation, except as 6
provided by this section. 7
(2) Part 6 commences on the date of assent to this Act. 8
3 Objects of Act 9
The objects of this Act are as follows: 10
(a) to provide consumer protections and remedies for consumers who purchase 11
motor vehicles from motor dealers or obtain motor vehicle repair services, 12
(b) to establish appropriate standards of conduct and transparency for motor 13
dealers, motor vehicle repairers and motor vehicle recyclers, 14
(c) to provide enforcement mechanisms to prevent misleading or dishonest 15
conduct and illegal dealings with motor vehicles and parts, 16
(d) to provide protection for motor dealers against unfair contract dealings by 17
motor vehicle manufacturers. 18
4 Definitions 19
(1) In this Act: 20
accessories means additional parts, or fittings, for the purpose of enhancing the 21
comfort, appearance or performance of motor vehicles, including sound and internet 22
devices, navigation devices, air conditioning units and spare wheels and tools usually 23
carried on motor vehicles, but not including parts or fittings prescribed by the 24
regulations for the purposes of this definition. 25
approved means approved by the Secretary. 26
authorised officer--see section 149. 27
carrying on a business--see section 7. 28
close associate--see section 8. 29
Compensation Fund means the Motor Dealers and Repairers Compensation Fund 30
established under section 165. 31
credit contract has the same meaning as it has in the National Credit Code. 32
criminal intelligence means information classified by the Commissioner of Police as 33
criminal intelligence within the meaning of the Crimes (Criminal Organisations 34
Control) Act 2012, or declared by the Supreme Court under that Act to be criminal 35
intelligence. 36
current inspection report--see section 56. 37
deal means buy, sell or exchange. 38
dealer guarantee means the obligation imposed by section 68 (1). 39
dealer's notice--see section 62. 40
demonstrator motor vehicle--see section 61. 41
disciplinary action--see section 45 (1). 42
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Motor Dealers and Repairers Bill 2013 [NSW]
Part 1 Preliminary
financier means a person (other than a person prescribed by the regulations for the 1
purposes of this definition) who carries on the business of dealing in motor vehicles 2
only in connection with any of the following: 3
(a) the provision of credit (within the meaning of the National Credit Code), 4
whether or not that Code applies to the provision of that credit, 5
(b) the letting of motor vehicles to other persons for periods of 3 months or more 6
without an option to purchase, 7
(c) any other purpose prescribed by the regulations. 8
function includes a power, authority or duty, and exercise a function includes 9
perform a duty. 10
inspection report for a motor vehicle means an inspection report for the motor 11
vehicle issued in accordance with the requirements of Roads and Maritime Services 12
for vehicle registration purposes or a report prescribed by the regulations for the 13
purposes of this definition. 14
licence means the following: 15
(a) a motor dealer's licence, 16
(b) a motor vehicle repairer's licence, 17
(c) a motor vehicle recycler's licence, 18
(d) a tradesperson's certificate. 19
licence holder means a person who is for the time being the holder of a licence. 20
linked credit provider has the same meaning as it has in the National Credit Code. 21
motor dealer--see section 5. 22
motor dealer's licence means a motor dealer's licence in force under this Act. 23
motor vehicle means a vehicle of the following kind that is built to be propelled by a 24
motor that forms part of the vehicle, and includes a trailer: 25
(a) any description of vehicle on wheels, other than a vehicle used on a railway or 26
tramway or an aircraft, 27
(b) any description of tracked vehicle, or any description of vehicle that moves on 28
revolving runners inside endless tracks, that is not used exclusively on a 29
railway or tramway. 30
Note. Section 9 exempts certain motor vehicles from this Act. 31
motor vehicle broker--see section 103. 32
motor vehicle recycler means a person who carries on one or more of the following 33
businesses: 34
(a) buying or obtaining motor vehicles or parts or accessories of motor vehicles 35
and demolishing or dismantling the motor vehicles or parts or accessories, 36
(b) buying and selling major body and mechanical components of motor vehicles, 37
major car accessories and parts or accessories of motor vehicles prescribed by 38
the regulations for the purposes of this definition. 39
motor vehicle recycler's licence means a motor vehicle recycler's licence in force 40
under this Act. 41
motor vehicle repairer--see section 6. 42
motor vehicle repairer's licence means a motor vehicle repairer's licence in force 43
under this Act. 44
motor vehicle stealing offence--see section 25 (6). 45
National Credit Code means the National Credit Code set out in Schedule 1 to the 46
National Consumer Credit Protection Act 2009 of the Commonwealth. 47
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Motor Dealers and Repairers Bill 2013 [NSW]
Part 1 Preliminary
number-plate means a number-plate issued under a law of this State or a law of 1
another State or a Territory. 2
owner of a motor vehicle means a person who: 3
(a) is the sole owner, joint owner or part owner of the motor vehicle, or 4
(b) has possession or use of the motor vehicle under a credit, hire-purchase, lease 5
or other agreement, except an agreement requiring the motor vehicle to be 6
registered in the name of someone else. 7
property includes real and personal property and money. 8
registered means registered under a law for the registration of vehicles of this State 9
or another State or a Territory. 10
repair includes examine, detect faults in, adjust, carry out maintenance on, overhaul, 11
replace, alter and paint. 12
repair work--see section 6 (2). 13
second-hand motor cycle means a motor cycle that is a second-hand motor vehicle. 14
second-hand motor vehicle includes a motor vehicle that, at any time before being 15
offered or displayed for sale, or sold, has been registered to a person other than the 16
purchaser, and includes a demonstrator motor vehicle. 17
Secretary means the head of the Public Service agency to which the administration 18
of this Act is assigned. 19
tradesperson's certificate means a tradesperson's certificate in force under this Act. 20
trailer means a vehicle that: 21
(a) is built to be towed, or is towed, by a motor vehicle, and 22
(b) is not capable of being propelled in the course of normal use on roads without 23
being towed by a motor vehicle, 24
whether or not its movement is aided by some other power source, but does not 25
include a motor vehicle being towed or a trailer having a tare weight of 250 kilograms 26
or less. 27
Tribunal means the Consumer, Trader and Tenancy Tribunal. 28
(2) In this Act, a reference to buying a thing includes buying that thing as a principal or 29
agent. 30
(3) Notes included in this Act do not form part of this Act. 31
5 Motor dealers 32
(1) A motor dealer means a person who carries on the business of dealing in motor 33
vehicles as a retailer or on a wholesale basis. 34
(2) A person who carries on the business of assembling or manufacturing motor vehicles 35
is not a motor dealer merely because the person sells any of those cars to a motor 36
dealer or a financier. 37
(3) A financier is not a motor dealer. 38
(4) A motor vehicle broker is not a motor dealer. 39
6 Motor vehicle repairers 40
(1) In this Act, motor vehicle repairer means a person who carries on the business of 41
carrying out repair work on motor vehicles. 42
(2) In this Act, repair work means work of a class or classes prescribed by the 43
regulations for the purposes of this section. 44
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Motor Dealers and Repairers Bill 2013 [NSW]
Part 1 Preliminary
(3) A person is not a motor vehicle repairer if the person carries out repair work only in 1
the course of employment with another person or on the person's own motor vehicle. 2
(4) This Act does not apply to any part of the business of a motor vehicle repairer that 3
involves repairs that are not repair work. 4
7 Meaning of "carrying on a business" 5
In this Act, a reference to a person carrying on a business includes a reference to the 6
person carrying on the business in partnership or by an employee, contractor, agent 7
or other person. 8
8 Meaning of "close associate" 9
(1) For the purposes of this Act, a person is a close associate of an applicant for a licence 10
or a licence holder if the person: 11
(a) holds or will hold any relevant financial interest, or is or will be entitled to 12
exercise any relevant power (whether in the person's own right or on behalf of 13
any other person), in the business of the applicant or licence holder that is or 14
will be carried on under the authority of the licence, and by virtue of that 15
interest or power is or will be able (in the opinion of the Secretary) to exercise 16
a significant influence over or with respect to the management or operation of 17
that business, or 18
(b) holds or will hold any relevant position, whether in the person's own right or 19
on behalf of any other person, in the business of the applicant or licence holder 20
that is or will be carried on under the authority of the licence, or 21
(c) is or will be engaged as a contractor or employed in the business of the 22
applicant or licence holder that is or will be carried on under the authority of 23
the licence. 24
(2) For the purposes of this section, a financial institution is not a close associate merely 25
because it has a relevant financial interest in relation to a business. 26
(3) The provisions of this section extend to relevant financial interests and relevant 27
powers even if those interests and powers are not payable, exercisable or otherwise 28
enforceable as a matter of law or equity, but are nevertheless payable, exercisable or 29
otherwise enforceable as a matter of fact. 30
(4) In this section: 31
relevant financial interest in a business means: 32
(a) any share in the capital of the business, or 33
(b) any entitlement to receive any income derived from the business, or to receive 34
any other financial benefit or financial advantage from the carrying on of the 35
business, whether the entitlement arises at law or in equity or otherwise, or 36
(c) any entitlement to receive any rent, profit or other income in connection with 37
the use or occupation of premises on which the business is or is to be carried 38
on (such as, for example, an entitlement of the owner of the premises at which 39
the business is carried on to receive rent as lessor of the premises). 40
relevant position means: 41
(a) the position of director, manager or secretary, or 42
(b) any other position, however designated, if it is an executive position. 43
relevant power means any power, whether exercisable by voting or otherwise and 44
whether exercisable alone or in association with others: 45
(a) to participate in any directorial, managerial or executive decision, or 46
(b) to elect or appoint any person to any relevant position. 47
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Motor Dealers and Repairers Bill 2013 [NSW]
Part 1 Preliminary
9 Motor vehicles exempted from Act 1
This Act does not apply to the following motor vehicles: 2
(a) a crane, hoist or conveyor, 3
(b) an excavator, road grader, road roller, bulldozer or forklift truck or other 4
machinery (other than a tractor), that is not constructed on a chassis of a type 5
normally used in the construction of a truck, 6
(c) a motor vehicle that is constructed or adapted for road construction or 7
maintenance (including cleaning, sweeping or watering). 8
Note. Other motor vehicles, persons or other things may be exempted from provisions of this 9
Act by the regulations (see section 186 (2) (a)). 10
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Motor Dealers and Repairers Bill 2013 [NSW]
Part 2 Licences
Part 2 Licences 1
Division 1 Offences 2
10 Definitions 3
In this Division: 4
transport service owner means a person (including a NSW Government agency) 5
who, for the purpose of any business carried on by the person, uses a motor vehicle 6
for the carriage of passengers or goods. 7
11 Unlicensed motor dealers 8
A person must not carry on, or advertise that the person carries on or is willing to 9
carry on, the business of a motor dealer unless: 10
(a) the person is the holder of a motor dealer's licence, and 11
(b) the business is carried on or proposed to be carried on at a place for which the 12
licence is granted, and 13
(c) the business is carried on or proposed to be carried on in accordance with the 14
licence. 15
Maximum penalty: 1,000 penalty units or, in the case of a second or subsequent 16
offence, 1,000 penalty units or imprisonment for 12 months, or both. 17
12 Unlicensed motor vehicle repairers 18
A person must not carry on, or advertise that the person carries on or is willing to 19
carry on, the business of a motor vehicle repairer unless: 20
(a) the person is the holder of a motor vehicle repairer's licence, and 21
(b) the business is carried on or proposed to be carried on at a place for which the 22
licence is granted, and 23
(c) the business is carried on or proposed to be carried on in accordance with the 24
licence. 25
Maximum penalty: 1,000 penalty units or, in the case of a second or subsequent 26
offence, 1,000 penalty units or imprisonment for 12 months, or both. 27
Note. An offence against this section committed by a corporation is an executive liability 28
offence attracting executive liability for a director or other person involved in the management 29
of the corporation--see section 159. 30
13 Unlicensed motor vehicle recyclers 31
A person must not carry on, or advertise that the person carries on or is willing to 32
carry on, the business of a motor vehicle recycler unless: 33
(a) the person is the holder of a motor vehicle recycler's licence, and 34
(b) the business is carried on or proposed to be carried on at a place for which the 35
licence is granted, and 36
(c) the business is carried on or proposed to be carried on in accordance with the 37
licence. 38
Maximum penalty: 1,000 penalty units or, in the case of a second or subsequent 39
offence, 1,000 penalty units or imprisonment for 12 months, or both. 40
14 No offence if partner holds licence 41
A person is not guilty of an offence under this Division relating to the carrying on of 42
a business if the person carries on a business in partnership with another person and 43
the other person complies with the requirements of this Division for that business. 44
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Part 2 Licences
15 Repair work must be done by licensed motor vehicle repairers 1
(1) A motor vehicle repairer or a transport service owner must not, in the course of 2
business, enter into an agreement for any repair work to be done by another person 3
who is not the holder of a motor vehicle repairer's licence. 4
Note. An offence against subsection (1) committed by a corporation is an executive liability 5
offence attracting executive liability for a director or other person involved in the management 6
of the corporation--see section 159. 7
(2) An insurer of a motor vehicle must not: 8
(a) enter into an agreement, or require the owner of the motor vehicle to enter into 9
an agreement, for any repair work to be done on the motor vehicle by any 10
person who does not hold a motor vehicle repairer's licence, or 11
(b) specify in the contract of insurance for the motor vehicle a motor vehicle 12
repairer who does not hold a motor vehicle repairer's licence. 13
(3) This section does not apply to a contract of employment or other agreement for the 14
provision of services as a contractor. 15
Maximum penalty: 20 penalty units. 16
16 Repair work must be done by holder of tradesperson's certificate 17
(1) A motor vehicle repairer, a motor dealer or a transport service owner must not permit 18
an employee of the person to do any repair work unless the person doing the work: 19
(a) holds a tradesperson's certificate for a class of repair work that includes that 20
work, or 21
(b) is doing the work in the course of an apprenticeship or traineeship under the 22
supervision of a person who holds a tradesperson's certificate for a class of 23
repair work that includes that work, or 24
(c) is doing the work in other circumstances prescribed by the regulations for the 25
purposes of this section. 26
Note. An offence against subsection (1) committed by a corporation is an executive liability 27
offence attracting executive liability for a director or other person involved in the management 28
of the corporation--see section 159. 29
(2) A motor vehicle repairer or a motor dealer must not personally do any repair work in 30
the course of the repairer's or dealer's business unless the repairer or dealer holds a 31
tradesperson's certificate for a class of repair work that includes that work. 32
Maximum penalty: 20 penalty units. 33
17 Holding out 34
(1) A person must not hold himself or herself out as the holder of a licence if the person 35
is not the holder of such a licence. 36
(2) A person must not hold himself or herself out as a person who is authorised to do a 37
class of repair work if the person is not the holder of a tradesperson's certificate 38
authorising that class of repair work. 39
Maximum penalty: 20 penalty units. 40
18 Transfer or loan of tradesperson's certificate 41
(1) The holder of a tradesperson's certificate must not: 42
(a) transfer, attempt to transfer or lend the certificate to another person, or 43
(b) allow the use of the certificate by another person. 44
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Motor Dealers and Repairers Bill 2013 [NSW]
Part 2 Licences
(2) A person must not: 1
(a) attempt to obtain the transfer to the person of a tradesperson's certificate, or 2
(b) attempt to borrow, or borrow or use, a tradesperson's certificate of which the 3
person is not the holder. 4
Maximum penalty: 20 penalty units. 5
19 Production of licences and certificates 6
(1) The holder of a motor dealer's licence, motor vehicle repairer's licence or motor 7
vehicle recycler's licence must not, without reasonable excuse, at the place of 8
business specified in the licence, fail to comply with a request to produce the licence 9
to an authorised officer. 10
(2) The holder of a tradesperson's certificate must not, without reasonable excuse, at any 11
place where the holder does repair work, fail to comply with a request to produce the 12
certificate to an authorised officer. 13
Maximum penalty: 10 penalty units. 14
Division 2 Licences generally 15
20 Types of licences 16
The Secretary may grant the following licences: 17
(a) a motor dealer's licence, 18
(b) a motor vehicle repairer's licence, 19
(c) a motor vehicle recycler's licence, 20
(d) a tradesperson's certificate. 21
21 Application of Licensing and Registration (Uniform Procedures) Act 2002 22
(1) Part 2 of the Licensing and Registration (Uniform Procedures) Act 2002 (the 23
Licensing Act) applies to and in respect of a licence, subject to the modifications and 24
limitations prescribed by this Act or the regulations. 25
(2) A licence may be amended under the Licensing Act. 26
(3) An application for restoration of a licence under section 10 of the Licensing Act may 27
not be made more than 3 months after the date on which the licence expires. 28
(4) The regulations may make provision for or with respect to such matters concerning 29
a licence as are relevant to Part 2 of the Licensing Act. 30
Note. The Licensing Act sets out procedures for the making of applications for licences and 31
the granting, renewal, restoration and replacement of licences. It also provides for the 32
provision of further information by applicants for licences, the withdrawal of applications and 33
the grant and refusal of applications. 34
22 Multiple licences 35
A person may hold 2 or more different licences under this Act. 36
Division 3 Grant and refusal of licence applications 37
23 Investigation of applications 38
(1) The Secretary may make any inquiries that the Secretary considers necessary in 39
relation to an application for a licence. 40
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Motor Dealers and Repairers Bill 2013 [NSW]
Part 2 Licences
(2) The Commissioner of Police must, at the request of the Secretary, investigate an 1
application for a licence and, as soon as practicable after completing the 2
investigation, report to the Secretary on the investigation. 3
24 Application fees 4
An application for a licence is to be accompanied by the fee prescribed by the 5
regulations for the application. 6
25 Grounds for refusal--licences other than tradespersons' certificates 7
(1) This section applies to motor dealers' licences, motor vehicle repairers' licences and 8
motor vehicle recyclers' licences. 9
(2) The Secretary must not grant a licence to an individual if the Secretary is satisfied of 10
any of the following: 11
(a) that the applicant is not over the age of 18, 12
(b) that the applicant is not a fit and proper person to hold a licence, 13
(c) that the applicant is a controlled member of a declared organisation, 14
Note. Controlled members are prohibited from applying for licences--see section 27 of 15
the Crimes (Criminal Organisations Control) Act 2012. 16
(d) that the applicant is an undischarged bankrupt, 17
(e) that the applicant does not have the qualifications, if any, prescribed by the 18
regulations for the purposes of the licence concerned, 19
(f) that the applicant has (as an adult) been found guilty, within the preceding 20
10 years, of a motor vehicle stealing offence. 21
(3) The Secretary must not grant a licence to an applicant that is a body corporate if the 22
Secretary is satisfied of any of the following: 23
(a) a director or person involved in the management of the body corporate, or any 24
other person who appears to the Secretary to have control or substantial 25
control of the body corporate, would, if the director or person applied for the 26
licence as an individual, be prohibited by this section from being granted the 27
licence, 28
(b) the officers of the body corporate do not have the qualifications, if any, 29
prescribed by the regulations for the purposes of the licence concerned, 30
(c) the reputation of the body corporate is such that it is not a fit and proper person 31
to hold a licence. 32
(4) The Secretary must not grant a licence to any applicant, if the Secretary is satisfied 33
of any of the following: 34
(a) that the applicant is not likely to carry on the business for which the licence is 35
sought honestly and fairly, 36
(b) that the carrying on of the business at any place to which the application for 37
the licence relates is unlawful for any reason. 38
(5) The Secretary may refuse to grant a licence to an applicant if the Secretary is satisfied 39
of any of the following: 40
(a) that a close associate of the applicant is not a fit and proper person to hold a 41
licence, 42
(b) that there is another licence in force in relation to the whole or a part of a place 43
of business to which the application for the licence relates. 44
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Motor Dealers and Repairers Bill 2013 [NSW]
Part 2 Licences
(6) In this Act: 1
motor vehicle stealing offence means an offence of, or relating to: 2
(a) stealing a motor vehicle (within the meaning of Division 5A of Part 4 of the 3
Crimes Act 1900), or 4
(b) receiving, or unlawful possession of, a motor vehicle within the meaning of 5
Division 5A of Part 4 of the Crimes Act 1900 or a motor vehicle part. 6
Note. Section 18 of the Licensing and Registration (Uniform Procedures) Act 2002 contains 7
the power to determine a licence application. 8
26 Mandatory grounds for refusal--tradespersons' certificates 9
(1) The Secretary must not grant a tradesperson's certificate to an individual if the 10
Secretary is satisfied of any of the following: 11
(a) that the applicant is not a fit and proper person to hold a licence, 12
(b) that the applicant does not have the required qualifications or experience for 13
the class of repair work for which the certificate is sought, 14
(c) that the applicant is an apprentice or trainee. 15
(2) The required qualifications for a class of repair work are the qualifications or 16
experience prescribed by the regulations for that class of repair work. 17
27 Criteria for being fit and proper person to hold a licence 18
(1) In determining whether a person is a fit and proper person to hold a motor dealer's 19
licence, a motor vehicle repairer's licence or a motor vehicle recycler's licence, the 20
Secretary may have regard to any of the following: 21
(a) whether the applicant has, in the preceding 10 years, been found guilty of an 22
offence involving fraud or dishonesty (whether in this State or elsewhere), 23
(b) whether proceedings for such an offence have been commenced against the 24
applicant but have not been finally determined, 25
