Motor Dealers Act 1974 (NSW)
An Act to provide for the granting of licences to persons carrying on the business of a motor dealer, an auto-dismantler, a wholesaler, a motor vehicle parts reconstructor, a car market operator or a motor vehicle consultant, or a prescribed business; to require those persons to keep certain records; to impose certain obligations on a motor dealer in relation to motor vehicles offered or displayed for sale or sold by the motor dealer; to provide for the settlement by the Director-General of the Department of Fair Trading of certain disputes arising in connection with the sale of motor vehicles; to establish a Motor Dealers Compensation Fund; for these and other purposes to repeal the Second-hand Motor Dealers Act 1956 (other than sections 18 and 19 thereof); to amend the Motor Traffic Act 1909; and for purposes connected therewith.
This Act may be cited as the Motor Dealers Act 1974.
This section and section 1 shall commence on the date of assent to this Act.
Part 2 shall commence on such day as may be appointed by the Governor in respect thereof and as may be notified by proclamation published in the Gazette.
Section 59 shall commence on the day that is three months after the day on which Part 2 commences.
Except as provided in subsections (1), (2) and (3), the several provisions of this Act shall commence on such day or days as may be appointed by the Governor in respect thereof and as may be notified by proclamation published in the Gazette.
(Repealed)
In this Act, except in so far as the context or subject-matter otherwise indicates or requires:
(a) any member of the NSW Police Force,
(b) an investigator appointed under section 18 of the Fair Trading Act 1987,
(c) the Director-General,
(d) any person authorised in writing by the Director-General, including a person authorised under section 6 (1), or
(e) any person authorised in writing by the Chief Executive of Roads and Maritime Services.
(a) demolishing or dismantling motor vehicles or parts or accessories of motor vehicles, or
(b) buying motor vehicles and substantially demolished or substantially dismantled motor vehicles and selling substantially demolished or substantially dismantled motor vehicles (whether or not the person also sells parts or accessories of motor vehicles), or
(c) buying and selling prescribed kinds of parts or accessories of motor vehicles.
(a) in relation to a motor vehicle offered or displayed for sale, means the price at which the vendor is willing to sell the vehicle for cash complete with all accessories then fitted to or supplied with the vehicle, and
(b) in relation to the sale of a motor vehicle:
(i) means the price at which the vehicle is sold,
(ii) where any part of the consideration that passed, or is to pass, from the purchaser is represented by another vehicle, or other thing, means the price at which the vehicle is sold and the value of the other vehicle or thing as ascribed to it for the purposes of the sale by the parties thereto or, if no agreed value is so ascribed, the market value of the other vehicle or thing at the time of the sale, or
(iii) where all of the consideration that passed, or is to pass, from the purchaser is represented by another vehicle, or other thing, means the value of the other vehicle or thing as ascribed to it for the purposes of the sale by the parties thereto or, if no agreed value is so ascribed, the market value of the other vehicle or thing at the time of the sale, less any amount paid, or to be paid, by the vendor to the purchaser in connection with the sale.
(a) the carriage of goods,
(b) the carriage of 10 or more adult persons, or
(c) industrial or agricultural use,
and includes a motor vehicle prescribed to be a commercial vehicle for the purposes of this definition and a motor vehicle of a class or description of motor vehicles prescribed to be commercial vehicles for the purposes of this definition, but does not include:
(d) a motor vehicle of the kind known as a utility, a station waggon or a panel van that is of the same make as a factory-produced motor car and in which such part of the body form as is forward of the windscreen and the greater part of the mechanical equipment are the same, or substantially the same, as in that motor car,
(e) a motor vehicle that is adapted for camping use, or
(f) a motor vehicle prescribed not to be a commercial vehicle for the purposes of this definition or a motor vehicle of a class or description of motor vehicles prescribed not to be commercial vehicles for the purposes of this definition.