(c) whether the applicant has been convicted of an offence against this Act or the 26
regulations or another Act administered by the Minister, 27
(d) whether the applicant has failed to pay any contribution or other payment 28
required to be paid by the applicant to the Compensation Fund under this Act. 29
(2) An applicant is not a fit and proper person to be the holder of any licence if the 30
Secretary has reasonable grounds to believe from information provided by the 31
Commissioner of Police in relation to the applicant that: 32
(a) the applicant is a member of, or regularly associates with one or more 33
members of, a declared organisation within the meaning of the Crimes 34
(Criminal Organisations Control) Act 2012, and 35
(b) the nature and circumstances of the applicant's relationship with the 36
organisation or its members are such that it could reasonably be inferred that 37
improper conduct that would further the criminal activities of the declared 38
organisation is likely to occur if the applicant is granted a licence. 39
(3) The Secretary is not, under this or any other Act or law, required to give any reasons 40
for refusing an application for a licence or taking disciplinary action against a person 41
because of subsection (2) to the extent that the giving of those reasons would disclose 42
any criminal intelligence. 43
(4) This section does not limit the grounds on which the Secretary may determine that a 44
person is not a fit and proper person to hold a licence. 45
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Motor Dealers and Repairers Bill 2013 [NSW]
Part 2 Licences
Division 4 Terms of licences 1
28 Motor dealer's licence 2
A motor dealer's licence is to specify the place or places of business at which the 3
licence holder may carry on the business of a motor dealer. 4
29 Motor vehicle repairer's licence 5
A motor vehicle repairer's licence is to specify the place or places of business at 6
which the licence holder may carry on the business of a motor vehicle repairer. 7
30 Motor vehicle recycler's licence 8
A motor vehicle recycler's licence is to specify the place or places of business at 9
which the licence holder may carry on the business of a motor vehicle recycler. 10
31 Tradesperson's certificate 11
A tradesperson's certificate is to specify the class or classes of repair work authorised 12
by the certificate. 13
32 Conditions of licences 14
(1) A licence is subject to any conditions imposed by the Secretary (when the licence is 15
granted or at any later time) or that are prescribed by the regulations. 16
(2) The Secretary may at any time, on the Secretary's own motion or on the application 17
of the holder of a licence, by notice in writing to the holder, revoke or vary a 18
condition of the licence imposed by the Secretary. 19
33 Duration of licence 20
(1) A licence has effect for the term specified in the licence (not exceeding 3 years) 21
unless it is sooner cancelled. 22
(2) The suspension of a licence does not affect the term of the licence. 23
34 Amendment of licences 24
(1) An application to amend a licence may seek to: 25
(a) add or remove a class of repair work from a tradesperson's certificate, or 26
(b) add or remove a place of business specified in a licence. 27
(2) An application to amend a licence is to be accompanied by the fee, if any, prescribed 28
by the regulations. 29
(3) The Secretary may refuse to grant an application to amend a licence on any ground 30
on which the Secretary may refuse to grant a licence in the terms of the proposed 31
amended licence. 32
35 Surrender of licences 33
(1) A licence holder may surrender the licence by giving it to the Secretary with a notice 34
in writing that the licence is surrendered. 35
(2) If a licence that is to be surrendered has been lost or destroyed, it is sufficient for this 36
section if the notice in writing sets out that fact. 37
(3) The surrender of a licence by the licence holder after the issue of a show cause notice 38
under Division 2 of Part 3 does not affect the taking of any disciplinary action by the 39
Secretary under that Division. For that purpose, the licence is taken not to have been 40
surrendered. 41
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Motor Dealers and Repairers Bill 2013 [NSW]
Part 2 Licences
36 Duplicate licences 1
The Secretary may issue a duplicate licence on payment of the fee prescribed by the 2
regulations if the Secretary is satisfied that the licence has been lost or destroyed. 3
37 Change in place of business to be notified to Secretary 4
The holder of a licence must give the Secretary notice in writing, within 14 days of 5
the change occurring, if the holder ceases to carry on a business authorised by the 6
licence at a place specified in the licence. 7
Maximum penalty: 20 penalty units. 8
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Motor Dealers and Repairers Bill 2013 [NSW]
Part 3 Disciplinary provisions
Part 3 Disciplinary provisions 1
Division 1 Grounds for disciplinary action 2
38 Grounds for disciplinary action--all licences 3
(1) The grounds on which disciplinary action may be taken against a licence holder or a 4
former licence holder are as follows: 5
(a) the person has contravened, or the Secretary has reasonable grounds to believe 6
that the person is likely to contravene, a provision of this Act or the regulations 7
or of any other Act administered by the Minister, 8
(b) the person has contravened, or the Secretary has reasonable grounds to believe 9
that the person is likely to contravene, a condition of the person's licence, 10
(c) the person is not a fit and proper person to hold a licence, 11
(d) if the person were not a licence holder, the Secretary would be required by this 12
Act to refuse an application by the person for the licence, 13
(e) the Secretary considers, in the light of evidence available to the Secretary, that 14
the person is probably receiving or dealing in stolen goods, 15
(f) the licence may have been improperly obtained or, when it was granted, there 16
may have been grounds for refusing to grant it. 17
(2) Disciplinary action must not be commenced against a former licence holder more 18
than 12 months after the person last ceased to be a licence holder. 19
39 Additional grounds for disciplinary action--motor dealers' licences, motor vehicle 20
repairers' licences and motor vehicle recyclers' licences 21
Disciplinary action may also be taken against the holder or a former holder of a motor 22
dealer's licence, a motor vehicle repairer's licence or a motor vehicle recycler's 23
licence on the following grounds: 24
(a) the business authorised by the licence has not been conducted in accordance 25
with standards for the supply of goods and services established under the 26
Australian Consumer Law (NSW), 27
(b) the business authorised by the licence has been carried on in a dishonest or 28
unfair manner, 29
(c) the person has not, for a period of 1 month or more, carried on business at a 30
place of business to which the licence relates, 31
(d) in the case of the holder or the former holder of a motor dealer's licence or 32
motor vehicle recycler's licence, the person has contravened section 73 (1) or 33
(3) of the Road Transport Act 2013 or the statutory rules made under Part 4.5 34
of that Act, 35
(e) in the case of the holder or the former holder of a motor vehicle repairer's 36
licence, the person has contravened, or the Secretary has reasonable grounds 37
to believe that the person is likely to contravene, section 98 of the Road 38
Transport Act 2013 or the statutory rules made under Part 4.5 of that Act, 39
(f) in the case of the holder or the former holder of a motor dealer's licence, there 40
has been undue delay, or unreasonable refusal, on the part of the person in 41
paying, applying or accounting for trust money as required by or under 42
Division 6 of Part 4, 43
(g) in the case of the holder or the former holder of a motor dealer's licence, there 44
are reasonable grounds for believing that there is a deficiency in a trust account 45
of the motor dealer maintained under Division 6 of Part 4, 46
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Motor Dealers and Repairers Bill 2013 [NSW]
Part 3 Disciplinary provisions
(h) the person has failed to comply with a rectification order made against the 1
person under Division 2 of Part 5, 2
(i) the person is contravening another law by carrying on business at a place of 3
business to which the licence relates, 4
(j) in the case of a body corporate, the body corporate: 5
(i) is in the course of being wound up, is a body corporate in respect of 6
which a receiver or other controller has been appointed or has entered 7
into a compromise or scheme of arrangement with its creditors, or 8
(ii) may, for any other reason, be unable to or be likely to become unable to 9
meet its liabilities. 10
40 Additional grounds for disciplinary action--tradespersons' certificates 11
Disciplinary action may also be taken against the holder of a tradesperson's 12
certificate on the ground that the person is not competent to do repair work of a class 13
to which the certificate relates. 14
Division 2 Disciplinary process 15
41 Show cause notice 16
(1) The Secretary may give a show cause notice to a person if the Secretary is of the 17
opinion that there are reasonable grounds to believe that there are grounds for taking 18
disciplinary action against the person. 19
(2) A show cause notice is a notice requiring a person to show cause why disciplinary 20
action should not be taken against the person under this Act on the grounds specified 21
in the notice. 22
(3) A show cause notice is to be in writing and is to specify a period of not less than 23
14 days after the notice is given as the period that the person to whom the notice is 24
directed has to show cause as specified in the notice. 25
(4) The person to whom a show cause notice is given may, within the period allowed by 26
the notice, make oral or written submissions to the Secretary in respect of the matters 27
to which the notice relates. In the case of a corporation, submissions may be made by 28
a director or officer of the corporation. 29
(5) Except as otherwise provided by this Act, the Secretary must not take disciplinary 30
action against a person unless the person has been given a show cause notice and the 31
Secretary has considered any submissions made in accordance with the show cause 32
notice. 33
42 Power to suspend licence when show cause notice given 34
(1) When a show cause notice is given to a person, the Secretary may by notice in writing 35
to the person suspend the person's licence pending a determination by the Secretary 36
of whether to take disciplinary action under this Act against the person. 37
(2) The Secretary may suspend a licence under this section only if satisfied that the 38
grounds for disciplinary action specified in the show cause notice would, if 39
established, justify the suspension or cancellation of the licence. 40
(3) The suspension must not be for a period of more than 60 days after the show cause 41
notice is given. 42
(4) The Secretary is not required to give a person an opportunity to be heard before 43
taking action against the person under this section. 44
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Motor Dealers and Repairers Bill 2013 [NSW]
Part 3 Disciplinary provisions
(5) The Secretary can revoke a suspension under this section at any time by notice in 1
writing to the suspended person. 2
(6) This section does not limit or otherwise affect any power to suspend a licence under 3
section 79A of the Fair Trading Act 1987. 4
43 Inquiries and investigations 5
The Secretary may, if the Secretary thinks fit, conduct inquiries and carry out 6
investigations in relation to the matters to which a show cause notice relates and the 7
submissions, if any, made by or on behalf of the person to whom the show cause 8
notice relates. 9
44 Decision to take no further action 10
(1) The Secretary may at any stage of a matter that is the subject of consideration under 11
this Part decide to take no further action whether or not the matter is the subject of a 12
complaint or a show cause notice and whether or not the Secretary determines that 13
there are grounds for taking disciplinary action in connection with the matter. 14
(2) This section does not apply to any circumstances in which this Division requires the 15
licence of a person to be cancelled. 16
45 Secretary may take disciplinary action 17
(1) The Secretary may take any of the following disciplinary actions against a person if 18
the Secretary is satisfied that there are grounds for taking disciplinary action against 19
the person: 20
(a) reprimand the person, 21
(b) direct the person to take specified action within a specified time in connection 22
with the conduct of a business or the exercise of functions under a licence, 23
(c) suspend the person's licence for a period not exceeding the unexpired term of 24
the licence, 25
(d) impose a condition on the person's licence, 26
(e) without limiting paragraph (b), require a licence holder to make a contribution 27
to the Compensation Fund of a specified amount or indemnify the Fund to the 28
extent specified by the Secretary in the event of a particular contingency 29
arising from the licence holder's activities, 30
(f) disqualify the person, either permanently or for a specified period, from being 31
a licence holder or involved in the direction, management or conduct of a 32
business for which a licence is required, 33
(g) cancel a licence. 34
(2) The disciplinary action is to be taken by order in writing given to the person against 35
whom the action is being taken. The order must specify the date on which the order 36
takes effect. 37
(3) The Secretary must cancel a licence if the Secretary disqualifies the licence holder 38
from being the holder of a licence. 39
46 Mandatory licence cancellations 40
The Secretary must cancel a licence under this Division if the Secretary is satisfied 41
that there are any of the following grounds for taking disciplinary action against the 42
licence holder: 43
(a) the licence holder (other than the holder of a tradesperson's certificate) has (as 44
an adult) been found guilty, within the preceding 10 years, of a motor vehicle 45
stealing offence, 46
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Motor Dealers and Repairers Bill 2013 [NSW]
Part 3 Disciplinary provisions
(b) the licence holder is not a fit and proper person to hold a licence. 1
Note. Section 27 sets out the criteria for determining whether a person is a fit and 2
proper person to hold a licence. 3
47 Offences 4
(1) A person who is disqualified under this Division from being involved in the 5
direction, management or conduct of a business must not act contrary to the 6
disqualification. 7
Maximum penalty: 20 penalty units. 8
(2) The holder or former holder of a licence suspended or cancelled under this Division 9
must not, without reasonable excuse, fail to return the licence to the Secretary within 10
7 days of the suspension or cancellation taking effect. 11
Maximum penalty: 20 penalty units. 12
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Motor Dealers and Repairers Bill 2013 [NSW]
Part 4 Obligations relating to sale, recycling and repair of motor vehicles
Part 4 Obligations relating to sale, recycling and repair of 1
motor vehicles 2
Division 1 Sale of motor vehicles generally 3
48 Motor vehicles must be sold at licensed premises 4
(1) Offence 5
The holder of a motor dealer's licence must not offer or display a motor vehicle for 6
sale at a place other than a place of business specified in the licence. 7
Maximum penalty: 20 penalty units. 8
(2) For the purposes of this section, the place of business specified in a motor dealer's 9
licence does not include a road or footpath in the immediate vicinity of the place of 10
business. 11
(3) Exception--trade shows 12
A person is not guilty of an offence against this section if a motor vehicle is offered 13
or displayed for sale at a trade show and the business carried on by the motor dealer 14
while participating in the trade show is limited to the following: 15
(a) advising persons with respect to the quality, performance and characteristics 16
of motor vehicles, 17
(b) making offers to, or receiving offers from, persons to enter into agreements for 18
the sale of motor vehicles (other than second-hand motor vehicles). 19
(4) Exceptions--requests by others 20
A person is not guilty of an offence against this section if a motor vehicle is offered 21
or displayed for sale at another place in response to an unsolicited request made by a 22
person to the motor dealer to display the motor vehicle at the other place or to carry 23
out all or part of the transactions relating to the sale or purchase of the motor vehicle 24
at that other place. 25
(5) Definitions 26
In this section: 27
second-hand motor vehicle does not include a second-hand tractor or self-propelled 28
agricultural machinery. 29
trade show means an event held at a place where a number of motor dealers, motor 30
vehicle manufacturers or other industry participants display motor vehicles. 31
49 Failure to disclose being motor dealer 32
(1) A motor dealer who sells a motor vehicle to another person and who fails to disclose 33
to that person the fact that the motor dealer is a motor dealer is guilty of an offence. 34
(2) An employee or agent of a motor dealer who sells a motor vehicle to another person 35
in that capacity is guilty of an offence if the employee or agent fails to disclose to the 36
person the fact that the sale is being made by or on behalf of a motor dealer. 37
(3) This section does not apply to the sale of a motor vehicle to a motor dealer, a motor 38
vehicle recycler or a financier. 39
Maximum penalty: 20 penalty units. 40
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Motor Dealers and Repairers Bill 2013 [NSW]
Part 4 Obligations relating to sale, recycling and repair of motor vehicles
50 Representations and other Acts by employees or agents of motor dealers 1
(1) A representation made in the course of a motor dealer's business by an employee or 2
agent of the motor dealer about a motor vehicle offered or displayed for sale by the 3
motor dealer is taken, for the purposes of this Act and the regulations, to have been 4
made by the motor dealer. 5
(2) If a provision of this Part requires a motor dealer to do a thing in relation to the sale 6
or proposed sale of a motor vehicle, the motor dealer is taken to have complied with 7
that provision if the thing is done on behalf of the motor dealer by an employee or 8
agent of the motor dealer. 9
51 Misrepresentations about manufacture, registration or model of motor vehicle 10
(1) False representations 11
A person must not, in connection with offering or displaying a motor vehicle for sale 12
or the sale of a motor vehicle, make a false representation of a kind specified in 13
subsection (2) knowing it to be false or misleading. 14
Maximum penalty: 20 penalty units. 15
(2) The false representations are as follows: 16
(a) a representation that the year of manufacture of the motor vehicle is a year 17
other than the actual year of manufacture of the motor vehicle, 18
(b) a representation that the year in which the motor vehicle was first registered is 19
a year other than the year in which the motor vehicle was actually first 20
registered, 21
(c) a representation that the model designation of the motor vehicle is a model 22
designation other than the actual model designation of the motor vehicle. 23
(3) Effect of other laws 24
This section does not affect the operation of Part 5 of the Fair Trading Act 1987 (as 25
in force before its repeal by the Fair Trading Amendment (Australian Consumer 26
Law) Act 2010), or Part 4-1 of the Australian Consumer Law (NSW). However, a 27
person cannot be prosecuted in respect of the same matter for an offence under this 28
section and either of those Parts. 29
(4) Compensation orders 30
A court that convicts a person of an offence under this section may, on its own motion 31
or on application by the prosecutor or a person who purchased the motor vehicle 32
relying on the false representation, order the convicted person to pay to the purchaser 33
an amount determined by the court as being the amount of the difference between the 34
sale price of the motor vehicle and its fair price at the time of the sale. 35
(5) Definition 36
In this section: 37
model designation means any words, figures, letters or symbols used by the 38
manufacturer of a motor vehicle to identify a motor vehicle of that model. 39
52 Odometer tampering 40
(1) Offence 41
A person must not: 42
(a) alter the reading on the odometer of a motor vehicle, or 43
(b) remove or replace the odometer of a motor vehicle, or 44
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(c) render the odometer of a motor vehicle inoperative or inaccurate by any 1
means. 2
Maximum penalty: 200 penalty units. 3
(2) It is presumed, in the absence of evidence to the contrary, that a defendant in 4
proceedings for an offence under this section committed the offence if it is proved in 5
those proceedings that: 6
(a) the defendant had possession of the motor vehicle, and 7
(b) at that time or soon after the motor vehicle ceased to be in the defendant's 8
possession, the odometer reading was less than the reading at the time the 9
defendant acquired possession of the motor vehicle. 10
(3) Defence 11
It is a defence in proceedings for an offence under this section if the defendant proves 12
that: 13
(a) the action was not taken by the defendant with the intent of enhancing the 14
apparent value of the motor vehicle for the purpose of sale, and 15
(b) the action was not taken by the defendant for any other fraudulent purpose. 16
(4) Repairs permitted 17
Despite any other provision of this section, the holder of a motor vehicle repairer's 18
licence may repair or replace an odometer if: 19
(a) the holder notifies the Secretary in the approved form of the repair or 20
replacement, and 21
(b) the reading on the repaired or replacement odometer is restored so that it 22
shows an accurate reading for the motor vehicle. 23
(5) Despite any other provision of this section, any person may repair or replace an 24
odometer if the repair or replacement: 25
(a) is approved by the Secretary or a person prescribed by the regulations for the 26
purposes of this section, and 27
(b) is in accordance with the approval. 28
(6) Compensation orders 29
A court that convicts a person of an offence under this section or section 53 may, on 30
its own motion or on application by the prosecutor or a person who purchased the 31
motor vehicle relying on the odometer reading of the motor vehicle, order the 32
convicted person to pay to the purchaser an amount determined by the court as being 33
the amount of the difference between the sale price of the motor vehicle and its fair 34
price at the time of the sale. 35
53 Devices to facilitate odometer tampering 36
A person must not fit to a motor vehicle a device capable of rendering the odometer 37
of the motor vehicle inoperative or inaccurate. 38
Maximum penalty: 200 penalty units. 39
54 Suspected odometer tampering 40
A licence holder or any employee of a licence holder who suspects on reasonable 41
grounds that the odometer reading of a motor vehicle in the licence holder's 42
possession may have been altered or be inaccurate must without unreasonable delay 43
inform the Secretary of that suspicion. 44
Maximum penalty: 50 penalty units. 45
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Division 2 Inspection report and number-plate requirements 1
55 Application of Division 2
(1) This Division applies to or in respect of the sale by auction or otherwise of a motor 3
vehicle. 4
(2) This Division does not apply to or in respect of the following motor vehicle sales: 5
(a) a sale of a motor vehicle that was registered for the first time, or the 6
registration of which was renewed, within 90 days of the sale concerned, 7
(b) a sale to a motor dealer, motor vehicle recycler or financier, 8
(c) a sale by a motor vehicle recycler of a substantially demolished or dismantled 9
motor vehicle. 10
(3) In this Division, auction of a motor vehicle includes a proposed auction, and sale of 11
a motor vehicle includes a proposed sale. 12
56 Current inspection reports 13
An inspection report is a current inspection report for a motor vehicle for the 14
purposes of this Act if it was issued within the period prescribed by the regulations 15
before the date on which it is being relied on. 16
57 Sale at auction with number-plates 17
(1) A person must not offer or display for sale, or sell, by auction a motor vehicle to 18
which a number-plate is attached unless a current inspection report is attached to the 19
vehicle in the manner prescribed by the regulations. 20
Maximum penalty: 20 penalty units. 21
(2) Despite subsection (1), a person may offer or display for sale, or sell, by auction a 22
motor vehicle without an attached current inspection report if: 23
(a) a notice in the form prescribed by the regulations is attached to the motor 24
vehicle in the manner prescribed by the regulations, and 25
(b) a current inspection report is provided to the purchaser by the person within 26
7 days following the sale, and 27
(c) the purchase price of the motor vehicle as accepted at auction or, if the sale 28
took place after the auction, as negotiated is not subsequently altered, and 29
(d) the purchaser is not required to meet any part of the cost of any repairs required 30
to be made to the motor vehicle in order to obtain the current inspection report. 31
58 Other sales with number-plates 32
(1) A motor dealer must not sell a motor vehicle to which a number-plate is attached 33
unless the motor dealer gives to the purchaser at or before the sale a current 34
inspection report for the motor vehicle. 35
Maximum penalty: 20 penalty units. 36
(2) This section does not apply to a sale by auction. 37
59 Sales of motor vehicles without number-plates attached 38
A motor dealer must not sell a motor vehicle without a number-plate attached unless 39
one of the following is displayed with the vehicle: 40
(a) a certificate or receipt for the surrender of the number-plates for the motor 41
vehicle issued by Roads and Maritime Services or by a person authorised by a 42
law of another State or a Territory to issue the certificate or receipt, 43
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(b) a declaration by the motor dealer in the form (if any) prescribed by the 1
regulations that sets out the reason for the absence of any number-plate and the 2
lack of such a certificate or receipt. 3
Maximum penalty: 20 penalty units. 4
Division 3 Dealers' notices 5
60 Application of Division 6
This Division does not apply to or in respect of the following motor vehicle sales: 7
(a) a sale by bona fide auction, 8
(b) a sale to a motor dealer, motor vehicle recycler or financier, 9
(c) a sale by a motor vehicle recycler of a substantially demolished or dismantled 10
motor vehicle, 11
(d) a sale to a motor vehicle recycler for the purpose of the motor vehicle being 12
wholly or partly demolished or dismantled. 13
61 Definition of "demonstrator motor vehicle" 14
In this Act: 15
demonstrator motor vehicle means a motor vehicle: 16
(a) that has been used only for a purpose connected with its manufacture or sale 17
or for the purpose of demonstrating the motor vehicle, or a motor vehicle of 18
that kind, to a potential purchaser, and 19
(b) that has not been sold to a person other than a motor dealer, and 20
(c) that has been registered only in the name of a motor dealer, a person on behalf 21
of a motor dealer or another person in anticipation of the sale of the motor 22
vehicle to that person. 23
62 Dealers' notices--disclosure and other requirements 24
(1) If a provision of this Act requires a dealer's notice, the notice provided must: 25
(a) be in the form prescribed by the regulations for the purposes of the provision 26
that requires the dealer's notice, and 27
(b) contain the particulars required to complete the form, but not contain 28
particulars that are false or misleading in a material particular. 29
(2) If this Act requires more than one dealer's notice to be attached or provided in the 30
same circumstances, the required dealers' notices must be combined in one notice. 31
(3) A holder of a motor dealer's licence is not liable for a contravention of a provision 32
of this Act that requires the attachment to, or provision of a dealer's notice for, a 33
motor vehicle that is sold on behalf of the holder by another motor dealer. 34
63 Sale notices for second-hand motor vehicles (other than motor cycles or 35
demonstrator motor vehicles) 36
(1) Application 37
This section does not apply to a second-hand motor cycle or a demonstrator motor 38
vehicle. 39
(2) Offences 40
A motor dealer must not offer or display for sale a second-hand motor vehicle unless 41
a dealer's notice is attached to the motor vehicle. 42
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(3) A motor dealer must not sell a second-hand motor vehicle unless: 1
(a) at or before the sale, the motor dealer and the purchaser sign the dealer's notice 2
required by this section, or a copy of the notice, and 3
(b) the motor dealer gives the purchaser the notice, or a copy, to keep. 4
Maximum penalty (subsections (2) and (3)): 20 penalty units. 5
(4) Motor vehicles on premises presumed to be for sale 6
In any proceedings for an offence under subsection (2), it is presumed in the absence 7
of evidence to the contrary, that a second-hand motor vehicle found at a place at 8
which a motor dealer is licensed to carry on business as a motor dealer is offered or 9
displayed for sale, unless: 10
(a) the motor vehicle has attached to it, in the manner prescribed by the 11
regulations, a notice in the prescribed form specifying that the motor vehicle 12
is not for sale, and 13
(b) the motor vehicle does not have any other notice attached to it, or any marking 14
on it, that purports to be the price of the motor vehicle or otherwise suggests 15
that the motor vehicle is being offered or displayed for sale. 16
64 Sale notices for second-hand motor cycles and demonstrator motor vehicles 17
A motor dealer must not sell a second-hand motor cycle or a demonstrator motor 18
vehicle unless: 19
(a) at or before the sale, the motor dealer and the purchaser sign a dealer's notice, 20
or a copy of the notice, and 21
(b) the motor dealer gives the purchaser the notice, or a copy, to keep. 22
Maximum penalty: 20 penalty units. 23
65 Damage notice for new vehicles 24
(1) This section does not apply to a second-hand motor vehicle. 25
Note. A demonstrator motor vehicle is a second-hand motor vehicle. 26
(2) A motor dealer must not sell a motor vehicle that the dealer knows is a damaged 27
motor vehicle, or that the motor dealer would know on a reasonable inspection is a 28
damaged motor vehicle, unless: 29
(a) at or before the sale, the motor dealer and the purchaser sign a dealer's notice 30
that contains particulars of the damage, or a copy of the notice, and 31
(b) the motor dealer gives the purchaser the notice, or a copy, to keep. 32
Maximum penalty: 20 penalty units. 33
(3) A motor vehicle is a damaged motor vehicle for the purposes of this section if any 34
of the following damage (not being superficial damage) has been done: 35
(a) the motor vehicle has suffered water damage, 36
(b) the body or frame of the motor vehicle has been damaged so that the 37
replacement or repair of the whole or part of a panel, structural member or 38
component of the motor vehicle is required to restore the motor vehicle to a 39
reasonable condition, 40
(c) the body or frame of the motor vehicle has been damaged so that the 41
replacement of not less than 4 major external panels (fittings excepted) fitted 42
to the vehicle by means of bolts or other mechanical fastening devices is 43
required to restore the motor vehicle to a reasonable condition. 44
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66 Defences 1
(1) In any proceedings for an offence against this Division in which it is alleged that a 2
particular required to complete a dealer's notice was not included, it is a defence if 3
the defendant proves that: 4
(a) the motor vehicle concerned was brought into this State for the purpose of 5
resale, and 6
(b) the particular was not known to the defendant and the defendant could not, 7
with reasonable diligence, find out the particular. 8
(2) In any proceedings for an offence against this Division in which it is alleged that a 9
particular required to complete a dealer's notice was false or misleading in a material 10
particular, it is a defence if the defendant proves that: 11
(a) the defendant took all reasonable steps to find out the true particulars, and 12
(b) the particulars included were, to the best of the defendant's knowledge, true. 13
Division 4 Defects in motor vehicles sold by motor dealers 14
67 Definitions 15
(1) In this Division: 16
defective vehicle means a motor vehicle that is in such a condition, or has such a 17
defect, that the supply of the motor vehicle would constitute a breach of a guarantee 18
(a consumer guarantee) that applies under sections 54-57 of Part 3-2 of the 19
Australian Consumer Law (NSW). 20
limitation period for a motor vehicle is the period for which the dealer guarantee is 21
in force for the motor vehicle. 22
(2) In this Division, a reference to a motor vehicle is a reference to the vehicle complete 23
with all accessories fitted to the vehicle. 24
68 Dealer guarantee for defective vehicles 25
(1) Dealer guarantee 26
A motor dealer must, at the motor dealer's own expense, repair or make good a motor 27
vehicle sold by the motor dealer, if it is a defective vehicle, so as to place the motor 28
vehicle in a reasonable condition having regard to its age. 29
Note. Any repairs must be carried out by the holder of a tradesperson's certificate (see 30
section 16). 31
(2) The following persons have the benefit of the dealer guarantee: 32
(a) the purchaser of the motor vehicle from the motor dealer, 33
(b) any subsequent owner of the motor vehicle, but only if the motor vehicle was 34
not a second-hand motor vehicle when sold by the motor dealer liable for the 35
dealer guarantee. 36
(3) A motor dealer ceases to be liable for the dealer guarantee for a motor vehicle if the 37
motor vehicle is at any time acquired by the motor dealer or another motor dealer. 38
(4) The dealer guarantee does not apply to a motor vehicle if no limitation period is 39
specified for the motor vehicle under this Division. 40
(5) Vehicle must be defective before end of limitation period 41
The dealer guarantee applies only to a motor vehicle that is or becomes a defective 42
vehicle before the end of the limitation period for the motor vehicle (whether or not 43
it is known before the end of the limitation period that the motor vehicle is a defective 44
vehicle). 45
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(6) Defects that become apparent after limitation period 1
A motor dealer is not required to comply with the dealer guarantee if the condition 2
or defect that causes a motor vehicle to be a defective vehicle becomes apparent after 3
the limitation period and the owner of the motor vehicle fails to report the condition 4
or defect to the motor dealer within a reasonable period of becoming aware of the 5
condition or defect. 6
69 Limitation periods 7
(1) Calculation of limitation period generally 8
The limitation period for a motor vehicle ends when either the distance limit or time 9
limit specified in this section is first reached for the motor vehicle. 10
(2) The period of the time limit for a motor vehicle commences when the motor dealer 11
sells the motor vehicle. If the purchaser takes possession of a new motor vehicle 12
before the sale by the motor dealer is completed, the sale is taken to have occurred 13
on the day the purchaser first takes possession. 14
(3) New vehicle driven less than 15,000 km before sale (not motor cycle) 15
For a motor vehicle (not being a motor cycle or a second-hand motor vehicle) driven 16
less than 15,000 km when sold by a motor dealer, the distance limit is 20,000 km after 17
manufacture and the time limit is 12 months less 1 month for each 2,000 km that the 18
vehicle was driven before it was sold by the motor dealer. 19
(4) New vehicle driven for more than 15,000 km before sale (not motor cycle) 20
For a motor vehicle (not being a motor cycle or a second-hand motor vehicle) driven 21
15,000 km or more when sold by a motor dealer, the distance limit is 5,000 km after 22
sale and the time limit is 3 months. 23
(5) Second-hand vehicle driven for not more than 160,000 km before sale (not motor 24
cycle) 25
For a second-hand motor vehicle (not being a motor cycle) driven not more than 26
160,000 km, and not more than 10 years old, when sold by a motor dealer, the 27
distance limit is 5,000 km after sale and the time limit is 3 months. 28
(6) New motor cycle driven less than 7,000 km before sale 29
For a motor cycle (not being a second-hand motor cycle) driven less than 7,000 km 30
when sold by a motor dealer, the distance limit is 10,000 km after manufacture and 31
the time limit is 6 months less 1 month for each 2,000 km that the vehicle was driven 32
before it was sold by the motor dealer. 33
(7) New motor cycle driven more than 7,000 km before sale 34
For a motor cycle (not being a second-hand motor cycle) driven more than 7,000 km 35
when sold by a motor dealer, the distance limit is 3,000 km after sale and the time 36
limit is 3 months. 37
(8) Unregistrable new motor cycle 38
For a motor cycle (not being a second-hand motor cycle) that is of a design that 39
makes it incapable of being registered in this State, the distance limit is 5,000 km 40
after sale and the time limit is 3 months. 41
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(9) Unregistrable second-hand motor cycle driven for not more than 30,000 km before 1
sale 2
For a second-hand motor cycle that is of a design that makes it incapable of being 3
registered in this State driven not more than 30,000 km, and not more than 5 years 4
old, when sold by a motor dealer, the distance limit is 3,000 km after sale and the time 5
limit is 3 months. 6
(10) Other categories 7
The regulations may prescribe additional categories of limitation periods for 8
specified motor vehicles for the purposes of this section. 9
70 Variation of distance and time limits by regulation 10
(1) The regulations may vary a distance or time limit specified in section 69. 11
(2) The regulations may do so by amending section 69 for that purpose. 12
71 Enforcement of dealer guarantee 13
The dealer guarantee applicable to a motor vehicle is enforceable by the owner of the 14
motor vehicle as if: 15
(a) it were a term of the contract of sale between the motor dealer and the owner, 16
or 17
(b) if the owner purchased the motor vehicle from a person other than the motor 18
dealer, there was a contract of sale between the motor dealer and the owner 19
that contained the dealer guarantee. 20
72 Motor vehicles for which there is no dealer guarantee 21
The dealer guarantee does not apply to the following motor vehicles: 22
(a) a motor vehicle sold by a motor dealer at a bona fide auction if a dealer's notice 23
specifying that the dealer guarantee does not apply to the motor vehicle is 24
attached to the motor vehicle at the time of sale, 25
(b) a substantially demolished or partially dismantled motor vehicle that is 26
purchased by the holder of a motor vehicle recycler's licence, 27
(c) a motor vehicle sold by a motor dealer that is unregistered and, at the time of 28
sale, requires substantial repair. 29
Note. The regulations may also exempt other motor vehicles or specified defects and other 30
damage (see section 186 (2) (a)). 31
73 Damage not covered by dealer guarantee 32
The dealer guarantee does not apply to damage to a motor vehicle in the following 33
circumstances: 34
(a) if the damage is incidental or accidental damage that occurred to the motor 35
vehicle after the sale by the motor dealer and when it was not in the possession 36
of the motor dealer, 37
(b) if the damage occurred to the motor vehicle after the sale by the motor dealer 38
and was caused by misuse by or negligence of the driver, or because the motor 39
vehicle was used for motor racing or motor rallying, 40
(c) if the damage is superficial damage to the paint-work or upholstery of a 41
second-hand motor vehicle that would have been apparent on a reasonable 42
inspection at the time of sale. 43
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74 No dealer guarantee for second-hand motor vehicles where defect notice and 1
inspection report attached 2
(1) The dealer guarantee does not apply to the sale of a second-hand motor vehicle if the 3
requirements of this section are complied with. 4
(2) A motor dealer who offers or displays for sale a second-hand motor vehicle (other 5
than a motor cycle) complies with this section if: 6
(a) a dealer's notice containing a defect notice specifying the defects and 7
condition of the motor vehicle, and a current inspection report, are attached to 8
the motor vehicle at all material times when the motor vehicle is offered or 9
displayed for sale, and 10
(b) at or before the sale, the motor dealer and the purchaser sign the dealer's 11
notice, or a copy of the notice, and 12
(c) the motor dealer gives the purchaser the notice, or a copy, to keep. 13
(3) A motor dealer who offers or displays for sale a second-hand motor cycle complies 14
with this section if, at or before the sale: 15
(a) the motor dealer and the purchaser sign a dealer's notice containing a defect 16
notice specifying the defects and condition of the motor cycle, or a copy of the 17
notice, and the motor dealer gives the purchaser the notice, or a copy, to keep, 18
and 19
(b) the motor dealer gives the purchaser a current inspection report, or a copy, to 20
keep. 21
(4) The dealer guarantee continues to apply to a defective vehicle, despite this section, 22
for a defect that: 23
(a) is not specified in a dealer's notice under this section, or 24
(b) is so specified but that is not also specified in an inspection report given under 25
this section. 26
(5) The purchaser of a motor vehicle that is not subject to a dealer guarantee because of 27
this section may recover, as a debt due to the purchaser by the motor dealer, the 28
difference between the reasonable cost of repairing any defect specified in the 29
dealer's notice and the amount estimated in that notice as the reasonable cost of that 30
repair. 31
75 Other motor dealer not liable 32
A holder of a motor dealer's licence is not liable for a dealer guarantee for a motor 33
vehicle sold on behalf of the holder by another motor dealer. 34
76 Motor dealer liable for loss or damage during guarantee repairs 35
(1) This section applies if a motor vehicle is delivered to a motor dealer for the purposes 36
of assessing liability for, or complying with, the dealer guarantee for the motor 37
vehicle. 38
(2) The motor dealer is liable for any loss of or damage to the motor vehicle that occurs 39
between the delivery of the motor vehicle to the motor dealer by the person and the 40
delivery by the motor dealer of the motor vehicle to the person, whether or not the 41
loss or damage occurred while the motor vehicle was in the possession of the motor 42
dealer or any employee or other person associated with the motor dealer. 43
(3) A motor dealer is not liable under this section if the motor dealer proves that the 44
motor dealer took all reasonably practicable measures to prevent the loss or damage. 45
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77 Effect on Australian Consumer Law remedies 1
A person who has enforced the dealer guarantee under this Division in respect of the 2
condition of or a defect in a motor vehicle is not, if the dealer guarantee is fully 3
complied with, entitled to take action against the motor dealer under the Australian 4
Consumer Law (NSW) in respect of any aspect of the motor vehicle that is made good 5
or repaired under this Division. 6
Division 5 Dealer-financed purchases of motor vehicles 7
78 Application of Division to dealer-financed purchases 8
(1) This Division applies to the purchase of a motor vehicle from a motor dealer if the 9
purchaser obtains credit, for the purpose of financing the whole or part of the 10
purchase, from the motor dealer or a person who is a linked credit provider of the 11
motor dealer. 12
(2) This Division does not apply to or in respect of the following motor vehicle sales: 13
(a) a sale by a motor dealer to another motor dealer, a financier or a motor vehicle 14
recycler, 15
(b) a sale at a bona fide auction, 16
(c) a sale of a vehicle intended to be used predominantly for business or other 17
commercial purposes, 18
(d) a sale where the provision of credit by a linked credit provider of the motor 19
dealer to the purchaser is not arranged or facilitated by the motor dealer. 20
79 Definitions 21
In this Division: 22
tied loan contract has the same meaning as it has in the National Credit Code. 23
trade-in means a motor vehicle given or agreed to be given by a purchaser under a 24
contract for the purchase of another motor vehicle in consideration for the whole or 25
part of the purchase price. 26
80 Cooling off period for dealer-financed purchases 27
In this Division, the cooling off period for the purchase of a motor vehicle is the 28
period commencing when the purchaser enters into the contract for the purchase of 29
the motor vehicle from the motor dealer and ending: 30
(a) at 5pm on the next day that the motor dealer carries on business with the 31
public, or 32
(b) if the motor dealer closes for business before 5pm on that day, at the close of 33
business on the next day that the dealer is open for business following that day. 34
81 Right to terminate contract during cooling off period 35
(1) A purchaser may terminate a contract for the purchase of a motor vehicle to which 36
this Division applies by notice in writing given to the motor dealer during the cooling 37
off period for the purchase. 38
(2) Despite any other law, the purchaser is not entitled to possession of the motor vehicle 39
during the cooling off period, unless the purchaser and the dealer otherwise agree. 40
(3) The right to terminate a contract may be exercised even though the purchaser has 41
taken delivery of the motor vehicle concerned. 42
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(4) A contract for the purchase of a motor vehicle to which this Division applies must 1
contain a provision, in the form prescribed by the regulations, setting out the 2
purchaser's rights under this Division and the effect of this Division. 3
(5) A notice of termination by a purchaser must be signed by the purchaser or the 4
purchaser's Australian legal practitioner. 5
(6) The cooling off period may be extended by a provision in the contract of sale or by 6
agreement with the motor dealer. 7
82 Waiver of cooling off period 8
(1) A purchaser may waive a right to terminate a contract under this Division if: 9
(a) the purchaser signs a waiver in the form prescribed by the regulations, and 10
(b) any applicable requirements of the regulations are complied with. 11
(2) Regulations may be made for or with respect to requirements for waivers under this 12
section. 13
83 Motor dealer may not dispose of trade-in during cooling off period 14
(1) A motor dealer must not sell, give in exchange or otherwise dispose of a trade-in or 15
any interest in or related to a trade-in, given or agreed to be given by a purchaser 16
under a contract for a purchase to which this Division applies during the cooling off 17
period for the purchase. 18
Maximum penalty: 20 penalty units. 19
(2) This section does not render a sale or other transaction relating to a trade-in referred 20
to in subsection (1) unenforceable. 21
84 Obligations of motor dealer on termination 22
(1) On termination of a contract under this Division, the motor dealer must: 23
(a) pay to the purchaser all money received by the motor dealer under the contract, 24
less any money that the purchaser is liable to pay under this Division, and 25
(b) return to the purchaser any trade-in under the contract. 26
(2) On termination of a contract under this Division, a motor dealer who is in possession 27
of a trade-in must return the motor vehicle to the purchaser and is liable to the 28
purchaser for any damage to the motor vehicle while it was in the motor dealer's 29
possession, other than fair wear and tear. 30
85 Obligations of purchaser on termination 31
(1) On termination of a contract under this Division, the purchaser must: 32
(a) pay to the motor dealer $250 or 2% of the purchase price, whichever is the 33
lesser, and 34
(b) repay to the motor dealer any amount paid by the motor dealer in respect of a 35
trade-in. 36
(2) On termination of a contract under this Division, a purchaser who accepted delivery 37
of the motor vehicle before the termination is liable to the motor dealer for any 38
damage to the motor vehicle while it was in the purchaser's possession, other than 39
fair wear and tear. 40
86 Return of motor vehicles 41
A purchaser or motor dealer is not required to return a motor vehicle as required by 42
this Division if the purchaser or motor dealer is unable to return it because of a defect 43
in the motor vehicle, not caused by the purchaser or motor dealer, that has rendered 44
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it incapable of being driven or unroadworthy. The purchaser or motor dealer must, 1
however, permit the collection or arrange for the collection of the motor vehicle. 2
87 Termination of tied loan contracts 3
(1) On termination of a contract under this Division, any tied loan contract is terminated. 4
(2) The regulations may make provision for or with respect to the termination of the tied 5
loan contract. 6
Division 6 Sales of motor vehicles on consignment 7
88 Definitions 8
In this Division: 9
consignor means a person from whom a motor dealer receives motor vehicles for 10
sale on consignment. 11
trust account means a trust account required by this Division to be maintained by a 12
motor dealer. 13
89 Motor dealer must notify consignment sales 14