(a) except as provided by paragraph (c), in the case of a motor vehicle (other than a motor cycle)—the holder of a licence, or a tradesperson’s certificate, granted under the Motor Vehicle Repairs Act 1980 in respect of a class of repair work that comprises or includes the work of a motor mechanic,
(b) except as provided by paragraph (c), in the case of a motor cycle:
(i) a person referred to in paragraph (a), or
(ii) the holder of a licence, or a tradesperson’s certificate, granted under the Motor Vehicle Repairs Act 1980 in respect of a class of repair work that comprises or includes the work of a motor cycle mechanic, or
(c) in the case of a prescribed defect or a defect of a prescribed class or description—a prescribed person or a person of a prescribed class or description,
which specifies with reasonable particularity:
(d) each defect (if any) actually found to be present in the vehicle at the time of inspection by the person giving the notice, and
(e) in relation to each such defect, the estimate of the person giving the notice of the fair cost of repairing or making good the defect.
(a) that has not been sold to a person other than a dealer or wholesaler,
(b) that has been registered only in the name of any one or more of the following persons:
(i) any dealer or wholesaler or any person on behalf of any dealer or wholesaler,
(ii) any person in anticipation of the sale of the vehicle to that person, and
(c) that has not been used for any purpose, other than:
(i) a purpose in connection with its manufacture or sale, or
(ii) the purpose of demonstrating the motor vehicle to a potential buyer of that motor vehicle or a motor vehicle of the class to which that motor vehicle belongs.
(a) for the purpose of letting or hiring motor vehicles under hire-purchase agreements,
(b) for the purpose of selling motor vehicles on instalment terms,
(c) for the purpose of taking or enforcing securities over motor vehicles,
(d) for any purpose that may be prescribed, or
(e) for the purpose of disposing of motor vehicles acquired by the person in connection with any of the purposes referred to in, or prescribed in relation to, this definition,
but does not include such person or class of person as may be prescribed for the purposes of this definition.
(a) where no report is prescribed for the purposes of paragraph (b), an inspection report issued in accordance with the statutory rules under the Road Transport Act 2013, or
(b) a report prescribed for the purposes of this paragraph.
(Repealed)
For the purposes of this Act:
(a) where a dealer sells a motor vehicle to a financier in the expectation that the financier will sell that motor vehicle to a particular third person and the financier does so, the dealer shall be treated as having sold the motor vehicle to that third person, and
(b) where a motor vehicle is made the subject of a hire-purchase agreement, it shall be treated as being sold to the hirer, and the sale shall be treated as made when the hire-purchase agreement is entered into.
A person who carries on the business of manufacturing or assembling motor vehicles is not a dealer or a wholesaler and does not carry on the business of a dealer or a wholesaler, by reason only of selling any such vehicle to a trade owner.
For the purposes of this Act a motor vehicle shall be treated as having been sold notwithstanding that all or part of the consideration that passed from the purchaser in respect of the sale is represented by another vehicle or other thing.
In this Act, a reference to a motor vehicle is a reference to the vehicle complete with all accessories fitted to the vehicle.
For the purposes of this Act a motor vehicle is not a second-hand motor vehicle at the time it is sold by a dealer by reason only that it is registered for the first time in the name of the purchaser prior to the completion of the sale.
In this Act, a reference to a register, in relation to the holder of a licence, is a reference to a register required by this Act to be kept by the holder at a place of business in respect of which the licence is granted.
Notes included in this Act do not form part of this Act.
An application under this Act shall be made in or to the effect of a form approved by the Director-General.
The Director-General may approve different forms for the purpose of making different applications.
The Minister may exempt any specified person or persons from any requirement under this Act relating to compliance with a form of register, notice or other document prescribed for the purposes of this Act.
An exemption may be given unconditionally or subject to conditions relating to the use of the form.
If an exemption is given subject to conditions, the exemption does not have effect while any of the conditions is not being complied with.
(Repealed)
The Governor may:
(a) prescribe any class of business, carried on in relation to used or reconstructed motor vehicles, or such used or reconstructed parts of motor vehicles or accessories as may be prescribed, and
(b) prescribe a licence in relation to any such class of business and a fee to be paid therefor.
The Governor may, by order published in the Gazette, declare that the provisions of this Act, or such of those provisions as are specified in the order:
(a) do not have effect in relation to a specified person or to a specified class of persons,
(b) have effect in relation to a specified person or to a specified class of persons to such extent as is specified,
(c) do not have effect in relation to a specified motor vehicle or to a specified class of motor vehicles,
(d) have effect in relation to a specified motor vehicle or to a specified class of motor vehicles to such extent as is specified,
(e) do not have effect in relation to a specified activity or matter or to a specified class of activities or matters,
(f) have effect in relation to a specified activity or matter or to a specified class of activities or matters to such extent as is specified,
(g) do not have effect in relation to a specified activity or to a specified class of activities engaged in by a specified person or specified class of persons or in relation to specified associated matters, or
(h) have effect in relation to a specified activity or to a specified class of activities engaged in by a specified person or specified class of persons, or in relation to specified associated matters, to such extent as is specified.