(1) A motor dealer who proposes to commence to sell motor vehicles on consignment 15
must give the Secretary notice in writing of that intention. 16
Maximum penalty: 20 penalty units. 17
(2) A notification by the motor dealer in an application for a motor dealer's licence or to 18
renew a motor dealer's licence that is made before a motor dealer commences to sell 19
motor vehicles on consignment is sufficient notice for this section. 20
90 Trust account to be established 21
A motor dealer must maintain a trust account at an authorised deposit-taking 22
institution in New South Wales in respect of amounts received for vehicles for sale 23
on consignment. 24
Maximum penalty: 20 penalty units. 25
91 Payment of consignment sale amounts to trust account 26
A motor dealer who receives a motor vehicle for sale on consignment from a 27
consignor must pay an amount equal to the value of the consideration received by the 28
motor dealer for the motor vehicle to the trust account in respect of that consignor not 29
later than on the next business day of the authorised deposit-taking institution after 30
receiving the consideration. 31
Maximum penalty: 20 penalty units. 32
92 Application of money in dealer's trust account 33
(1) A motor dealer must not apply money held in a trust account except for the following 34
purposes: 35
(a) paying an amount payable to the consignor in respect of the motor vehicle, 36
(b) satisfying a debt due to the motor dealer from the consignor in respect of 37
commission or other charges, 38
(c) paying the motor dealer an amount to which the motor dealer is entitled that 39
was paid to the trust account but was not required to be paid to the trust account 40
under this Division, 41
(d) a purpose approved in writing by the Secretary, 42
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Part 4 Obligations relating to sale, recycling and repair of motor vehicles
(e) a purpose prescribed by the regulations. 1
Maximum penalty: 20 penalty units. 2
(2) Money held in a trust account is not available for payment of the debts of a motor 3
dealer or liable to be taken in execution under the order or process of a court, except 4
as provided by this Division or the regulations. 5
(3) This Division does not take away or affect any just claim or lien that a person has 6
against or on any money received from the sale of a motor vehicle on consignment. 7
93 Protection of authorised deposit-taking institutions from liability 8
(1) An authorised deposit-taking institution is not liable to any person merely because 9
the institution failed to secure compliance with any provision of this Division or the 10
regulations relating to the keeping of trust accounts and the withdrawal of money 11
from trust accounts. 12
(2) An authorised deposit-taking institution does not have any recourse or right against 13
money standing to the credit of a trust account in respect of any liability of the motor 14
dealer to the institution (not being a liability in connection with that account). 15
94 Period for accounting to consignor 16
A motor dealer must account to a consignor in respect of the proceeds of sale on 17
consignment of a motor vehicle within 14 days, or such other period as may be 18
prescribed by the regulations, after the sale of the motor vehicle. 19
Maximum penalty: 20 penalty units. 20
95 Audit of dealer's trust account 21
(1) A motor dealer must ensure that each trust account of the motor dealer is audited 22
annually. 23
Maximum penalty: 20 penalty units. 24
(2) The regulations may make provision for or with respect to the auditing of trust 25
accounts, including the information and matters to be contained in any auditor's 26
report. 27
96 Special audit of dealer's trust account 28
The Secretary may, by notice in writing to a motor dealer, require the motor dealer 29
to take the following action if the Secretary is of the opinion that the circumstances 30
of the motor dealer's business warrant it: 31
(a) to obtain and to furnish to the Secretary a report of an auditor relating to a trust 32
account of the motor dealer containing such information and matters as the 33
Secretary may specify, 34
(b) to lodge with the Secretary a guarantee from an authorised deposit-taking 35
institution in favour of the Secretary (in a form approved by the Secretary) or 36
such other security as may be specified by the Secretary in respect of the sale 37
on consignment of motor vehicles by the dealer. 38
Division 7 Obligations of motor vehicle recyclers 39
97 Number-plates on motor vehicles acquired by motor vehicle recyclers 40
(1) This section applies to the following motor vehicles acquired by a motor vehicle 41
recycler: 42
(a) a motor vehicle that is to be demolished or dismantled by the motor vehicle 43
recycler, 44
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Part 4 Obligations relating to sale, recycling and repair of motor vehicles
(b) a substantially demolished or dismantled motor vehicle. 1
(2) If a number-plate is attached to a motor vehicle to which this section applies when it 2
is acquired, the motor vehicle recycler must surrender the number-plate to Roads and 3
Maritime Services as soon as practicable after acquiring the motor vehicle. 4
(3) A motor vehicle recycler must not offer for sale or sell a motor vehicle to which this 5
section applies if a number-plate is attached to the motor vehicle. 6
Maximum penalty: 20 penalty units. 7
98 Sale of motor vehicles by motor vehicle recyclers 8
A motor vehicle recycler must not offer or display for sale or sell a motor vehicle, 9
other than the following motor vehicles: 10
(a) a motor vehicle that has been demolished or dismantled by the motor vehicle 11
recycler, 12
(b) a substantially demolished or dismantled motor vehicle, 13
(c) a motor vehicle acquired and predominantly used by the motor vehicle 14
recycler or an employee of the motor vehicle recycler for private use, 15
(d) a motor vehicle predominantly used for the purposes of the motor vehicle 16
recycler's business. 17
Maximum penalty: 20 penalty units. 18
99 Certain parts or accessories to be marked 19
(1) This section applies to parts or accessories of a kind prescribed by the regulations for 20
the purposes of this section. 21
(2) A motor vehicle recycler must, as soon as practicable after demolishing or 22
dismantling a motor vehicle, mark each part or accessory obtained from the motor 23
vehicle in the manner prescribed by the regulations. 24
(3) A motor vehicle recycler must, as soon as practicable after acquiring a part of a motor 25
vehicle or accessory, mark the part or accessory in the manner prescribed by the 26
regulations. 27
Maximum penalty: 20 penalty units. 28
Division 8 Record keeping obligations 29
100 Registers must be kept by motor dealers, motor vehicle recyclers and motor vehicle 30
repairers 31
(1) The holder of a motor dealer's licence, a motor vehicle recycler's licence or a motor 32
vehicle repairer's licence must keep or cause to be kept a register relating to the 33
holder's business. 34
(2) If required by the regulations, the licence holder must keep or cause to be kept 35
separate registers for specified matters. 36
(3) A register is to be in the form, and contain the particulars, prescribed by the 37
regulations and to be kept at the place or places prescribed by the regulations. 38
(4) The entries in a register kept under this section must be made within the period (if 39
any) specified by the regulations. 40
(5) A licence holder who fails to keep or cause to be kept a register in accordance with 41
this section is guilty of an offence. 42
Maximum penalty: 20 penalty units. 43
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Division 9 Suspicious goods 1
101 Duty to report suspicious goods 2
A licence holder or any employee of a licence holder who suspects for any reason 3
that a motor vehicle, motor vehicle part, accessory or any other thing that is in the 4
licence holder's custody, or that is offered to the licence holder for sale, in the course 5
of the licence holder's business may have been stolen or unlawfully obtained must 6
without unreasonable delay inform the Secretary of the suspicion. 7
Maximum penalty: 20 penalty units. 8
102 Retention of suspicious goods 9
(1) An authorised officer who has reasonable grounds for believing that a motor vehicle, 10
motor vehicle part, accessory or any other thing that is in the possession of a licence 11
holder has been stolen or is unlawfully obtained may issue a non-disposal notice to 12
the licence holder. 13
(2) A non-disposal notice is a notice that prohibits the licence holder, for a period of 14
14 days after the notice is given, from altering the form of the thing, selling or 15
otherwise disposing of it in any way or parting with possession of it. 16
(3) The Local Court may, on application by an authorised officer, order that the effect of 17
a non-disposal notice be extended for a further period of up to 28 days. More than 18
one application may be made under this subsection. 19
(4) A licence holder, or an employee of a licence holder, must not contravene a notice 20
given under this section. 21
Maximum penalty: 500 penalty units. 22
Division 10 Motor vehicle brokers' obligations 23
103 Motor vehicle brokers' obligations 24
(1) A person is a motor vehicle broker for the purposes of this Act if the person carries 25
on the business (other than as a retailer or on a wholesale basis or as a financier) of 26
negotiating on behalf of other persons for the purchase of motor vehicles by those 27
persons and of advising other persons on the purchase of motor vehicles. 28
(2) A motor vehicle broker must disclose to any person to whom the person provides 29
services in the course of business as a motor vehicle broker: 30
(a) whether the motor vehicle broker has a financial or other business relationship 31
with the supplier of a motor vehicle in relation to which the services are 32
provided, and 33
(b) whether the motor vehicle broker receives a fee or other consideration from 34
the supplier arising out of the provision of those services. 35
(3) The disclosure must be made before the motor vehicle broker provides services in 36
that capacity. 37
(4) A motor vehicle broker who fails to comply with this section is guilty of an offence. 38
Maximum penalty: 20 penalty units. 39
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Part 5 Remedies relating to conduct by motor dealers, motor vehicle repairers and motor vehicle recyclers
Part 5 Remedies relating to conduct by motor dealers, motor 1
vehicle repairers and motor vehicle recyclers 2
Division 1 Unjust conduct by motor dealers, motor vehicle repairers 3
and motor vehicle recyclers 4
104 Application of Division 5
This Division applies to the holder of a motor dealer's licence, a motor vehicle 6
repairer's licence or a motor vehicle recycler's licence. 7
105 Meaning of "unjust conduct" 8
For the purposes of this Division, conduct of a licence holder is unjust conduct if it 9
is conduct: 10
(a) that is dishonest or unfair, or 11
(b) that consists of anything done, or omitted to be done, in breach of contract, 12
whether or not proceedings in respect of the breach have been brought, or 13
(c) that consists of the contravention of this Act or the regulations or any other Act 14
or regulation administered by the Minister, or 15
(d) that consists of a failure to comply with a condition or restriction to which the 16
licence is subject or an order of the Tribunal applicable to the holder. 17
106 Undertakings by licence holder 18
(1) If it appears to the Secretary that a licence holder has, in the course of business, 19
repeatedly engaged in unjust conduct, the Secretary may, with the consent of the 20
Minister: 21
(a) request the licence holder to execute a deed in terms approved by the Secretary 22
under which the licence holder gives undertakings as to: 23
(i) the discontinuance of the unjust conduct, and 24
(ii) the licence holder's future conduct, and 25
(iii) the action the licence holder will take to rectify the consequences of the 26
licence holder's unjust conduct, or 27
(b) apply to the Tribunal under this Division. 28
(2) If the Secretary makes a request or application under this section, it is presumed, 29
unless the contrary is proved, that the Secretary does so with the authority of the 30
Minister. 31
(3) The following actions must not be taken against a licence holder, in respect of 32
conduct the subject of undertakings in a deed approved under this section, if the 33
licence holder observes the undertakings: 34
(a) disciplinary action under this Act, 35
(b) an application to the Tribunal for an order under this Division. 36
(4) A licence holder who executes a deed under this Division must observe the 37
undertakings given by the licence holder in the deed. 38
Maximum penalty: 20 penalty units. 39
(5) A prosecution for an offence under subsection (4) may be instituted only by the 40
Secretary with the leave of the Tribunal given when making an order under 41
section 108. 42
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107 Register of Undertakings 1
(1) The Secretary must lodge a copy of any deed executed under this Division with the 2
Registrar of the Tribunal and give a copy of the deed to the licence holder who 3
executed it. 4
(2) The Secretary must retain all deeds executed under this Division and register the 5
deeds in a Register of Undertakings kept by the Secretary and containing the 6
particulars prescribed by the regulations. 7
108 Restraint of unjust conduct 8
(1) The Tribunal may, on the application of the Secretary, order a licence holder to 9
refrain from engaging in unjust conduct in the course of carrying on business as a 10
motor dealer, motor vehicle repairer or motor vehicle recycler, if it is satisfied after 11
inquiry that a licence holder has repeatedly engaged in unjust conduct. 12
(2) The Tribunal may, on the application of the Secretary, if it is satisfied that a licence 13
holder has failed to observe an undertaking given by the licence holder in a deed 14
executed under this Division: 15
(a) order the licence holder to refrain from engaging in unjust conduct in the 16
course of carrying on business as a motor dealer, motor vehicle repairer or 17
motor vehicle recycler, and 18
(b) in the case of an undertaking relating to action to rectify the consequences of 19
the licence holder's unjust conduct, order the licence holder to observe the 20
undertaking within the time specified by the Tribunal in the order. 21
(3) If the licence holder is a body corporate and the Tribunal is satisfied that the unjust 22
conduct or breach of undertaking concerned was engaged in with the consent or 23
connivance of a person who, at the time of the conduct or breach was a director of, 24
or a person concerned in the management of, the body corporate, the Tribunal may 25
make an order prohibiting the person from consenting to, or conniving at, 26
engagement in unjust conduct, or a breach of an undertaking under this Division, by 27
the body corporate or any other body corporate of which the person is a director or 28
in the management of which the person is concerned. 29
(4) An order under this section may be made subject to such conditions as the Tribunal 30
thinks fit. 31
(5) Without limiting subsection (4), the Tribunal may impose conditions of the following 32
kinds: 33
(a) conditions as to the duration of the order, 34
(b) conditions as to the future conduct of the person subject to the order, 35
(c) conditions specifying the action to be taken by the licence holder to rectify the 36
consequences of the licence holder's conduct. 37
109 Variation or discharge of restraining order 38
The Tribunal may, on the application of the Secretary, vary or discharge an order 39
made under this Division. 40
Division 2 Disputes 41
110 Definitions 42
In this Division: 43
complainant means a purchaser or owner of a motor vehicle who applies to have a 44
dispute investigated under this Division. 45
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motor dealer includes a person who was a motor dealer when the events the subject 1
of a dispute to which this Division applies occurred. 2
motor vehicle repairer includes a person who was a motor vehicle repairer when the 3
events the subject of a dispute to which this Division applies occurred. 4
111 Disputes to which Division applies 5
(1) Motor dealer disputes 6
This Division applies to disputes between motor dealers and purchasers and owners 7
of motor vehicles arising out of the application of this Act, including (but not limited 8
to) the following: 9
(a) the existence or extent of any obligation under Division 4 of Part 4 on the part 10
of the motor dealer to the purchaser or the owner, 11
(b) the manner of carrying out any such obligation, 12
(c) the amount of the fair cost of repairing or making good any defect referred to 13
in a defect notice. 14
(2) Repair disputes 15
This Division applies to disputes between motor vehicle repairers and owners of 16
motor vehicles arising out of the application of this Act, including (but not limited 17
to) the following: 18
(a) the manner in which any repair work has been done, 19
(b) the fair cost owed by the owner to the repairer for the carrying out of any repair 20
work. 21
(3) Excluded disputes 22
An application cannot be made or dealt with under this Division in relation to a 23
matter in dispute if: 24
(a) proceedings in respect of the matter have been commenced in a court or 25
tribunal and have not been discontinued before being finally determined, or 26
(b) the matter has been previously dealt with under this Division. 27
112 Investigation of disputes 28
(1) A purchaser or owner of a motor vehicle who is a party to a dispute to which this 29
Division applies may apply to the Secretary to investigate the dispute. 30
(2) The Secretary is to use the Secretary's best endeavours by communication with the 31
parties to the dispute, or otherwise, to settle the dispute. 32
(3) If the Secretary is unable to settle the dispute, the Secretary is to investigate the 33
dispute. 34
(4) The Secretary may determine the procedure for the purpose of investigating the 35
dispute. 36
113 Secretary may make rectification order 37
(1) If, after completing an investigation under this Division, the Secretary is satisfied: 38
(a) that any work done or required to be done by or on behalf of a motor dealer to 39
make good or repair a motor vehicle so as to comply with the dealer guarantee 40
has not been done or is incomplete or defective, or 41
(b) that any repair work done by a motor vehicle repairer is incomplete or 42
defective, 43
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Part 5 Remedies relating to conduct by motor dealers, motor vehicle repairers and motor vehicle recyclers
the Secretary may serve a written order (a rectification order) on the motor dealer or 1
motor vehicle repairer requiring the motor dealer or motor vehicle repairer to take 2
such steps as are specified in the order to ensure that the work is completed or the 3
defect rectified. 4
(2) A rectification order: 5
(a) may specify conditions (including conditions with respect to the payment of 6
money) to be complied with by the complainant before the requirements of the 7
order must be complied with, and 8
(b) must specify a date by which the requirements of the order must be complied 9
with, subject to the complainant's compliance with any such condition. 10
114 Effect of rectification order 11
(1) Except as provided by this Act, a rectification order does not give rise to any rights 12
or obligations. 13
(2) A rectification order ceases to have effect for the purposes of being a ground for 14
disciplinary action under this Act if the matter giving rise to the order becomes the 15
subject of an action before the Tribunal. 16
Note. Contravention of a rectification order is a ground for taking disciplinary action against a 17
licence holder. 18
Division 3 Rescission of motor vehicle sales and other orders 19
115 Definitions 20
In this Division: 21
cash price of a motor vehicle means the sum of the price (if any) at which the vehicle 22
is sold and the amount of the value of any other vehicle or other thing that comprises 23
the whole or part of the consideration for the sale. The value is the value given to the 24
vehicle or other thing by the parties to the sale or, if no value is so given, the market 25
value of the vehicle or other thing at the time of the sale. 26
rescission order means an order made under section 117 or 118. 27
116 Conferral of jurisdiction on courts 28
The following courts have jurisdiction to make a rescission order in relation to the 29
sale of a motor vehicle: 30
(a) the Local Court in the exercise of its jurisdiction under Part 3 of the Local 31
Court Act 2007, if the cash price for which the motor vehicle was sold does not 32
exceed the jurisdictional limit of the Local Court when sitting in its General 33
Division within the meaning of that Act, 34
(b) the District Court, if the cash price for which the motor vehicle was sold does 35
not exceed the amount for the time being specified in section 44 (1) (a) of the 36
District Court Act 1973, 37
(c) the Supreme Court. 38
117 Rescission orders 39
(1) A court may, on application by the Secretary, if it is satisfied that a ground for 40
making the order has been made out, make an order that: 41
(a) the sale of a motor vehicle by a motor dealer is rescinded and that the motor 42
vehicle must be returned to the motor dealer, and 43
(b) any amount paid or the value of other consideration given by the purchaser for 44
the motor vehicle must be returned to the purchaser, subject to any financial 45
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adjustment between the motor dealer and the purchaser that the court thinks fit 1
to make. 2
(2) The court may also make any other ancillary or consequential orders it thinks fit, 3
including an order as to payment of the costs of the application. 4
(3) The grounds for making a rescission order are as follows: 5
(a) an inspection report, receipt or declaration required to be attached to the motor 6
vehicle under Division 2 of Part 4 was not attached at all material times when 7
the motor vehicle was offered or displayed for sale by the motor dealer, 8
(b) a dealer's notice, or a copy of a dealer's notice, was not given to the purchaser 9
in accordance with the applicable requirements of Division 3 of Part 4, 10
(c) the particulars included in a dealer's notice relating to the motor vehicle were, 11
in the opinion of the court, false or misleading in a material particular, 12
(d) the body of, or mechanical equipment in, the motor vehicle was at the time it 13
was sold by the motor dealer in such a condition that, in the opinion of the 14
court, it is not practicable to comply with the dealer guarantee for the motor 15
vehicle. 16
(4) An appeal lies to the Supreme Court against a rescission order made under this 17
section: 18
(a) by the Local Court as if it were exercising jurisdiction under Part 3 of the Local 19
Court Act 2007, and 20
(b) by the District Court as if it were exercising jurisdiction under the District 21
Court Act 1973. 22
118 Rescission orders after findings of guilt 23
(1) If a motor dealer is found guilty of an offence under Part 4, the Local Court may, in 24
addition to any other penalty it imposes, make an order that: 25
(a) the sale of a motor vehicle by a motor dealer is rescinded and that the motor 26
vehicle must be returned to the motor dealer, and 27
(b) any amount paid or the value of other consideration given by the purchaser for 28
the motor vehicle must be returned to the purchaser, subject to any financial 29
adjustment between the motor dealer and the purchaser that the Court thinks 30
fit to make. 31
(2) The Local Court must not make a rescission order under this section if the cash price 32
for which the motor vehicle was sold exceeds the jurisdictional limit of the Local 33
Court when sitting in its General Division. 34
119 Difficulty of restoring position no bar to rescission order 35
Despite any other law, it is not a bar to the making of a rescission order that the 36
parties under any contract or agreement relating to the sale of the motor vehicle or 37
under any credit contract associated with the sale cannot be restored to the positions 38
that existed before the sale because of the time that has elapsed since the date of the 39
sale or the circumstances that have occurred since that date. 40
120 Effect of rescission orders on rights 41
(1) On the rescission of the sale of a motor vehicle under this Division, the liabilities and 42
rights of the purchaser of the motor vehicle under a credit contract under which credit 43
is provided by a person who is a linked credit provider of the motor dealer for the 44
purpose of financing the whole or part of the purchase: 45
(a) are, by force of this section, transferred to the motor dealer, and 46
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(b) subject to this section, may be enforced against the motor dealer as if the motor 1
dealer were the purchaser. 2
(2) On the rescission of the sale of a motor vehicle under this Division, the rights and 3