For orders under this subsection, see the Historical notes at the end of this Act.
An order made under subsection (1):
(a) may specify the period during which the order shall remain in force, or
(b) may provide that its operation is subject to such terms and conditions as are specified in the order.
The Governor may, by order published in the Gazette, revoke or vary an order made under this section.
An order in force under this section, including an order that is varied under this section, has effect according to its tenor.
A person to whom an order under this section applies, including an order that is varied under this section, shall comply with the terms and conditions (if any) to which the operation of the order is subject.
A person (other than an exempted person) shall not:
(a) carry on, or advertise that the person carries on or is willing to carry on, the business of a dealer unless the person is the holder of a dealer’s licence,
(b) carry on, or advertise that the person carries on or is willing to carry on, the business of a dealer otherwise than in accordance with a dealer’s licence held by the person, or
(c) carry on the business of a dealer at any place of business unless the person is the holder of a dealer’s licence granted in respect of that place of business.
A person (other than an exempted person) shall not:
(a) carry on, or advertise that the person carries on or is willing to carry on, the business of an auto-dismantler unless the person is the holder of a dealer’s licence or an auto-dismantler’s licence,
(b) carry on, or advertise that the person carries on or is willing to carry on, the business of an auto-dismantler otherwise than in accordance with a dealer’s licence or an auto-dismantler’s licence held by the person, or
(c) carry on the business of an auto-dismantler at any place of business unless the person is the holder of a dealer’s licence or an auto-dismantler’s licence granted in respect of that place of business.
A person (other than an exempted person) shall not:
(a) carry on, or advertise that the person carries on or is willing to carry on, the business of a wholesaler unless the person is the holder of a dealer’s licence or a wholesaler’s licence,
(b) carry on, or advertise that the person carries on or is willing to carry on, the business of a wholesaler otherwise than in accordance with a dealer’s licence or a wholesaler’s licence held by the person, or
(c) carry on the business of a wholesaler at any place of business unless the person is the holder of a dealer’s licence or a wholesaler’s licence granted in respect of that place of business.
A person (other than an exempted person) shall not:
(a) carry on, or advertise that the person carries on or is willing to carry on, the business of a motor vehicle parts reconstructor unless the person is the holder of a dealer’s licence or a motor vehicle parts reconstructor’s licence,
(b) carry on, or advertise that the person carries on or is willing to carry on, the business of a motor vehicle parts reconstructor otherwise than in accordance with a dealer’s licence or a motor vehicle parts reconstructor’s licence held by the person, or
(c) carry on the business of a motor vehicle parts reconstructor at any place of business unless the person is the holder of a dealer’s licence or a motor vehicle parts reconstructor’s licence granted in respect of that place of business.
A person (other than an exempted person) shall not:
(a) carry on, or advertise that the person carries on or is willing to carry on, the business of a car market operator unless the person is the holder of a car market operator’s licence,
(b) carry on, or advertise that the person carries on or is willing to carry on, the business of a car market operator otherwise than in accordance with a car market operator’s licence held by the person, or
(c) carry on the business of a car market operator at any place of business unless the person is the holder of a car market operator’s licence granted in respect of that place of business.
A person (other than an exempted person) shall not:
(a) carry on, or advertise that the person carries on or is willing to carry on, the business of a motor vehicle consultant unless the person is the holder of a dealer’s licence or a motor vehicle consultant’s licence,
(b) carry on, or advertise that the person carries on or is willing to carry on, the business of a motor vehicle consultant otherwise than in accordance with a dealer’s licence or a motor vehicle consultant’s licence held by the person, or
(c) carry on the business of a motor vehicle consultant at any place of business unless the person is the holder of a dealer’s licence or a motor vehicle consultant’s licence granted in respect of that place of business.
A person (other than an exempted person) shall not:
(a) carry on, or advertise that the person carries on or is willing to carry on, a prescribed business unless the person is the holder of a dealer’s licence or the prescribed licence in relation to that business,
(b) carry on, or advertise that the person carries on or is willing to carry on, a prescribed business otherwise than in accordance with a dealer’s licence or the prescribed licence in relation to that business held by the person, or
(c) carry on a prescribed business at any place of business unless the person is the holder of a dealer’s licence or the prescribed licence in relation to that business granted in respect of that place of business.
Notwithstanding subsection (1), the holder of an auto-dismantler’s licence, a wholesaler’s licence or a motor vehicle parts reconstructor’s licence who buys, sells or exchanges motor vehicles in the course of carrying on business as an auto-dismantler, wholesaler or motor vehicle parts reconstructor, as the case may be, is not required to be the holder of a dealer’s licence.
A person carries on the business of a dealer, auto-dismantler, wholesaler, motor vehicle parts reconstructor, car market operator or motor vehicle consultant, or a prescribed business, if the person does so alone, as a member of a partnership or by a servant or agent.
In this section, a reference to the holder of a licence includes a reference to any person with whom, pursuant to section 19 (2), the holder of the licence carries on, in partnership, the business to which the licence relates.
A person who is convicted of an offence under this section is liable to a penalty not exceeding 1,000 penalty units.
A person who is convicted of a second or subsequent offence under subsection (1) (a), (2) (a), (3) (a), (4) (a), (5) (a), (6) (a) or (7) (a) is liable to a penalty not exceeding 500 penalty units or imprisonment for a term not exceeding 12 months, or both.
Despite subsection (1) (c), the holder of a dealer’s licence who carries on the business of a dealer at a place other than a place in respect of which the licence is granted is not guilty of an offence against this Act if the business is carried on at that place in accordance with section 23A (2).
The Director-General may grant the following licences for the purposes of this Act:
(a) dealers’ licences,
(b) auto-dismantlers’ licences,
(c) wholesalers’ licences,
(d) motor vehicle parts reconstructors’ licences,
(e) car market operators’ licences,
(f) motor vehicle consultants’ licences,
(g) prescribed dealers’ licences.
Part 2 of the Licensing and Registration (Uniform Procedures) Act 2002 (
For the purpose of applying Part 2 of the applied Act to a licence:
(a) the licence may be amended under that Act, and
(b) an application for restoration of a licence under section 10 of that Act may be made only in respect of a licence that is cancelled under section 20 (7) of this Act, and any such application may not be made more than 3 months after the date on which the licence is cancelled.
Subject to this section, the regulations may make provision for or with respect to such matters concerning a licence as are relevant to the operation of Part 2 of the applied Act.
The Director-General may make such inquiries as the Director-General considers necessary in relation to an application for a licence.
The Commissioner of Police shall, if the Director-General of the Department of Fair Trading so requests, investigate an application for a licence and, as soon as practicable after completing the investigation, make a report to the Director-General of the Department of Fair Trading on the investigation.
Subject to subsections (2), (4), (5), (6) and (8), the Director-General shall grant an application for a licence.
An application for a licence made by a natural person shall be refused if it appears to the Director-General that:
(a) the applicant has not attained the age of 18 years,
(b) the applicant is disqualified from holding a licence,
(c) the applicant is an undischarged bankrupt,
(d) the applicant does not have, or is not likely to continue to have, sufficient financial resources to enable the person to carry on business pursuant to the authority that would be conferred by the licence if it were granted,
(e) the applicant is not a person likely to carry on such a business honestly and fairly,
(f) the applicant does not have the prescribed qualifications or does not have sufficient knowledge or expertise to carry on such a business,
(f1) the applicant is a controlled member of a declared organisation within the meaning of the Crimes (Criminal Organisations Control) Act 2012,
Note— Controlled members are prohibited from applying for licences—see section 27 of the Crimes (Criminal Organisations Control) Act 2012.
(g) the applicant is in any other way not a fit and proper person to be the holder of a licence, or
(h) any person with whom the applicant intends to carry on, in partnership, business pursuant to the authority that would be conferred by the licence if it were granted is a person in respect of whom the Director-General would be required to refuse an application for the licence if that person were the applicant, or
(i) the applicant has (as an adult), within the preceding 10 years, been found guilty of an offence involving, or relating to:
(i) stealing a motor vehicle (within the meaning of Division 5A of Part 4 of the Crimes Act 1900), or
(ii) receiving, or unlawful possession of, a motor vehicle (within the meaning of Division 5A of Part 4 of the Crimes Act 1900) or a motor vehicle part.