liabilities of the parties to the contract for the sale of the motor vehicle or any such 4
credit contract are, despite any other law, as specified in the rescission order and any 5
ancillary or consequential orders. 6
121 Secretary and others have right to be heard before rescission order 7
A court must not make a rescission order unless it has given the Secretary or a 8
representative of the Secretary, and any other person likely to be affected by the 9
order, an opportunity to be heard. 10
Division 4 Penalties for unlicensed motor dealers and motor vehicle 11
recyclers 12
122 Definitions 13
In this Division: 14
forfeiture order means an order made under section 123 (1) (a). 15
proceeds order means an order made under section 123 (1) (b). 16
restraining order means an order made under section 125 (1). 17
123 Forfeiture of motor vehicles and proceeds by unlicensed motor dealers and motor 18
vehicle recyclers 19
(1) A court that convicts a person of an offence under section 11 or 13 may, in addition 20
to any other penalty it may impose, make one or more of the following orders: 21
(a) an order that any specified motor vehicle to which the offence relates is 22
forfeited to the Crown, 23
(b) an order that the person pay to the Crown an amount, as assessed by the court, 24
equal to the proceeds derived by the person from the commission of the 25
offence or any other offence to which this section applies and which the court 26
has taken into account in imposing any such penalty. 27
(2) Before making a forfeiture order or a proceeds order, the court may require notice to 28
be given to, and may hear, such persons as the court thinks fit. 29
(3) For the purposes of making a proceeds order against a person, the court may: 30
(a) take into account such matters as the court thinks fit, and 31
(b) to the extent specified by the court--treat any interest in real or personal 32
property acquired by the person by means of proceeds derived by the person 33
from the commission of an offence as proceeds derived by the person from the 34
commission of the offence, and 35
(c) treat the equivalent, in monetary value, of any interest in real or personal 36
property derived by the person from the commission of an offence as proceeds 37
derived by that person from the commission of the offence. 38
(4) An amount payable under a proceeds order is to be paid to the Compensation Fund. 39
(5) The amount payable under a proceeds order may, by leave of the court by which it 40
was made, and regardless of the amount ordered to be paid, be recovered as a 41
judgment debt in that court. 42
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124 Appeals against forfeiture and proceeds orders 1
(1) A person who has an interest in a motor vehicle the subject of a forfeiture order may 2
appeal against the order in the same manner as if the order were, or were part of, an 3
order imposing a penalty in respect of the offence (whether or not the person was 4
convicted of the offence that resulted in the order). 5
(2) A person against whom a proceeds order is made may appeal against the order in the 6
same manner as if it were, or were part of, an order imposing a penalty in respect of 7
the offence that resulted in the order. 8
(3) The court to which an appeal is made in respect of a forfeiture order may, pending 9
the hearing and determination of the appeal, make such orders as it thinks fit for the 10
custody of the motor vehicle the subject of the order. 11
(4) On appeal, a forfeiture order or a proceeds order may be confirmed, revoked or 12
varied. 13
125 Temporary restraint on disposition of property 14
(1) A court before which proceedings are being taken against a person for an offence 15
under section 11 or 13 or that makes a proceeds order against a person may, by order, 16
prohibit, except as is specified in the order: 17
(a) the person (the offender) from disposing of or otherwise dealing with any 18
interest in specified property, and 19
(b) any other specified person from disposing of or otherwise dealing with any 20
interest in specified property: 21
(i) that belongs to the offender and in respect of which the offender has a 22
power of attorney from that person or any other power of disposition, or 23
(ii) that the specified person holds for or on behalf of the offender. 24
(2) Without affecting any power conferred on it by subsection (1), the Supreme Court 25
may at any time make a restraining order against a person: 26
(a) in respect of whom any other court may make such an order, or 27
(b) whom any other court has committed for trial or for sentence. 28
(3) Before making a restraining order, a court may require notice to be given to, and may 29
hear, such persons as it thinks fit. 30
(4) Any person who holds an interest in property the subject of a restraining order may 31
apply for the revocation or variation of the order. 32
(5) A restraining order may be revoked or varied by the Supreme Court or: 33
(a) if proceedings in respect of the offence are being taken--by the court before 34
which those proceedings are being taken, or 35
(b) in any other case--by the court before which proceedings in respect of the 36
offence were last taken. 37
(6) A person must not, without reasonable excuse, fail to comply with a restraining 38
order. 39
Maximum penalty: 20 penalty units or imprisonment for 6 months, or both. 40
Division 5 Administration of motor dealers and motor vehicle recyclers 41
126 Definitions 42
In this Division: 43
administration means an administration under this Division. 44
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administrator means an administrator of the affairs and property of a person holding 1
office under this Division. 2
affairs of a person means the person's affairs relating to the carrying on of a business 3
authorised to be carried on by a licence or a former licence held by the person. 4
person subject to administration means a person for whose affairs and property an 5
administrator is appointed under this Division. 6
property of a person means the following: 7
(a) property held by the person, or by an employee or agent of the person, in the 8
course of or in connection with a business the subject of an administration, 9
whether or not the property is held on behalf of another person, 10
(b) property that would, but for the appointment of an administrator, be receivable 11
by the person after the appointment whether on behalf of the person or another 12
person, 13
(c) interest, dividends or other income received by the administrator and arising 14
from property held by the administrator as administrator, 15
(d) records kept by or on behalf of the person in connection with a business the 16
subject of an administration. 17
127 Appointment of administrator for holder of licence 18
(1) The Supreme Court may, on the application of the Secretary, make an order 19
appointing an administrator of the affairs and property of a licence holder if the Court 20
is satisfied that: 21
(a) any ground exists on which the licence holder's licence may be suspended or 22
cancelled under this Act, or 23
(b) the licence holder has repeatedly engaged in unjust conduct within the 24
meaning of Division 1, or 25
(c) it is desirable in the public interest, having regard to the circumstances of the 26
licence holder, to do so. 27
(2) The Supreme Court may suspend or cancel the licence of any person subject to an 28
order under this section. 29
128 Appointment of administrator for former holder of licence 30
(1) The Supreme Court may, on the application of the Secretary, make an order 31
appointing an administrator of the affairs and property of a person whose motor 32
dealer's licence or motor vehicle recycler's licence has been suspended or cancelled 33
on being satisfied that the appointment is necessary or desirable in order to protect 34
the interests of persons with whom that person has had dealings. 35
(2) An application for administration under this section must be made: 36
(a) not later than 12 months after the date on which the licence was suspended or 37
cancelled, and 38
(b) in the case of a suspension, before the suspension is removed or expires. 39
129 Notification of appointment of administrator 40
(1) The Secretary must give a copy of the order appointing an administrator of the affairs 41
and property of a person to the person, and to any other person directed by the 42
Supreme Court, as soon as practicable after the order is made. 43
(2) The Secretary is not required to give a copy of an order to a person if: 44
(a) the Supreme Court dispensed with service, or 45
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(b) the person appeared, or was represented, in proceedings for the appointment 1
of the administrator. 2
130 Functions of administrator 3
Schedule 1 contains provisions relating to the functions of an administrator and the 4
conduct of an administration. 5
131 Obstruction of administrator 6
A person must not, without reasonable excuse, obstruct, hinder or delay an 7
administrator in the exercise of the administrator's functions under this Act. 8
Maximum penalty: 20 penalty units. 9
132 Vacation of office by administrator 10
The office of an administrator becomes vacant if the administrator: 11
(a) dies, or 12
(b) has his or her appointment revoked by the Supreme Court, or 13
(c) becomes bankrupt, applies to take the benefit of any law for the relief of 14
bankrupt or insolvent debtors, compounds with his or her creditors or makes 15
an assignment of his or her remuneration for their benefit, or 16
(d) becomes a mentally incapacitated person, or 17
(e) is convicted in New South Wales of an offence that is punishable by 18
imprisonment for 12 months or more or is convicted elsewhere than in New 19
South Wales of an offence that, if committed in New South Wales, would be 20
an offence so punishable. 21
133 Revocation of appointment of administrator 22
(1) The Supreme Court may, on the application of an administrator or on the application 23
of the Secretary, make an order revoking the appointment of the administrator. 24
(2) The Supreme Court may, on the application of a person subject to administration, 25
make an order revoking the appointment of the administrator if it is satisfied that the 26
purpose for which that administrator was appointed has been fulfilled. 27
(3) If an administrator of the affairs and property of a person has vacated office, the 28
Supreme Court may, on the application of the Secretary, make an order appointing 29
another person as administrator, if the Supreme Court is satisfied that the purpose for 30
which the former administrator was appointed has not yet been fulfilled. 31
134 Transfer of property under administration after revocation 32
(1) If the Supreme Court revokes the appointment of an administrator and is satisfied 33
that the purpose for which the former administrator of the affairs and property of a 34
person was appointed has been fulfilled, the Supreme Court may make an order 35
vesting in or transferring to the person any property held in trust for the person by the 36
administrator. 37
(2) If the Supreme Court appoints a new administrator and is satisfied that the purpose 38
for which the former administrator of the affairs and property of a person was 39
appointed has not been fulfilled, the Supreme Court is to make an order vesting in or 40
transferring to the new administrator any property held in trust for the person by the 41
former administrator. 42
(3) The Supreme Court may make an order under this section on its own motion or on 43
an application for the revocation of appointment of the administrator. 44
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135 Transfer of property under administration after vacation without revocation 1
(1) An application may be made to the Supreme Court by a person subject to 2
administration if: 3
(a) the administrator has vacated office, other than because the appointment is 4
revoked, and 5
(b) an order for the appointment of a new administrator has not been made, and 6
(c) the application is made not earlier than 14 days after the administrator vacated 7
office. 8
(2) The Supreme Court may, on application under this section, make an order vesting in 9
or transferring to the person any property held in trust for the person by the former 10
administrator. 11
136 Orders to provide for payment of administrator's costs 12
An order by the Supreme Court under this Division that vests in or transfers property 13
to a person who was subject to administration is to provide for the payment of the 14
costs of the former administrator by the person: 15
(a) to the former administrator, or 16
(b) to the Compensation Fund, if the costs were paid by the Secretary from that 17
Fund. 18
137 Power of Supreme Court to make certain orders 19
The Supreme Court may, on the application of the administrator and without 20
derogating from any other provision of this Division or Schedule 1, make orders 21
authorising an administrator to do such things as the Court thinks fit for the purpose 22
of enabling the administrator to administer the affairs and property of the person 23
subject to administration. 24
138 Person entitled to be heard 25
A person who is the subject of an application for the appointment of an administrator 26
or who is subject to an application made by the Secretary to revoke the administration 27
to which the person is subject or to appoint a new administrator is: 28
(a) unless the Supreme Court dispenses with service, entitled to be served with a 29
copy of the originating process, and 30
(b) entitled to appear and be heard at the hearing of the application, either 31
personally or by an Australian legal practitioner. 32
139 Improper withdrawal of money etc 33
(1) A person must not, with the intention of defeating the purposes of this Division: 34
(a) withdraw money from, or make any payment out of, any account kept by or on 35
behalf of a licence holder or a person whose licence is cancelled or suspended, 36
or 37
(b) destroy or conceal, or remove from one place to another, or deliver into the 38
possession or control of any other person, any property in relation to which an 39
administrator is subsequently appointed. 40
(2) A person must not, after being notified or becoming aware of the appointment of an 41
administrator and without the authority of the administrator: 42
(a) withdraw money from, or make any payment out of, any account kept by or on 43
behalf of a person subject to administration, or 44
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(b) destroy or conceal, or remove from one place to another, or deliver into the 1
possession or control of any other person, any property of a person subject to 2
administration. 3
Maximum penalty: 20 penalty units or imprisonment for 12 months, or both. 4
140 Application to Supreme Court for directions 5
(1) The following persons may apply to the Supreme Court for directions as to the 6
manner in which an administrator is required to exercise the functions conferred on 7
the administrator by this Act, either generally or with respect to any particular matter 8
specified in the application: 9
(a) an administrator, 10
(b) the person who is subject to the administration, 11
(c) any person who has submitted a claim to the administrator in relation to any 12
property being administered by the administrator. 13
(2) On the hearing of an application, the Supreme Court may, by order, give any 14
directions that it considers to be appropriate in the circumstances of the case. 15
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Part 6 Unfair contracts and unjust conduct affecting motor dealers
Part 6 Unfair contracts and unjust conduct affecting motor 1
dealers 2
141 Definitions 3
In this Part: 4
manufacturer means an assembler or manufacturer of motor vehicles (whether 5
assembled or manufactured in or outside Australia) who supplies those motor 6
vehicles for sale by a motor dealer and includes any person, or member of a class of 7
persons, prescribed by the regulations for the purposes of this definition. 8
motor industry group means a body, approved by the Secretary for the purposes of 9
this Part, that represents motor dealers. 10
supply contract means a contract (including any documents forming part of, or 11
referred to in, the contract) between a manufacturer and a motor dealer for the supply 12
of motor vehicles by the manufacturer to the motor dealer for sale by the motor 13
dealer. 14
142 Unfair contracts 15
(1) A term of a supply contract is unfair for the purposes of this Part if: 16
(a) it would cause a significant imbalance in the parties' rights and obligations 17
arising under the contract, and 18
(b) it is not reasonably necessary in order to protect the legitimate interests of the 19
party who would be advantaged by the term, and 20
(c) it would cause detriment (whether financial or otherwise) to a party if it were 21
to be relied on. 22
(2) Without limiting subsection (1), the following are examples of terms of supply 23
contracts that may be unfair: 24
(a) a term that permits, or has the effect of permitting, one party (but not another 25
party) to avoid or limit performance of the contract, 26
(b) a term that permits, or has the effect of permitting, one party (but not another 27
party) to terminate the contract, 28
(c) a term that penalises, or has the effect of penalising, one party (but not another 29
party) for a breach or termination of the contract, 30
(d) a term that permits, or has the effect of permitting, one party (but not another 31
party) to vary the terms of the contract, 32
(e) a term that permits, or has the effect of permitting, one party unilaterally to 33
vary the characteristics of the goods to be supplied under the contract, 34
(f) a term that permits, or has the effect of permitting, one party unilaterally to 35
vary the goods required to be sold or the place at which goods are required to 36
be sold by the motor dealer, 37
(g) a term that unreasonably limits, or has the effect of unreasonably limiting, the 38
assignment by the motor dealer of the motor dealer's rights under the contract 39
or the sale of the motor dealer's business, 40
(h) a term that limits, or has the effect of limiting, one party's rights to sue another 41
party. 42
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143 Unjust conduct 1
Conduct of a manufacturer is unjust conduct for the purposes of this Part if it is 2
conduct: 3
(a) that occurs in connection with a supply contract and is conduct that is 4
dishonest or unfair, or 5
(b) that is authorised by an unfair term of a supply contract. 6
144 Complaints to Small Business Commissioner 7
(1) A motor industry group may apply to the Small Business Commissioner for 8
assistance in dealing with a dispute about an unfair term of a supply contract or a 9
class of supply contracts or unjust conduct by a manufacturer who is a party to a 10
supply contract or class of supply contracts. 11
(2) A motor dealer may apply to the Small Business Commissioner for assistance in 12
dealing with a dispute about an unfair term of a supply contract or unjust conduct by 13
a manufacturer who is a party to a supply contract. 14
(3) The application is to be dealt with under the Small Business Commissioner Act 2013 15
as if it were made by a small business under Division 2 of Part 2 of that Act. 16
145 Applications to Tribunal about unfair supply contracts and unjust conduct 17
(1) A motor industry group or the Small Business Commissioner may apply to the 18
Tribunal on behalf of a motor dealer or class of motor dealers for a declaration that a 19
term of a supply contract or a class of supply contracts is unfair, or that conduct of a 20
manufacturer is unjust, and for orders under this Part. 21
(2) A motor dealer may apply to the Tribunal for a declaration that a term of a supply 22
contract is unfair, or that conduct of a manufacturer is unjust, and for orders under 23
this Part. 24
(3) An application may not be made by a motor industry group or a motor dealer in 25
relation to a matter unless the motor industry group or motor dealer has first made a 26
complaint to the Small Business Commissioner about the matter and the 27
Commissioner has provided a certificate under section 19 of the Small Business 28
Commissioner Act 2013 as to the outcome of procedures under that Act relating to 29
the complaint. 30
(4) An applicant for a declaration and an order under this Part must give notice in writing 31
of the application to the Secretary. 32
146 Declarations by Tribunal 33
(1) The Tribunal may, on application under this Part by a motor industry group, the 34
Small Business Commissioner or a motor dealer, declare a term of a supply contract 35
or a class of supply contracts to be an unfair term or declare conduct of a 36
manufacturer to be unjust conduct. 37
(2) In determining whether to make a declaration that a term of a supply contract is an 38
unfair term or that conduct is unjust, the Tribunal may take into account such matters 39
as it thinks fit and is to have regard to all the circumstances of the case, including the 40
contract as a whole. 41
(3) Without limiting subsection (2), the Tribunal may consider the following (if 42
relevant): 43
(a) the extent to which the supply contract is expressed in reasonably plain 44
language and is presented clearly, 45
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Part 6 Unfair contracts and unjust conduct affecting motor dealers
(b) whether or not there was any material inequality in bargaining power between 1
the parties to the supply contract, 2
(c) whether or not at or before the time the supply contract was made its 3
provisions were the subject of negotiation, 4
(d) whether or not it was reasonably practicable for a motor dealer to negotiate for 5
the alteration of or to reject the term of the supply contract or any matter 6
related to the contract, 7
(e) whether a term of a supply contract imposes conditions which are 8
unreasonably difficult to comply with or not reasonably necessary for the 9
protection of the legitimate interests of any party to the supply contract, 10
(f) whether or not and when independent legal or other expert advice was 11
obtained by the motor dealer, 12
(g) whether any undue influence, unfair pressure or unfair tactics were exerted on 13
or used against the motor dealer: 14
(i) by any other party to the supply contract, or 15
(ii) by any person acting or appearing or purporting to act for or on behalf 16
of any other party to the supply contract, or 17
(iii) by any person to the knowledge (at the time the supply contract was 18
made) of any other party to the supply contract or of any person acting 19
or appearing or purporting to act for or on behalf of any other party to 20
the supply contract, 21
(h) the conduct of the parties in relation to similar contracts or courses of dealing 22
to which any of them has been a party. 23
147 Orders by Tribunal if term declared unfair or conduct declared unjust 24
(1) The Tribunal may, if it declares a term of a supply contract or of a class of supply 25
contracts to be an unfair term, do any of the following: 26
(a) make an order declaring the contract or contracts to be void, in whole or in 27
part, 28
(b) make an order varying, in whole or in part, any term of the contract or 29
contracts, 30
(c) make an order directing a party to the contract or contracts to take or not to take 31
specified actions relating to the subject-matter of the contract or contracts 32
(whether or not permitted by the contract or contracts), 33
(d) make an order directing a party to the contract to pay an amount of 34
compensation to another party to the contract, 35
(e) make any other consequential or ancillary orders it thinks fit. 36
(2) The Tribunal may, if it declares conduct by a manufacturer to be unjust, do any of the 37
following: 38
(a) make an order directing a manufacturer or other person to take or not to take 39
specified actions relating to the conduct or the subject-matter of the supply 40
contract or contracts (whether or not permitted by the contract or contracts), 41
(b) make an order directing a party to the contract to pay an amount of 42
compensation to another party to the contract, 43
(c) make any other consequential or ancillary orders it thinks fit. 44
(3) An order made by the Tribunal under this section takes effect when it is made or at 45
such other time as the Tribunal specifies. 46
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(4) In making an order under this section, the amount of compensation the Tribunal may 1
order to be paid is not subject to any limitation on the Tribunal's jurisdiction under 2
any other Act or law. 3
148 Operation of other laws 4
This Part does not limit or restrict the operation of any other law that provides for 5
relief against unjust conduct or unfair contract terms. 6
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Part 7 Enforcement and offences
Part 7 Enforcement and offences 1
Division 1 Inspection powers 2
149 Authorised officers 3
(1) In this Act: 4
authorised officer means: 5
(a) the Secretary, or 6
(b) a person for the time being authorised in writing as an authorised officer by the 7
Secretary, or 8
(c) a police officer, or 9