Without affecting the generality of subsection (2) (g), the Director-General may, in determining whether an applicant is not a fit and proper person to be the holder of a licence, have regard (if such be the case) to the fact that the applicant:
(a) has, during the period of 10 years that last preceded the making of the application, been convicted of, or served any part of a term of imprisonment for, an offence in New South Wales or elsewhere involving fraud or dishonesty,
(b) was, at the time of the making of the application, bound in relation to such an offence by a recognizance,
(c) had, at the time of the making of the application, a charge pending against the applicant in relation to such an offence, or
(d) has, at any time, been convicted of an offence against this Act or the regulations or any other enactment administered by the Minister.
Without affecting the generality of subsection (2) (g), a person is not a fit and proper person to be the holder of a licence if the Director-General has reasonable grounds to believe from information provided by the Commissioner of Police in relation to the person that:
(a) the person is a member of, or regularly associates with one or more members of, a declared organisation within the meaning of the Crimes (Criminal Organisations Control) Act 2012, and
(b) the nature and circumstances of the person’s relationship with the organisation or its members are such that it could reasonably be inferred that improper conduct that would further the criminal activities of the declared organisation is likely to occur if the person is granted a licence.
An application for a licence made by a body corporate shall be refused if it appears to the Director-General that:
(a) a person concerned in the management of the body corporate has not attained the age of 18 years,
(b) the body corporate is disqualified from holding a licence,
(c) the body corporate does not have, or is not likely to continue to have, sufficient financial resources to enable it to carry on business pursuant to the authority that would be conferred by the licence if it were granted,
(d) the body corporate is not likely to carry on such a business honestly and fairly,
(e) the officers of the body corporate do not have the prescribed qualifications or do not have sufficient knowledge or expertise to carry on such a business,
(e1) (Repealed)
(f) the reputation of the body corporate is such that it would not be a fit and proper person to be the holder of a licence,
(g) an officer of the body corporate is disqualified from being an officer of a body corporate that is the holder of a licence,
(h) a director of, or a person concerned in the management of, the body corporate is not of good reputation or character or in any other way would not be a fit and proper person to be the holder of a licence if the director or person were to apply for the licence personally,
(i) any person other than an officer of the body corporate who, in the opinion of the Director-General, appears to have control, or substantial control, of the body corporate is not of good reputation and character or is not likely to exercise that control honestly and fairly, or
(j) any person with whom the applicant intends to carry on, in partnership, business pursuant to the authority that would be conferred by the licence if it were granted is a person in respect of whom the Director-General would be required to refuse an application for the licence if that person were the applicant, or
(k) a director of, or person concerned in the management of, the body corporate has (as an adult), within the preceding 10 years, been found guilty of an offence involving, or relating to:
(i) stealing a motor vehicle (within the meaning of Division 5A of Part 4 of the Crimes Act 1900), or
(ii) receiving, or unlawful possession of, a motor vehicle (within the meaning of Division 5A of Part 4 of the Crimes Act 1900) or a motor vehicle part.
Without affecting the generality of subsection (4) (f), (h), (i) or (j), the Director-General may, in determining any matter referred to in those paragraphs, have regard (if such be the case) to the fact that the body corporate or a person referred to in any of those paragraphs has, at any time, been convicted of an offence against this Act or the regulations or any other enactment administered by the Minister.
An application for a licence may be refused if:
(a) some other licence is in force in respect of a place of business, or any part of a place, to which the application relates, or
(b) the carrying on of the business at that place or part of a place is, for any reason, unlawful.
Where an application for a licence is refused, the Director-General shall forthwith, by notice in writing served on the applicant, inform the applicant of the refusal and of the ground on which the refusal is based and, where the application was accompanied by the prescribed fee for the licence, the Director-General shall, as soon as practicable, refund to the applicant that fee.
The Director-General is not, under subsection (7), Part 2 of the applied Act (within the meaning of section 10) or any other Act or law, required to give any reasons for refusing an application for a licence because of subsection (3A) to the extent that the giving of those reasons would disclose any criminal intelligence.
An application for a licence shall not be granted until the applicant has paid to the Director-General the prescribed fee (which may include an initial contribution to the Fund) for the licence.
Where an application for a licence is granted:
(a) the applicant shall be deemed to be the holder of the licence granted, and
(b) the Director-General shall forthwith, by notice in writing, inform the applicant of the granting of the application.
Notwithstanding anything in this section, the Director-General may refrain from granting an application for a licence unless:
(a) any natural person to whom the application relates, and
(b) the directors and officers of any body corporate to which the application relates,
or such of them as the Director-General specifies or refers to, has or have appeared personally before the Director-General and satisfied the Director-General as to such relevant matters referred to in this section as the Director-General thinks appropriate.
Where the Director-General would, but for the inability of the applicant for a licence to satisfy the Director-General as to the address of the place or places of business at which, or the name or names under which, the applicant intends to carry on business, grant the application for the licence, the Director-General may defer consideration of the application and grant the applicant an approval for the licence in such form as may be determined by the Director-General.
An approval for a licence does not authorise the person to whom the approval is granted to carry on business pursuant to the authority that would be conferred by the licence applied for by the applicant if that licence were granted.
An approval for a licence shall remain in force for such period as may be prescribed.
Where, during the period prescribed for the purposes of subsection (3), the applicant satisfies the Director-General:
(a) as to the matter referred to in subsection (1), and
(b) that no change material to the applicant’s application for the licence has occurred since the application was last considered by the Director-General,
the Director-General shall, subject to section 12 (8), grant the application.
The Director-General may:
(a) upon the granting of an application for a licence and at any other time, impose conditions or restrictions subject to which the licence is to be held, and
(b) upon application or of the Director-General’s own motion, at any time vary or revoke any of those conditions or restrictions.
A licence is subject to:
(a) any prescribed conditions and restrictions, and
(b) any conditions and restrictions in force under subsection (1).
The Director-General shall not impose conditions or restrictions to which a licence is to be subject, or vary conditions or restrictions to which a licence is subject, unless the Director-General has first afforded the applicant for, or, as the case may be, the holder of, the licence an opportunity to make submissions, orally or in writing, and adduce evidence with respect to the conditions or restrictions proposed to be imposed or varied.
Subject to the Business Names Registration Act 2011 of the Commonwealth, a licence may authorise the holder to carry on business under a name or names in addition to or in substitution for the name of the holder.
A person shall not carry on, or advertise that the person carries on or is willing to carry on, the business to which a licence relates under a name or names other than the name of the holder of the licence or the name or names under which the holder of the licence is authorised so to do in accordance with subsection (1).
(Repealed)
(Repealed)
(Repealed)
The Director-General may, on the application of a holder of a licence:
(a) vary or omit a place at which the business to which the licence relates is authorised to be carried on, or
(b) add a place as a place at which any such business is authorised to be carried on.
An application under subsection (3) may be refused if:
(a) some other licence is in force in respect of a place of business, or any part of a place, to which the application relates, or
(b) the carrying on of the business at that place or part of a place is, for any reason, unlawful.
The holder of a licence shall, not later than 14 days after ceasing to carry on business at a place of business authorised by the licence, give to the Director-General notice in writing that the holder has ceased to carry on business at that place.
(Repealed)
For the purposes of this Act, the Director-General shall keep a register of the holders of licences.
Subject to this Act and the regulations, the register shall be kept in such form and manner as the Director-General thinks fit.
The Director-General may, on the application of a person, issue to the person a certificate stating whether a person specified in the certificate is or was, on a date or during a period specified in the certificate, the holder of a licence.
The Director-General may charge such fee, if any, as may be prescribed for the issue of a certificate.
Except during any period while it is suspended, a licence continues in force until, pursuant to the provisions of this Act, it is surrendered or cancelled or ceases to have effect.
A licence authorises the holder (together with any person whose name is specified in an endorsement on the licence) to carry on business under the name or names specified in the licence and at the place or places (including any place varied or added under section 17) of business so specified, subject to and in accordance with this Act and the conditions and restrictions to which the licence is subject.
The holder of a licence shall not transfer, attempt to transfer or lend the licence to another person or allow the use of the licence by another person and a person shall not attempt to obtain the transfer of or attempt to borrow or borrow or use a licence of which the person is not the holder.