(d) any other member of the NSW Police Force who is authorised by the 10
Commissioner of Police in writing to exercise functions of an authorised 11
officer under this Act, or 12
(e) a person for the time being authorised in writing as an authorised officer by the 13
Chief Executive of Roads and Maritime Services, or 14
(f) an investigator. 15
investigator means an investigator appointed under section 18 of the Fair Trading 16
Act 1987. 17
(2) An authorised officer who is a person for the time being authorised in writing by the 18
Secretary or the Chief Executive of Roads and Maritime Services is to be provided 19
by the Secretary or the Chief Executive of Roads and Maritime Services with a 20
certificate of identification. 21
(3) An authorised officer who is provided with a certificate of identification or is an 22
investigator must, when exercising on any premises any function of the authorised 23
officer or investigator under this Act, produce the officer's or investigator's 24
certificate of identification to any person apparently in charge of the premises who 25
requests its production. 26
150 Purposes for which powers of authorised officer may be exercised 27
An authorised officer may exercise the powers conferred by this Division for any of 28
the following purposes: 29
(a) ascertaining whether the provisions of this Act or the regulations are being 30
complied with or have been contravened, 31
(b) ascertaining whether the provisions of Part 4.5 of the Road Transport Act 2013 32
are being complied with or have been contravened, 33
(c) investigating a complaint made under this Act, 34
(d) obtaining evidence, records or information in relation to a matter that 35
constitutes or may constitute a contravention of a provision referred to in 36
paragraph (a) or (b). 37
151 Powers of entry, inspection etc 38
(1) An authorised officer may enter and inspect at any reasonable time any premises that 39
the officer believes on reasonable grounds are used for the carrying on of the business 40
or a trade for which a licence is required under this Act, whether or not the business 41
or trade is being carried on by the holder of a licence. 42
(2) An authorised officer who enters premises under this section or under the authority 43
of a search warrant under this Part may do any one or more of the following: 44
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Part 7 Enforcement and offences
(a) require any person on those premises to produce any records in the possession 1
or under the control of that person relating to the carrying on of the business 2
of a motor dealer, motor vehicle repairer or motor vehicle recycler and (in the 3
case of records stored electronically) to produce any such record in written 4
form, 5
(b) require any person on those premises to produce any register required to be 6
kept at those premises under this Act and to produce any such register in 7
written form, 8
(c) inspect, take copies of or extracts from, or make notes from, any such records 9
(including registers), and for that purpose may take temporary possession of 10
any such records (including registers), 11
(d) take possession of any such records (including registers) if the authorised 12
officer considers it necessary to do so for the purpose of obtaining evidence or 13
protecting evidence from destruction, 14
(e) take such photographs, films and audio, video and other recordings as the 15
authorised officer considers necessary, 16
(f) search for and examine any motor vehicles and parts and accessories of motor 17
vehicles, 18
(g) require any person on those premises to answer questions or otherwise furnish 19
information in relation to records at the premises or any statement made by the 20
person, 21
(h) require the owner or occupier of those premises to provide the authorised 22
officer with such assistance and facilities as is or are reasonably necessary to 23
enable the authorised officer to exercise the functions of an authorised officer 24
under this section. 25
(3) An authorised officer is not entitled to enter a part of premises used for residential 26
purposes, except: 27
(a) with the consent of the occupier of the part, or 28
(b) under the authority of a search warrant. 29
(4) The regulations may make provision with respect to the keeping of a register under 30
this Act during any period in which the register is in the possession of an authorised 31
officer. 32
152 Power of authorised officer to obtain information, records and evidence 33
(1) An authorised officer may, by notice in writing given to a person, require the person 34
to produce to the authorised officer, in accordance with the notice, specified records 35
or records of a specified class or description to an authorised officer at a specified 36
time or within a specified period. 37
(2) An authorised officer may inspect and take notes, copies and extracts of or from any 38
record or statement produced under this section. 39
153 Police entry power 40
(1) For the purpose of searching for, or obtaining information concerning, stolen motor 41
vehicles and stolen parts and accessories of motor vehicles, a police officer may: 42
(a) enter premises that the police officer suspects on reasonable grounds are used 43
for the carrying on of a business or trade for which a licence is required, 44
whether or not the business or trade is being carried on by the holder of a 45
licence, and 46
(b) search for and examine any motor vehicles and parts and accessories of motor 47
vehicles on those premises, and 48
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Part 7 Enforcement and offences
(c) require the production of records, and 1
(d) inspect and require explanations of any record, and 2
(e) take notes, copies and extracts of or from any record or statement produced 3
under this section. 4
(2) The power of a police officer to enter premises does not permit entry to any part of 5
premises used for residential purposes unless: 6
(a) a person holds a licence granted in respect of the premises, or 7
(b) the police officer is acting pursuant to a search warrant. 8
(3) In this section: 9
stolen means stolen or otherwise unlawfully obtained. 10
154 Search warrants 11
(1) An authorised officer may apply to an issuing officer for a search warrant if the 12
applicant has reasonable grounds for believing that a provision of this Act or the 13
regulations has been or is being contravened on premises. 14
(2) An issuing officer to whom an application for a search warrant is made under this 15
section may, if satisfied that there are reasonable grounds for doing so, issue a search 16
warrant authorising an authorised officer named in the warrant, when accompanied 17
by a police officer, and any other person named in the warrant: 18
(a) to enter the premises concerned, and 19
(b) to search the premises for evidence of a contravention of this Act or the 20
regulations. 21
(3) Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 22
applies to a search warrant issued under this section. 23
(4) In this section: 24
issuing officer means an authorised officer within the meaning of the Law 25
Enforcement (Powers and Responsibilities) Act 2002. 26
155 Obstruction and other related offences 27
A person must not: 28
(a) without reasonable excuse, refuse or fail to comply with any notice given or 29
requirement made, or to answer any question asked, by an authorised officer 30
or a police officer under this Division, or 31
(b) provide information or give evidence in purported compliance with a 32
requirement made or question asked by an authorised officer or police officer 33
under this Division knowing the information or evidence to be false or 34
misleading in a material particular, or 35
(c) wilfully delay, hinder or obstruct an authorised officer or a police officer in the 36
exercise of the officer's functions under this Act, or 37
(d) conceal or attempt to conceal any motor vehicle or part of or accessory for a 38
motor vehicle that an authorised officer or a police officer is entitled to search 39
for and examine under this Division. 40
Maximum penalty: 20 penalty units. 41
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Part 7 Enforcement and offences
Division 2 Proceedings for offences 1
156 Proceedings 2
(1) Proceedings for an offence against this Act or the regulations may be taken and 3
prosecuted only by the following persons: 4
(a) the Secretary or, in the name of the Secretary, a person acting with the 5
authority of the Secretary, 6
(b) a police officer, 7
(c) the Chief Executive of Roads and Maritime Services or, in the name of the 8
Chief Executive, a person acting with the authority of the Chief Executive. 9
(2) Proceedings for an offence under this Act or the regulations (other than proceedings 10
for an indictable offence) may be dealt with: 11
(a) summarily before the Local Court, or 12
(b) summarily before the Supreme Court in its summary jurisdiction. 13
(3) The maximum monetary penalty that the Local Court may impose in proceedings for 14
an offence under this Act or the regulations is the maximum penalty specified for that 15
offence or 100 penalty units, whichever is the lesser. 16
(4) Any proceedings for an offence against this Act or the regulations must be 17
commenced not later than 1 year after the time when the offence is alleged to have 18
been committed. 19
(5) Despite subsection (4), proceedings for an offence under Division 1 of Part 2 or 20
section 52, 53 or 54 may be commenced at any time within 3 years after the time 21
when the offence is alleged to have been committed. 22
157 Additional orders after findings of guilt 23
(1) If a person is found guilty of an offence under this Act or the regulations, the court 24
may, in addition to any other penalty it imposes, make any of the following: 25
(a) a finding or determination relating to an act or omission of the person found 26
guilty, 27
(b) an order for the payment of compensation, 28
(c) an order for the carrying out of any work, 29
(d) an order ancillary to any such order. 30
(2) A court may make an order against a person under this section even though 31
proceedings for any other order against the person under this Act have been 32
commenced. 33
(3) The powers of a court under this section are in addition to any other powers of the 34
court under this Act. 35
158 Penalty notices 36
(1) A penalty notice officer may serve a penalty notice on a person if it appears to the 37
officer that the person has committed an offence against this Act or the regulations, 38
being an offence prescribed by the regulations as a penalty notice offence. 39
(2) A penalty notice is a notice to the effect that, if the person served does not wish to 40
have the matter determined by a court, the person can pay, within the time and to the 41
person specified in the notice, the amount of the penalty prescribed by the regulations 42
for the offence if dealt with under this section. 43
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(3) A penalty notice under this section is declared to be a penalty notice for the purposes 1
of the Fines Act 1996. 2
(4) A penalty notice may be served personally or by post. 3
(5) If the amount of penalty prescribed for an alleged offence is paid under this section, 4
no person is liable to any further proceedings for the alleged offence. 5
(6) Payment under this section is not to be regarded as an admission of liability for the 6
purpose of, and does not in any way affect or prejudice, any civil claim, action or 7
proceeding arising out of the same occurrence. 8
(7) The regulations may: 9
(a) prescribe an offence for the purposes of this section by specifying the offence 10
or by referring to the provision creating the offence, and 11
(b) prescribe the amount of penalty payable for the offence if dealt with under this 12
section, and 13
(c) prescribe different amounts of penalties for different offences or classes of 14
offences. 15
(8) The amount of a penalty prescribed under this section for an offence is not to exceed 16
the maximum amount of penalty that could be imposed for the offence by a court. 17
(9) This section does not limit the operation of any other provision of, or made under, 18
this or any other Act relating to proceedings that may be taken in respect of offences. 19
(10) In this section, penalty notice officer means a person prescribed by the regulations 20
for the purposes of this section. 21
Division 3 Liability of persons involved in corporations 22
159 Liability of directors etc for offences by corporation--offences attracting executive 23
liability 24
(1) For the purposes of this section, an executive liability offence is an offence against 25
any of the following provisions of this Act that is committed by a corporation: 26
(a) section 12, 27
(b) section 15 (1) or 16 (1). 28
(2) A person commits an offence against this section if: 29
(a) a corporation commits an executive liability offence, and 30
(b) the person is: 31
(i) a director of the corporation, or 32
(ii) an individual who is involved in the management of the corporation and 33
who is in a position to influence the conduct of the corporation in 34
relation to the commission of the executive liability offence, and 35
(c) the person: 36
(i) knows or ought reasonably to know that the executive liability offence 37
(or an offence of the same type) would be or is being committed, and 38
(ii) fails to take all reasonable steps to prevent or stop the commission of 39
that offence. 40
Maximum penalty: The maximum penalty for the executive liability offence if 41
committed by an individual. 42
(3) The prosecution bears the legal burden of proving the elements of the offence against 43
this section. 44
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Part 7 Enforcement and offences
(4) The offence against this section can only be prosecuted by a person who can bring a 1
prosecution for the executive liability offence. 2
(5) This section does not affect the liability of the corporation for the executive liability 3
offence, and applies whether or not the corporation is prosecuted for, or convicted of, 4
the executive liability offence. 5
(6) This section does not affect the application of any other law relating to the criminal 6
liability of any persons (whether or not directors or other managers of the 7
corporation) who are accessories to the commission of the executive liability offence 8
or are otherwise concerned in, or party to, the commission of the executive liability 9
offence. 10
(7) In this section: 11
director has the same meaning it has in the Corporations Act 2001 of the 12
Commonwealth. 13
reasonable steps, in relation to the commission of an executive liability offence, 14
includes, but is not limited to, such action (if any) of the following kinds as is 15
reasonable in all the circumstances: 16
(a) action towards: 17
(i) assessing the corporation's compliance with the provision creating the 18
executive liability offence, and 19
(ii) ensuring that the corporation arranged regular professional assessments 20
of its compliance with the provision, 21
(b) action towards ensuring that the corporation's employees, agents and 22
contractors are provided with information, training, instruction and 23
supervision appropriate to them to enable them to comply with the provision 24
creating the executive liability offence so far as the provision is relevant to 25
them, 26
(c) action towards ensuring that: 27
(i) the plant, equipment and other resources, and 28
(ii) the structures, work systems and other processes, 29
relevant to compliance with the provision creating the executive liability 30
offence are appropriate in all the circumstances, 31
(d) action towards creating and maintaining a corporate culture that does not 32
direct, encourage, tolerate or lead to non-compliance with the provision 33
creating the executive liability offence. 34
160 Liability of directors etc for offences by corporation--accessory to the commission 35
of the offences 36
(1) For the purposes of this section, a corporate offence is an offence against this Act or 37
the regulations that is capable of being committed by a corporation, whether or not it 38
is an executive liability offence referred to in section 159. 39
(2) A person commits an offence against this section if: 40
(a) a corporation commits a corporate offence, and 41
(b) the person is: 42
(i) a director of the corporation, or 43
(ii) an individual who is involved in the management of the corporation and 44
who is in a position to influence the conduct of the corporation in 45
relation to the commission of the corporate offence, and 46
(c) the person: 47
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Motor Dealers and Repairers Bill 2013 [NSW]
Part 7 Enforcement and offences
(i) aids, abets, counsels or procures the commission of the corporate 1
offence, or 2
(ii) induces, whether by threats or promises or otherwise, the commission 3
of the corporate offence, or 4
(iii) conspires with others to effect the commission of the corporate offence, 5
or 6
(iv) is in any other way, whether by act or omission, knowingly concerned 7
in, or party to, the commission of the corporate offence. 8
Maximum penalty: The maximum penalty for the corporate offence if committed by 9
an individual. 10
(3) The prosecution bears the legal burden of proving the elements of the offence against 11
this section. 12
(4) The offence against this section can only be prosecuted by a person who can bring a 13
prosecution for the corporate offence. 14
(5) This section does not affect the liability of the corporation for the corporate offence, 15
and applies whether or not the corporation is prosecuted for, or convicted of, the 16
corporate offence. 17
(6) This section does not affect the application of any other law relating to the criminal 18
liability of any persons (whether or not directors or other managers of the 19
corporation) who are concerned in, or party to, the commission of the corporate 20
offence. 21
Division 4 Evidentiary provisions 22
161 Evidence of licensing matters and exemptions 23
A document purporting to be a certificate signed by the Secretary and certifying the 24
following matters is evidence of the matters certified in all courts and before all 25
persons and bodies authorised by law to receive evidence: 26
(a) that a specified person is or is not or was or was not on any date or during any 27
specified period the holder of a licence, 28
(b) that a specified licence is or is not or was or was not subject to a specified 29
condition on any date or during any specified period, 30
(c) that a specified class of repair work is or is not or was or was not specified for 31
a tradesperson's certificate on any date or during any specified period, 32
(d) that a specified place of business is or is not or was or was not specified in a 33
specified licence on any date or during any specified period, 34
(e) that a person or thing is or is not or was or was not on any date or during any 35
specified period exempted from a specified provision of this Act or the 36
regulations or the whole of this Act or the regulations, 37
(f) that any such exemption is or is not or was or was not subject to a specified 38
condition on any date or during any specified period. 39
162 Evidence as to entries in registers 40
A register required to be kept by this Act, whether or not the register has been kept 41
in or to the effect of the prescribed form, is evidence in proceedings in all courts and 42
before all persons and bodies authorised by law to receive evidence, of the matters 43
required by or under this Act to be recorded in it. An entry in any such register is 44
evidence of the matters contained in the entry. 45
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Motor Dealers and Repairers Bill 2013 [NSW]
Part 7 Enforcement and offences
163 Evidence of carrying on business as motor dealer and advertising 1
(1) If in any proceedings for an offence under this Act or the regulations it is proved that 2
a person sold, or offered or displayed for sale, more than 4 motor vehicles within a 3
12 month period to any other person or persons (other than a motor dealer), it is 4
presumed in the absence of evidence to the contrary that the person was carrying on 5
business as a motor dealer during that period. 6
(2) Nothing in subsection (1) precludes a person who sells, or offers or displays for sale, 7
4 or less motor vehicles within a 12 month period to any other person or persons from 8
being found to be a motor dealer. 9
(3) If in any proceedings for an offence under this Act or the regulations it is proved that 10
a statement has been published containing identifying particulars of a person, or the 11
agent of a person, who is a person specified in subsection (4), the person is presumed 12
in the absence of evidence to the contrary to have caused the statement to be 13
published on the day on which it was published. 14
(4) The specified persons are as follows: 15
(a) the owner or supplier of any motor vehicle, substantially demolished or 16
substantially dismantled motor vehicle or parts of or accessories for motor 17
vehicles that the statement promotes or is intended to promote, 18
(b) the supplier of any services relating to motor vehicles, parts or accessories 19
referred to in paragraph (a) that the statement promotes or is intended to 20
promote, 21
(c) a person who has, otherwise than as an owner, an interest in any motor 22
vehicles, parts or accessories referred to in paragraph (a) or the supply of any 23
services referred to in paragraph (b) that the statement promotes or is intended 24
to promote. 25
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Motor Dealers and Repairers Bill 2013 [NSW]
Part 8 Motor Dealers and Repairers Compensation Fund
Part 8 Motor Dealers and Repairers Compensation Fund 1
164 Meaning of "failure to account" by motor dealer 2
(1) In this Part, a reference to a failure to account by a motor dealer is a reference to a 3
failure by the motor dealer to account for money or other valuable property entrusted 4
to the motor dealer or an associate of the motor dealer in the course of the carrying 5
on of the motor dealer's business as a motor dealer. 6
(2) Without limiting subsection (1), the failure of a motor dealer to return a deposit, or 7
other money or thing, given to the dealer by a person in respect of the purchase of a 8
motor vehicle that did not proceed is a failure to account. 9
(3) This Part applies only to a failure to account that arises from an act or omission of 10
the motor dealer or an associate of the motor dealer. 11
(4) In this section: 12
associate of a motor dealer means: 13
(a) an employee or agent of the motor dealer, or 14
(b) a person who has the apparent control or charge for the time being of the 15
business of the motor dealer or of any place at which that business is being 16
carried on. 17
165 Motor Dealers and Repairers Compensation Fund 18
There is to be established in the Special Deposits Account a fund called the Motor 19
Dealers and Repairers Compensation Fund. The Secretary is to administer the 20
Compensation Fund. 21
166 Money payable to Compensation Fund 22
(1) The Compensation Fund is to consist of the following: 23
(a) amounts of licence fees determined in accordance with the regulations, 24
(b) contributions required to be made to the Compensation Fund as a result of 25
disciplinary action taken against a person, 26
(c) any amounts required or permitted to be paid to the credit of the Compensation 27
Fund under this or any other Act, 28
(d) income from the investment of the Compensation Fund. 29
(2) The regulations are to provide for the proportion of the total licence fees or other fees 30
payable under this Act that are to be paid to the Compensation Fund instead of the 31
Consolidated Fund. 32
167 Money payable from Compensation Fund 33
The following may be paid from the Compensation Fund: 34
(a) the amount of any loss certified by the Secretary under this Part, 35
(b) legal costs incurred by the Secretary in connection with claims against the 36
Compensation Fund, 37
(c) the costs of administering the Compensation Fund, 38
(d) any amount that is required or permitted to be paid from the Compensation 39
Fund under this or any other Act. 40
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Motor Dealers and Repairers Bill 2013 [NSW]
Part 8 Motor Dealers and Repairers Compensation Fund
168 Matters for which claims may be made 1
(1) The following losses incurred by a person are losses for which the person may claim 2
compensation under this Part: 3
(a) a loss because the repair work carried out on a motor vehicle by or on behalf 4
of a motor vehicle repairer or by a tradesperson was not competently done, 5
(b) a loss incurred in connection with a motor vehicle because a motor dealer 6
failed to comply with this Act or the regulations, 7
(c) a loss incurred in connection with a motor vehicle because of a breach by a 8
motor dealer of a contract made by the person with the motor dealer, but only 9
if the breach is of a kind prescribed by the regulations for the purposes of this 10
section, 11
(d) a loss incurred in connection with a motor vehicle because the motor dealer 12
failed to give to the person an unencumbered title to the motor vehicle, 13
(e) a loss incurred because of a failure to account by a motor dealer. 14
(2) The following losses incurred by a person are not losses for which the person may 15
claim compensation under this Part: 16
(a) a loss for which compensation has been paid under this Part or for which the 17
Secretary has previously given a certificate under this Part, 18
(b) a loss incurred by the person when acting in the capacity of a motor dealer, 19
motor vehicle repairer, financier or motor vehicle recycler, 20
(c) a loss consisting of or arising from death or personal injury, 21
(d) a loss of or damage to property other than a motor vehicle, 22
(e) a loss of or damage to improvements made to a motor vehicle after the motor 23
vehicle was purchased from the motor dealer concerned, 24
(f) a loss incurred by the claimant (including a statutory body representing the 25
Crown) in connection with any repair work done by an employee of the 26
claimant. 27
(3) The regulations may prescribe other losses for which a claim for compensation may, 28
or may not, be made under this Part. 29
169 Making of claims 30
(1) A person may apply to the Secretary in writing for compensation under this Part. 31
(2) An application is to be accompanied by the information or documents (if any) 32
specified by the regulations or that the Secretary requires in any particular case. 33
(3) A claim for compensation under this Part must be made: 34
(a) within 12 months after the loss is incurred or the claimant becomes aware of 35
the loss, or 36
(b) within such further period as the Secretary may in any case allow. 37
170 Determination of claims 38
(1) The Secretary may allow, wholly or partly, a claim for compensation if the Secretary 39
is satisfied that it relates to a loss for which compensation may be paid under this 40
Part. 41
(2) The Secretary may disallow any claim, wholly or partly, in appropriate cases. In 42
particular, the Secretary may disallow a claim to the extent that the loss was suffered 43
as a result of a failure to mitigate loss or was occasioned by unreasonable delay in 44
making a claim. 45
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Motor Dealers and Repairers Bill 2013 [NSW]
Part 8 Motor Dealers and Repairers Compensation Fund
(3) The Secretary must disallow a claim in connection with a loss unless the motor 1
dealer, motor vehicle repairer or tradesperson involved: 2
(a) was at the time of the relevant act or omission from which the loss arose the 3
holder of the applicable licence, or 4
(b) the Secretary is satisfied that the claimant believed on reasonable grounds that 5
the motor dealer, motor vehicle repairer or tradesperson was the holder of such 6
a licence. 7
(4) The Secretary must disallow a claim unless the Secretary is satisfied that the claimant 8
has taken all reasonable steps to exercise any legal remedies or other rights of action 9
available to the claimant in respect of the loss. 10
(5) The Secretary must give a claimant for compensation notice in writing of the 11
Secretary's decision as to the claim. 12
171 Certification of loss 13
(1) The Secretary is to certify the amount of loss when the Secretary allows a claim for 14
compensation under this Part. 15
(2) The amount certified is to be the lesser of the actual amount of the loss or $40,000. 16
172 Review of claim determinations 17
(1) A claimant whose claim for compensation under this Part is wholly or partly 18
disallowed may request the Secretary in writing to reconsider the decision. 19
(2) A request under this section must be made within 12 months of the decision to 20
disallow the claim. 21
(3) On receiving a request, the Secretary is to reconsider the claim and may allow or 22
disallow the whole or part of the claim. 23
(4) The Secretary must give a claimant for compensation notice in writing of the 24
Secretary's decision as to the claim. 25
(5) A claimant may not request more than one reconsideration in respect of any 26
particular claim. 27
(6) A decision of the Secretary under this section is final. 28
173 Subrogation 29
(1) On payment out of the Compensation Fund in settlement in whole or in part of a 30
claim under this Act, the Crown is subrogated, to the extent of the payment, to all the 31
rights and remedies of the claimant against the person in relation to whom the claim 32
arose, or any other person. 33
(2) A certificate given by the Secretary certifying that a specified amount has been paid 34
out of the Compensation Fund in settlement in whole or in part of a claim under this 35
Act is evidence of the matter certified. 36
(3) In the enforcement of any rights or remedies to which the Crown is subrogated under 37
this section for the purpose of recovering an amount paid out of the Compensation 38
Fund, the amount is taken to be a debt due to the Crown and may be recovered 39
accordingly. 40
(4) The Secretary may exercise the rights and remedies to which the Crown is subrogated 41
under this section in the name of the Crown or in the name of the claimant concerned. 42
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Motor Dealers and Repairers Bill 2013 [NSW]
Part 8 Motor Dealers and Repairers Compensation Fund
174 Recovery of payments from directors 1
(1) This section applies when the payment of an amount out of the Compensation Fund 2
has been made as a consequence of the act or omission of a corporation (including 3
the payment of any amount to an administrator of the affairs and property of the 4
corporation). 5
(2) The Secretary may recover, jointly or severally, from any person who was a director 6
or persons who were directors of the corporation at the time of the relevant act or 7
omission, the amount of the payment as a debt in any court of competent jurisdiction. 8
(3) In any proceedings for the recovery of an amount under this section, judgment is not 9
to be entered against a defendant who proves that the act or omission occurred 10
without the defendant's express or implied authority or consent. 11
(4) Proceedings may be brought for the recovery of an amount under this section whether 12
or not the person against whom the proceedings are brought, or any other person, has 13
been convicted of an offence in respect of the act or omission as a consequence of 14
which the amount was paid. 15
(5) When this section renders a person or persons liable to pay an amount as a 16
consequence of an act or omission of a corporation, the payment by the person or any 17
of those persons of the whole or any part of the amount does not render the 18
corporation liable to the person concerned in respect of the amount so paid. 19
(6) An amount recovered by the Secretary under this section is payable to the 20
Compensation Fund. 21
175 Deferral of Compensation Fund payments 22
(1) If the amount in the Compensation Fund is not sufficient to pay all the amounts 23
certified by the Secretary in any financial year, the unpaid amounts are to be charged 24
against future receipts of the Fund and are to be paid when sufficient funds are 25
available. 26
(2) If a number of claims against the Compensation Fund cannot be satisfied because the 27
Fund is not sufficient, the Secretary has an unfettered discretion to determine the 28
division and allocation of the available money among the various parties (whether or 29
not to the exclusion of any one of them). 30
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Motor Dealers and Repairers Bill 2013 [NSW]
Part 9 Miscellaneous
Part 9 Miscellaneous 1
176 Reviews by Administrative Decisions Tribunal 2
(1) If the Secretary: 3
(a) refuses to grant an application for, or suspends or cancels, a licence, or 4
(b) imposes a condition on a licence, or 5
(c) imposes a disqualification referred to in Division 2 of Part 3, 6
the applicant for the licence, the licence holder or former licence holder or the person 7
disqualified may apply to the Administrative Decisions Tribunal for a review of the 8
decision of the Secretary. 9
(2) On an application for a review of a decision of the Secretary to refuse to grant a 10
licence because the applicant had been convicted of or found guilty of an offence the 11
Administrative Decisions Tribunal may determine that the fact should be ignored on 12
one or more of the following grounds: 13
(a) the triviality of the acts or omissions giving rise to the offence concerned, 14
(b) the time that has passed since the offence concerned was committed, 15
(c) the subsequent good behaviour of the offender, 16
(d) any other ground prescribed by the regulations. 17
(3) In determining an application for a review of any decision to refuse to grant, or to 18
cancel, a licence because of information provided to the Secretary by the 19
Commissioner of Police, the Administrative Decisions Tribunal (and any Appeal 20
Panel in determining any appeal against such a review under the Administrative 21
Decisions Tribunal Act 1997): 22
(a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose 23
any criminal intelligence, and 24
(b) in order to prevent the disclosure of any criminal intelligence, is to receive 25
evidence and hear argument in the absence of the public, the applicant for 26
review and the applicant's representative and any other interested party, 27
unless the Commissioner of Police approves otherwise. 28
177 Register of licences 29
(1) The Secretary must keep a register of licences issued under this Act. 30
(2) The register is to be in the form determined by the Secretary and is to be available for 31
inspection by the public. 32
(3) The regulations may prescribe particulars of licences to be included in the register. 33
(4) The regulations may prescribe the fees (if any) for inspections of the register or 34
copies of information contained on the register. 35
(5) The Secretary may, on application by a person accompanied by the fee (if any) 36
prescribed by the regulations, issue a certificate certifying that a person was or was 37
not, on a specified date or during a specified period, the holder of a specified licence. 38
178 Disclosure of information 39
A person must not disclose any information obtained in connection with the 40
administration or execution of this Act unless that disclosure is made: 41
(a) with the consent of the person from whom the information was obtained, or 42
(b) in connection with the administration or execution of this Act (or any such 43
other Act), or 44
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Motor Dealers and Repairers Bill 2013 [NSW]
Part 9 Miscellaneous
(c) for the purposes of any legal proceedings arising out of this Act (or any such 1
other Act) or of any report of any such proceedings, or 2
(d) in accordance with a requirement imposed under the Ombudsman Act 1974, or 3
(e) with other lawful excuse. 4
Maximum penalty: 20 penalty units. 5
179 Saving of rights and remedies under other law 6
This Act does not, except as provided by this Act, limit, restrict or otherwise affect 7
any right or remedy of a person under any other law. 8
180 Contracting out void 9
(1) The provisions of this Act have effect despite any stipulation to the contrary and no 10
contract or agreement made or entered into before, on or after the commencement of 11
this section operates to annul, vary or exclude any of the provisions of this Act. 12
(2) To avoid doubt, a stipulation to the contrary includes a provision in a contract that 13
the law applicable to a contract is the law of a jurisdiction other than this State. 14
181 No indemnity for motor dealers by previous owners 15
(1) A motor dealer is not entitled to be indemnified by a previous owner of a motor 16
vehicle for any costs or expenses incurred because of the operation of this Act by the 17
motor dealer in relation to the sale by the motor dealer of the motor vehicle. 18
(2) Any contract or arrangement that provides directly, or indirectly, for such an 19
indemnity is void to the extent that it so provides. 20
(3) This section does not apply to an indemnity provided by a previous owner who is a 21
motor dealer or a motor vehicle recycler or who carries on the business of 22
manufacturing or assembling motor vehicles. 23
182 Provision of information 24
(1) An officer of a relevant authority in charge of any record or information must, on 25
request, supply the record or information to the Secretary if access to the record or 26
information is reasonably necessary for the proper exercise of any function of the 27
Secretary under this Act relating to licensing, disciplinary proceedings, 28
investigations or law enforcement. 29
(2) It is the duty of the Secretary to supply to the Commissioner of Police, or any police 30
officer or member of the NSW Police Force who is authorised by the Commissioner 31
for the purposes of this section, the information relating to licences and other matters 32
that is reasonably necessary for the performance by police officers of their law 33
enforcement duties. 34
(3) The Secretary may, in accordance with an agreement approved by the Minister for 35
the purposes of this subsection and entered into with an authority of this State or 36
another State or a Territory or the Commonwealth, supply to that authority a record 37
or information provided to the Secretary under this section. 38
(4) The Minister may approve an agreement for the purposes of subsection (3) only if it 39
relates to one or more of the following: 40
(a) offences, or the regulation of conduct, relating to motor vehicles or motor 41
dealing or motor vehicle repairs, 42
(b) law enforcement by an authority of another State or a Territory or of the 43
Commonwealth. 44
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Motor Dealers and Repairers Bill 2013 [NSW]
Part 9 Miscellaneous
(5) This section does not apply to the supply of a record or information to which the 1
Criminal Records Act 1991 applies. 2
(6) In this section: 3
relevant authority means: 4
(a) the NSW Police Force, or 5
(b) Roads and Maritime Services, or 6
(c) any other authority prescribed by the regulations for the purposes of this 7
definition. 8
183 False or misleading register entries 9
A person must not, in respect of any particulars or information required under this 10
Act to be entered in a register, make an entry in the register knowing it to be false or 11
misleading in a material particular. 12
Maximum penalty: 20 penalty units. 13
184 Tender of documents for signature 14
A person must not submit or tender or cause or permit to be submitted or tendered a 15
document that is, or is evidence of, the sale of a motor vehicle, to any person for that 16
person's signature unless at the time of the submission or tendering of the document 17
all material particulars in the document have been completed. 18
Maximum penalty: 20 penalty units. 19
185 Service of documents 20
(1) A document that is authorised or required by this Act or the regulations to be given 21
to any person may be given by: 22
(a) in the case of a natural person: 23
(i) delivering it to the person personally, or 24
(ii) sending it by post to the address specified by the person for the giving 25
or service of documents or, if no such address is specified, the 26
residential or business address of the person last known to the person 27
giving or serving the document, or 28
(iii) sending it by facsimile transmission to the facsimile number of the 29
person or by email to the internet address of the person, or 30
(b) in the case of a body corporate: 31
(i) leaving it with a person apparently of or above the age of 16 years at, or 32
by sending it by post to, the head office, a registered office or a principal 33
office of the body corporate or to an address specified by the body 34
corporate for the giving or service of documents, or 35
(ii) sending it by facsimile transmission to the facsimile number of the body 36
corporate or by email to the internet address of the body corporate. 37
(2) Nothing in this section affects the operation of any provision of a law or of the rules 38
of a court authorising a document to be given to or served on a person in any other 39
manner. 40
186 Regulations 41
(1) The Governor may make regulations, not inconsistent with this Act, for or with 42
respect to any matter that by this Act is required or permitted to be prescribed or that 43
is necessary or convenient to be prescribed for carrying out or giving effect to this 44
Act. 45
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Motor Dealers and Repairers Bill 2013 [NSW]
Part 9 Miscellaneous
(2) In particular, the regulations may make provision for or with respect to the following 1
matters: 2
(a) the exemption, unconditionally or subject to conditions, of persons or things 3
or classes of persons or things from any or all of the provisions of this Act, 4
(b) fees for applications under this Act and licence fees, 5
(c) fees for any inspection made or information supplied by the Secretary, 6
(d) the waiver or refund of fees payable under this Act or the regulations, 7
(e) regulating the conduct of any person who is required to hold a motor dealer's 8
licence, motor vehicle repairer's licence or motor vehicle recycler's licence, or 9
of the person's employees or agents, in carrying on the business to which the 10
licence relates, 11
(f) prohibiting or regulating the employment by any person who is required to 12
hold a licence of persons convicted of offences under this Act or of offences 13
involving fraud or dishonesty or other prescribed offences, or of persons 14
whose applications for licences have been refused or whose licences have been 15
revoked, 16
(g) requiring any person who is required to hold a licence, or the person's 17
employees or agents, to keep records and report to specified persons as to 18
offences involving motor vehicles or parts of motor vehicles, 19
(h) providing for the form and content of advertisements by licence holders, 20
including: 21
(i) requiring the inclusion of specified information in advertisements or the 22
use of specified statements in advertisements, and 23
(ii) prohibiting the inclusion of specified information in advertisements or 24
the use of specified statements in advertisements, 25
(i) regulating the sale of motor vehicles on consignment, 26
(j) providing for the keeping and management of trust accounts by the holders of 27
motor dealers' licences, 28
(k) providing for the making of claims against the Compensation Fund, including 29
the form and manner in which claims may be made and the time within which 30
claims are to be made, 31
(l) requiring a person who is granted a licence to make an initial contribution to 32
the Compensation Fund, 33
(m) requiring a licence holder to provide information about any partner of the 34
licence holder in a business the subject of the licence. 35
(3) A regulation may create an offence punishable by a penalty not exceeding 20 penalty 36
units. 37
187 Delegation 38
The Secretary may delegate the exercise of any function of the Secretary under this 39
Act (other than this power of delegation) to: 40
(a) any member of staff of the Public Service agency of which the Secretary is the 41
head, or 42
(b) any person, or any class of persons, authorised for the purposes of this section 43
by the regulations. 44
188 Exclusion of personal liability 45
Anything done or omitted to be done by the Secretary or an authorised officer or a 46
person acting under the direction of the Secretary or an authorised officer does not 47
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Motor Dealers and Repairers Bill 2013 [NSW]
Part 9 Miscellaneous
subject the Secretary, authorised officer, or the person so acting, personally to any 1
action, liability, claim or demand if the thing was done or omitted to be done, in good 2
faith for the purpose of administering this Act. 3
189 Act to bind Crown 4
This Act binds the Crown in right of New South Wales and, in so far as the legislative 5
power of the Parliament of New South Wales permits, the Crown in all its other 6
capacities. 7
190 Repeals 8
The Motor Dealers Act 1974 No 52 and the Motor Vehicle Repairs Act 1980 No 71 9
are repealed. 10
191 Review of Act 11
(1) The Minister is to review this Act to determine whether the policy objectives of the 12
Act remain valid and whether the terms of the Act remain appropriate for securing 13
those objectives. 14
(2) The review is to be undertaken as soon as possible after the period of 5 years from 15
the commencement of this Act. 16
(3) A report on the outcome of the review is to be tabled in each House of Parliament 17
within 12 months after the end of the period of 5 years. 18
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Motor Dealers and Repairers Bill 2013 [NSW]
Schedule 1 Administration of businesses
Schedule 1 Administration of businesses 1
(Section 130) 2
1 Interpretation 3
Words and expressions used in this Schedule have the same meanings as they have 4
in Division 5 of Part 5. 5
2 General duty of administrator 6
On the appointment of an administrator taking effect, the administrator must: 7
(a) subject to and in accordance with any directions given to the administrator by 8
the Supreme Court, administer the affairs of the person subject to 9
administration until the appointment is terminated, and 10
(b) subject to this Act, acquire or take into possession and administer all property 11
to which that person is or appears to be entitled. 12
3 Administrator may obtain property 13
(1) An administrator may, in the administrator's own name or that of the person subject 14
to administration, apply to the Supreme Court for an order for the transfer or delivery 15
of property to the administrator if the person subject to administration fails, wholly 16
or partly, to comply with a requirement to: 17
(a) transfer or deliver to the administrator property in the possession of the person, 18
or 19
(b) permit the administrator to acquire or take possession of property in the 20
possession of the person. 21
(2) The Supreme Court may make the order applied for, subject to such conditions (if 22
any) as it thinks fit to impose. 23
(3) The Supreme Court may, on application by an administrator, if it appears to the Court 24
that an order made under this clause is not complied with, authorise a police officer, 25
or the administrator or some other person and a police officer: 26
(a) to enter any premises or other place specified in the order, and 27
(b) to search for any property which the administrator is entitled to acquire or take 28
into possession, and 29
(c) to seize any such property and remove it to such place as the administrator 30
thinks fit. 31
(4) Any person who, without reasonable excuse, obstructs, hinders or delays any police 32
officer, the administrator or other person in the exercise of a power conferred by an 33
order made under subclause (3) is guilty of contempt of the Supreme Court and may 34
be punished accordingly. 35
(5) In this clause, property in the possession of a person includes property at the disposal 36
of or under the control of the person. 37
4 Dealings with property by administrator 38
(1) An administrator: 39
(a) may deal with any property which the administrator has acquired or of which 40
the administrator has taken possession under this Act in any manner in which 41
the person subject to administration might lawfully have dealt with that 42
property, and 43
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Motor Dealers and Repairers Bill 2013 [NSW]
Schedule 1 Administration of businesses
(b) must, as soon as practicable after acquiring or taking possession of that 1
property, deliver that property to such persons as appear to the administrator 2
to be lawfully entitled to it. 3
(2) An administrator must apply the property acquired and held by the administrator, or 4
in the possession of the administrator in his or her capacity as administrator, in the 5
following order for the following purposes: 6
(a) firstly, in reimbursing the Secretary in respect of all amounts paid out of the 7
Compensation Fund in settlement in whole or in part of claims made against 8
the Fund in respect of a failure or default of the person subject to 9
administration, 10
(b) secondly, in satisfying or partially satisfying the amounts of claims against 11
that person with respect to the business concerned to the extent that those 12
claims have not otherwise been fully satisfied, 13
(c) thirdly, in paying the amounts incurred by the administrator as expenses of the 14
administration. 15
(3) Amounts referred to in subclause (2) rank equally between themselves and are to be 16
paid in full unless the property referred to in that subclause is insufficient for those 17
amounts to be paid, in which case the amounts are to abate in equal proportions 18
between themselves. 19
(4) Any property remaining after that application is to be held in trust for the person 20
subject to administration. 21
5 Powers in relation to property 22
(1) Without restricting any power conferred on an administrator by this Act, the 23
administrator may, in his or her own name or in the name of the person subject to 24
administration do any of the following: 25
(a) prove, grant, claim and draw a dividend in respect of any debt due to the 26
person in connection with the business concerned, 27
(b) take or defend proceedings relating to any matter concerning that business 28
before any court for the recovery of damages or for any other remedy, whether 29
for a tort, a breach of contract or any other cause of action, which could have 30
been taken or defended by that holder or person, 31
(c) employ an Australian legal practitioner or other agent to give advice or take or 32
defend proceedings with respect to any matter concerning that business or 33
otherwise to act for the administrator in relation to the administration of the 34
affairs and property of the person, 35
(d) for the purpose of providing sufficient money to make any reimbursement, or 36
to satisfy or pay any amount referred to in clause 4, sell, lease or hire any 37
property that the administrator has acquired or of which the administrator has 38
taken possession under this Act, 39
(e) give receipts for money received by the administrator in the course of and in 40
connection with the administration of the affairs and property of the person. 41
(2) A receipt given by the administrator under this clause is an effective discharge of the 42
person paying the money from all responsibility with respect to the application of 43
that money. 44
6 Property may not be subject of debt recovery proceedings 45
Property held by or in the possession of an administrator in that capacity must not be 46
levied on or taken or attached under any judgment. 47
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Schedule 1 Administration of businesses
7 Power of administrator to invest money 1
(1) An administrator may invest any money acquired by the administrator or of which 2
the administrator has taken possession under this Act in any manner in which a 3
trustee is authorised by law to invest funds in respect of which the trustee is trustee. 4
(2) Any income accruing from the investment of any money by an administrator under 5
this clause and any profit resulting from the sale of any such investment is to be 6
added to, and form part of, the property held by the administrator or in the possession 7
of the administrator in his or her capacity as administrator. 8
8 Power of administrator to require information to be given 9
(1) An administrator may require any person who is in possession of information 10
concerning property in respect of which he or she has been appointed administrator 11
to provide the administrator with that information. 12
(2) A person must not, without reasonable excuse, fail to comply with a requirement 13
made of the person under subclause (1). 14
Maximum penalty: 20 penalty units. 15
9 Power of administrator to prohibit withdrawal of money from authorised 16
deposit-taking institution 17
(1) An administrator may, by notice in writing given to an authorised deposit-taking 18
institution, prohibit the withdrawal of money from, or any dealing (including the 19
completion of any dealing commenced before the service of the notice) with, an 20
account of the person subject to administration if the administrator has reasonable 21
grounds for believing that the person holds such an account with the institution. 22
(2) Without preventing any other mode of service, the notice may be given by leaving 23
the notice and the copy of the order accompanying the notice with the manager of, or 24
the person apparently in charge of, the authorised deposit-taking institution at which 25
the account is kept. 26
(3) The authorised deposit-taking institution to which a notice is given must not permit 27
the withdrawal of money from, or any dealing (including the completion of any 28
dealing commenced before the service of the notice) with, any account to which the 29
notice relates except with the authority of the administrator. 30
(4) Any authorised deposit-taking institution that contravenes this clause is liable to the 31
administrator in respect of any loss sustained because of that contravention and the 32
amount of that loss may be recovered by the administrator in proceedings taken 33
against the institution in a court of competent jurisdiction. 34
(5) The administrator may withdraw from an account referred to in subclause (1) all or 35
any of the money held in that account and pay that money into a special account or 36
special accounts in his or her own name and may operate, and otherwise deal with, 37
that account or those accounts according to law. 38
10 Claims against property administered by administrator 39
(1) An administrator may give to any person (including the person subject to 40
administration) a notice to the effect that, if that person has any claim in respect of 41
any property held by or in the possession of the administrator in that capacity, the 42
claim will not be entertained unless full particulars of the property claimed and the 43
grounds of the claim are submitted to the administrator within the period, being not 44
less than 30 days after the notice is given, specified in the notice. 45
(2) The administrator may disregard any claim made by a person to whom a notice is 46
given otherwise than in compliance with the terms of the notice. 47
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Motor Dealers and Repairers Bill 2013 [NSW]
Schedule 1 Administration of businesses
11 Power of Supreme Court to order person to attend before Court for examination 1
(1) On the application of an administrator, the Supreme Court may order any person 2
(including the person subject to administration) to appear before the Court to be 3
examined on oath with respect to any property that is being administered by the 4
administrator or that the administrator is entitled to administer. 5
(2) On an examination before the Supreme Court, the Court may put or allow to be put 6
to the person being examined such questions as it thinks fit. 7
(3) A person examined before the Supreme Court is not excused from answering a 8
question put to the person on the ground that the answer might incriminate the 9
person. If the person claims, before answering the question, that the answer might 10
incriminate the person, neither the question nor the answer is admissible in evidence 11
against the person in criminal proceedings, other than proceedings in relation to the 12
making of a false statement on oath in respect of the answer. 13
(4) A person attending for examination under this clause is entitled to be paid such 14
expenses (if any) as the Supreme Court may allow. 15
(5) The expenses are to be paid by the administrator and are to form part of the expenses 16
of the administration. 17
12 Expenses of administrator 18
(1) All amounts incurred by an administrator in the course of administration, to the 19
extent that they have not otherwise been paid to the administrator or otherwise met 20
under this Act, are to be paid to the administrator by the Secretary out of the 21
Compensation Fund. 22
(2) The amounts so payable include money payable to the administrator as remuneration 23
for his or her services and the costs of bringing or defending or otherwise 24
participating in legal proceedings in the course of and in connection with the 25
administration. 26
(3) Any amounts paid or payable to an administrator out of the Compensation Fund as 27
expenses of the administration under this Act may be recovered in the Supreme Court 28
by the Secretary from the person subject to administration as a debt due from that 29
person to the Secretary. 30
(4) The Secretary and an administrator may enter into an agreement as to the amount to 31
be paid to the administrator as his or her remuneration. 32
(5) In default of any such agreement, the Supreme Court may, on application by the 33
Secretary or the administrator, determine the amount of remuneration to be paid to 34
the administrator. 35
(6) The Supreme Court may, on application by a person subject to administration within 36
the period prescribed by the regulations: 37
(a) re-open any agreement entered into under subclause (4) with respect to the 38
remuneration paid or to be paid to the administrator, and 39
(b) determine the amount of remuneration that, in the opinion of the Court, ought, 40
in fairness to the person, to have been agreed to, and 41
(c) if the amount of remuneration agreed to has been paid to the administrator and 42
that amount exceeds the amount determined by the Court, order the excess to 43
be refunded to the person. 44
(7) If, in the course of proceedings to recover amounts for expenses of administration 45
from the person subject to administration, it appears to the Supreme Court that the 46
amounts sought to be recovered from the person for the expenses of administration 47
are excessive, the Court may: 48
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Motor Dealers and Repairers Bill 2013 [NSW]
Schedule 1 Administration of businesses
(a) by order, direct that an account be taken between the Secretary and the 1
administrator, and 2
(b) by further order or orders, relieve the person from payment of any amount that 3
exceeds the amount the Court determines is fairly payable for those expenses, 4
and 5
(c) direct that any such excess amount that has been paid to or allowed in account 6
by the Secretary to the administrator be refunded by the administrator. 7
13 Claim or charge against administrator may be paid from Fund 8
(1) The Secretary is to reimburse the administrator for any costs, charges, expenses or 9
damages reasonably incurred by the administrator for a good faith claim relating to 10
the carrying out or purported carrying out of the administrator's functions under this 11
Act. 12
(2) Any amounts payable under this clause may be paid from the Compensation Fund. 13
(3) For the purposes of this clause, a claim is a good faith claim if it is made for any act 14
or omission done or omitted in good faith by the administrator, or an employee or 15
agent of the administrator. 16
14 Reports by administrator 17
(1) An administrator must, at such times as the Supreme Court determines, provide a 18
report to the Court and the Secretary on the administration containing the information 19
required by the Court. 20
(2) At the end of the administration the administrator must lodge the following with the 21
Supreme Court: 22
(a) the administrator's final report on the administration, 23
(b) all records in his or her possession or under his or her control relating to that 24
administration. 25
(3) The records are to be kept in the custody of the Supreme Court, subject to any order 26
of the Court directing the destruction or other disposal of those records. 27
(4) This clause is subject to any orders made or directions given by the Supreme Court 28
under this Act. 29
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Motor Dealers and Repairers Bill 2013 [NSW]
Schedule 2 Savings, transitional and other provisions
Schedule 2 Savings, transitional and other provisions 1
Part 1 General 2
1 Regulations 3
(1) The regulations may contain provisions of a savings or transitional nature consequent 4
on the enactment of this Act or any Act that amends this Act. 5
(2) Any such provision may, if the regulations so provide, take effect from the date of 6
assent to the Act concerned or a later date. 7
(3) To the extent to which any such provision takes effect from a date that is earlier than 8
the date of its publication on the NSW legislation website, the provision does not 9
operate so as: 10
(a) to affect, in a manner prejudicial to any person (other than the State or an 11
authority of the State), the rights of that person existing before the date of its 12
publication, or 13
(b) to impose liabilities on any person (other than the State or an authority of the 14
State) in respect of anything done or omitted to be done before the date of its 15
publication. 16
Part 2 Provisions consequent on enactment of this Act 17
2 Definitions 18
In this Part: 19
existing licence holder means a person who was, immediately before the 20
commencement of Part 2 of this Act: 21
(a) the holder of a licence under the Motor Dealers Act 1974, or 22
(b) the holder of a licence or a tradesperson's certificate under the Motor Vehicle 23
Repairs Act 1980. 24
former Acts means the Motor Dealers Act 1974 and the Motor Vehicle Repairs Act 25
1980. 26
1974 Act means the Motor Dealers Act 1974. 27
1980 Act means the Motor Vehicle Repairs Act 1980. 28
3 General savings 29
(1) Any act, matter or thing done or omitted to be done under a provision of a former Act 30
and having any force or effect immediately before the commencement of a provision 31
of this Act that replaces that provision is, on that commencement, taken to have been 32
done or omitted under the provision of this Act. 33
(2) This clause does not apply: 34
(a) to the extent that its application is inconsistent with any other provision of this 35
Schedule or a provision of a regulation made under this Schedule, or 36
(b) to the extent that its application would be inappropriate in a particular case. 37
Note. Among other things, this clause applies to existing undertakings and other 38
actions relating to unjust conduct under the former Acts and also to persons for whom 39
an administrator had been appointed under the 1974 Act. 40
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Motor Dealers and Repairers Bill 2013 [NSW]
Schedule 2 Savings, transitional and other provisions
4 Existing licences under the former Acts 1
(1) An existing licence holder who was, immediately before the commencement of 2
Part 2 of this Act, the holder of: 3
(a) a dealer's licence or a wholesaler's licence under the 1974 Act is taken to be 4
the holder of a motor dealer's licence granted under this Act, or 5
(b) an auto-dismantler's licence under the 1974 Act is taken to be the holder of a 6
motor vehicle recycler's licence granted under this Act, or 7
(c) a motor vehicle parts reconstructor's licence under the 1974 Act is taken to be 8
the holder of a motor vehicle repairer's licence granted under this Act, or 9
(d) a licence in respect of a class of repair work under the 1980 Act is, subject to 10
the regulations, taken to be the holder of a motor vehicle repairer's licence, or 11
(e) a tradesperson's certificate in respect of a class of repair work under the 1980 12
Act is, subject to the regulations, taken to be the holder of a tradesperson's 13
certificate for that class of repair work granted under this Act. 14
(2) An existing licence that is, by operation of this clause, taken to be a licence under this 15
Act is subject to the same conditions that applied to the licence immediately before 16
the commencement of Part 2 of this Act and any such conditions may be varied or 17
revoked as if they were imposed under this Act. 18
(3) Despite subclause (2), an existing licence that was a motor vehicle repairer's licence 19
under the 1980 Act is not subject to any condition limiting the licence to a class or 20
classes of repair work. 21
(4) An existing licence continued in force by this clause ceases to have effect on the day 22
specified for the purposes of this clause by the regulations. 23
(5) The regulations may specify different days for the termination of different existing 24
licences or classes of existing licences. 25
5 References to licences 26
In any document, a reference: 27
(a) to a dealer's licence or a wholesaler's licence under the 1974 Act is taken to 28
be a reference to a motor dealer's licence granted under this Act, or 29
(b) to an auto-dismantler's licence under the 1974 Act is taken to be a reference 30
to a motor vehicle recycler's licence granted under this Act, or 31
(c) to a motor vehicle parts reconstructor's licence under the 1974 Act is taken to 32
be a reference to a motor vehicle repairer's licence granted under this Act, or 33
(d) to a licence in respect of a class of repair work under the 1980 Act is, subject 34
to the regulations, taken to be a reference to a motor vehicle repairer's licence 35
for that class of repair work granted under this Act, or 36
(e) to a tradesperson's certificate in respect of a class of repair work under the 37
1980 Act is, subject to the regulations, taken to be a reference to a 38
tradesperson's certificate for that class of repair work granted under this Act. 39
6 Existing disputes 40
Any dispute being dealt with under a former Act immediately before the 41
commencement of Division 2 of Part 5 of this Act is to continue to be dealt under that 42
former Act as if that Act were in force. 43
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Schedule 2 Savings, transitional and other provisions
7 Existing disciplinary proceedings 1
(1) This clause applies to disciplinary proceedings under a former Act commenced 2
against a person but not finally determined before the commencement of Part 3 of 3
this Act. 4
(2) Disciplinary proceedings to which this clause applies are to continue to be 5
determined as if the former Act continued to be in force. 6
(3) Without limiting any other action that may be taken, disciplinary action taken in such 7
proceedings may be taken in relation to any licence held, or taken to be held, by the 8
person concerned under this Act. 9
(4) Disciplinary proceedings are taken to have been commenced against a person for the 10
purposes of this clause if a show cause notice had been issued to the person under the 11
former Act. 12
8 Compensation Fund 13
(1) The Compensation Fund is a continuation of the following Funds under the former 14
Acts: 15
(a) the Motor Dealers Compensation Fund, 16
(b) the Motor Vehicle Repair Industry Contingency Fund, 17
(c) the Motor Vehicle Repair Industry Education and Research Fund, 18
(d) the Motor Vehicle Repair Industry General Fund. 19
(2) Any amount payable to or from any of those Funds immediately before the 20
commencement of this clause is payable instead to or from the Compensation Fund 21
under this Act. 22
(3) Any payment under a former Act out of the Motor Dealers Compensation Fund or 23
the Motor Vehicle Repair Industry Contingency Fund in settlement in whole or in 24
part of a claim under the former Act is, for the purposes of this Act, taken to be a 25
payment made out of the Compensation Fund under this Act in settlement in whole 26
or in part of the claim concerned as if it were a claim under this Act. 27
9 Act extends to acts and omissions before commencement 28
Unless the context otherwise indicates or requires, a provision of this Act extends to 29
any act or omission occurring before the commencement of the provision. 30
10 Authorised officers 31
(1) A person who held office as an inspector under the 1980 Act immediately before the 32
commencement of section 149 of this Act is taken to be an authorised officer 33
appointed under that section. 34
(2) A person who held office as an authorised officer under the 1974 Act immediately 35
before the commencement of section 149 of this Act is taken to be an authorised 36
officer appointed under that section. 37
11 Unfair contracts affecting motor dealers 38
Part 6 of this Act applies to contracts in force immediately before the commencement 39
of that Part and to any unjust conduct being carried out immediately before that 40
commencement. 41
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Motor Dealers and Repairers Bill 2013 [NSW]
Schedule 2 Savings, transitional and other provisions
12 References to road transport legislation 1
A reference in this Act: 2
(a) to a contravention of section 73 (1) or (3) of the Road Transport Act 2013 3
includes a reference to a contravention of section 22 (2) or (4) of the Road 4
Transport (Vehicle Registration) Act 1997, and 5
(b) to a contravention of section 98 of the Road Transport Act 2013 includes a 6
reference to a contravention of section 16Q of the Road Transport (Vehicle 7
Registration) Act 1997. 8
13 Part subject to regulations 9
This Part is subject to the regulations. 10
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Motor Dealers and Repairers Bill 2013 [NSW]
Schedule 3 Consequential amendment of other Acts
Schedule 3 Consequential amendment of other Acts 1
3.1 Consumer Claims Act 1998 No 162 2
Section 14 Limitation on Tribunal's jurisdiction to make orders 3
Omit "Motor Dealers Act 1974" from the definition of new motor vehicle in section 14 (4). 4
Insert instead "Motor Dealers and Repairers Act 2013". 5
3.2 Crimes (Criminal Organisations Control) Act 2012 No 9 6
Section 27 Prohibition on carrying on of certain activities when interim control order 7
or control order takes effect 8
Omit paragraphs (g) and (h) of the definition of prescribed activity in section 27 (6). 9
Insert instead: 10
(g) carrying on business as a motor dealer, motor vehicle repairer or motor 11
vehicle recycler within the meaning of the Motor Dealers and Repairers 12
Act 2013, 13
3.3 Duties Act 1997 No 123 14
[1] Section 267 Exemptions 15
Omit "a dealer licensed under the Motor Dealers Act 1974" from section 267 (4) (c). 16
Insert instead "a motor dealer licensed under the Motor Dealers and Repairers Act 2013". 17
[2] Section 270 Exemptions for motor dealers 18
Omit "a dealer's licence or a wholesaler's licence issued under the Motor Dealers Act 19
1974" from section 270 (1). 20
Insert instead "a motor dealer's licence issued under the Motor Dealers and Repairers Act 21
2013". 22
3.4 Fair Trading Act 1987 No 68 23
[1] Section 8 Delegation by Director-General 24
Omit section 8 (1) (d) and (e). 25
[2] Section 25F Functions 26
Omit the definition of motor vehicle from section 25F (2). Insert instead: 27
motor vehicle has the same meaning as it has in the Motor Dealers and 28
Repairers Act 2013. 29
3.5 Fines Act 1996 No 99 30
Schedule 1 Statutory provisions under which penalty notices issued 31
Omit: 32
Motor Dealers Act 1974, section 53E 33
Motor Vehicle Repairs Act 1980, section 87A 34
Insert instead: 35
Motor Dealers and Repairers Act 2013, section 158 36
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Motor Dealers and Repairers Bill 2013 [NSW]
Schedule 3 Consequential amendment of other Acts
3.6 Law Enforcement (Powers and Responsibilities) Act 2002 No 103 1
Schedule 2 Search warrants under other Acts 2
Omit: 3
Motor Dealers Act 1974, section 53AA 4
Motor Vehicles Repairs Act 1980, section 75A 5
Insert instead: 6
Motor Dealers and Repairers Act 2013, section 154 7
3.7 Licensing and Registration (Uniform Procedures) Act 2002 No 28 8
Schedule 1 Licences to which Part 2 of Act applies 9
Omit the matter relating to the Motor Dealers Act 1974. Insert instead: 10
Motor Dealers and Repairers Act 2013 11
section 20 (a), motor dealer's licence 12
section 20 (b), motor vehicle repairer's licence 13
section 20 (c), motor vehicle recycler's licence 14
section 20 (d), tradesperson's certificate 15
3.8 Motor Vehicles Taxation Act 1988 No 111 16
Section 3 Definitions 17
Omit "licence under the Motor Dealers Act 1974" from section 3 (2) (d). 18
Insert instead "motor dealer's licence under the Motor Dealers and Repairers Act 2013". 19
3.9 Pawnbrokers and Second-hand Dealers Act 1996 No 13 20
Section 4 Restrictions on operation of this Act 21
Omit "Motor Dealers Act 1974" from section 4 (1). 22
Insert instead "Motor Dealers and Repairers Act 2013". 23
3.10 Road Transport Act 2013 No 18 24
[1] Section 72 Definitions 25
Omit "dealer's licence within the meaning of the Motor Dealers Act 1974" from the 26
definition of licensed motor dealer. 27
Insert instead "motor dealer's licence within the meaning of the Motor Dealers and 28
Repairers Act 2013". 29
[2] Section 82 Definitions 30
Omit the definitions of auto-dismantler and dealer. Insert in alphabetical order: 31
motor dealer has the same meaning as it has in the Motor Dealers and 32
Repairers Act 2013, and includes any other person declared to be a motor 33
dealer by the statutory rules under this Act. 34
motor vehicle recycler has the same meaning as it has in the Motor Dealers 35
and Repairers Act 2013, and includes any other person declared to be a motor 36
vehicle recycler by the statutory rules under this Act. 37
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Motor Dealers and Repairers Bill 2013 [NSW]
Schedule 3 Consequential amendment of other Acts
[3] Section 82, definition of "licensed repairer" 1
Omit "licence under the Motor Vehicle Repairs Act 1980". 2
Insert instead "motor vehicle repairer's licence within the meaning of the Motor Dealers 3
and Repairers Act 2013". 4
[4] Sections 83 (3) and 93 (2) 5
Omit "an auto-dismantler" wherever occurring. Insert instead "a motor vehicle recycler". 6
[5] Sections 87 and 99 (2) (d) 7
Omit "auto-dismantler" and "dealer" wherever occurring. 8
Insert instead "motor vehicle recycler" and "motor dealer". 9
[6] Section 93 Information about written-off and demolished vehicles 10
Omit "An auto-dismantler" from section 93 (3). Insert instead "A motor vehicle recycler". 11
[7] Section 93 (3) 12
Omit "the auto-dismantler" wherever occurring. Insert instead "the motor vehicle recycler". 13
[8] Section 101 Unauthorised disclosure of information 14
Omit section 101 (d). Insert instead: 15
(d) to the Secretary within the meaning of the Motor Dealers and Repairers 16
Act 2013 for the purposes of any disciplinary or legal proceedings 17
arising out of that Act or the regulations under that Act, or 18
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