For the purposes of this Act, sections 20 and 20A excepted, a person whose licence is suspended under this Act shall, while the suspension continues, be deemed to be a person who does not hold a licence.
For the purposes of sections 12 and 17, a licence which is suspended shall be deemed to be in force in respect of a place of business to which the licence relates.
The holder of a licence shall, before the expiration of one month after each anniversary of the date on which the licence was granted, pay to the Director-General in respect of the year commencing on that anniversary the prescribed fee for the licence.
A person who is or was the holder of a licence during a year, or part of a year, commencing on the date, or on an anniversary of the date, on which the licence was granted to the person, shall lodge with the Director-General a statement in respect of that year or part that is in a form approved by the Director-General and is signed by or on behalf of the holder.
A statement referred to in subsection (2) shall be accompanied by such documents as may be prescribed.
The holder of a licence or other person required under subsection (2) to lodge a statement shall lodge the statement (together with any documents required to accompany the statement pursuant to subsection (3)) within one month after the end of the year in respect of which, or part of which, the statement is lodged.
The Director-General may, on the application of a person required to comply with subsection (1), or subsections (2) and (4), extend or further extend the time for compliance with the applicable subsection or subsections.
Where the holder of a licence has failed to pay a fee, or lodge a statement, or pay a fee and lodge a statement, in accordance with this section, the Director-General shall give notice in writing to the holder that, unless the fee is paid or the statement lodged, or the fee is paid and the statement lodged, in accordance with this section, together with any prescribed late fee that the notice requires to be paid, before a day specified in the notice, being a day that is not earlier than 14 days after the giving of the notice, the licence will be cancelled.
The Director-General shall cancel the licence held by a person who fails to pay a fee or lodge a statement, or pay a fee and lodge a statement, as referred to in a notice given under subsection (6).
(Repealed)
Subject to subsection (5), a person (not being the holder of a licence) to whom subsections (2) and (4) apply shall comply with those subsections.
If, while a licence is in force, there occurs:
(a) between the time the application for the licence was granted and the time the first statement is lodged under subsection (2)—a change in the particulars specified in, or in connection with, the application, or
(b) between the lodging of successive annual statements under subsection (2)—a change in the particulars specified in the earlier of those statements,
the holder of the licence shall, within 14 days after the occurrence of the change, give to the Director-General notice in writing specifying particulars of the change.
A person shall not, in or in relation to a statement required to be lodged under subsection (2) or a notice required to be given under subsection (9), make a statement that is false or misleading by reason of the inclusion therein of any false or misleading matter or the omission therefrom of any material matter.
It is a defence to a prosecution of a person for an offence under subsection (10) if the person proves that, when the statement was lodged or the notice given, the person:
(a) believed on reasonable grounds that the false matter was true,
(b) believed on reasonable grounds that the misleading matter was not misleading,
(c) in the case of an omission—believed on reasonable grounds that no material matter had been omitted, or
(d) in the case of an omission—did not know that the omitted matter was material.
The holder of a licence may (subject to section 20D (2A)), by notice in writing given to the Director-General and accompanied by the licence, surrender the licence.
Despite subsection (1), a licensee whose licence has been lost or destroyed may surrender the licence by giving to the Director-General a notice in writing and specifying in the notice that the licence has been lost or destroyed, as the case may be.
A dealer’s licence ceases to have effect if the holder of the licence is granted a car market operator’s licence.
A car market operator’s licence ceases to have effect if the holder of the licence is granted a dealer’s licence.
When a dealer’s licence or a car market operator’s licence ceases to have effect under subsection (1) or (2), as the case may be, the person who was the holder of the licence shall forthwith deliver it to the Director-General.
(Repealed)
Where, at any time, the Director-General is of the opinion that there are reasonable grounds for believing that:
(a) a licence may have been improperly obtained or, at the time a licence was granted, there may have been grounds for refusing to grant it,
(b) the holder of a licence has been convicted of an offence against this Act or the regulations or any other enactment administered by the Minister,
(b1) the holder of a licence has been convicted of an offence under section 73 (1) or (3) of the Road Transport Act 2013,
(c) the holder of a licence may have failed to comply with this Act or the regulations, a condition or restriction to which the licence is subject or an order of the Tribunal applicable to the holder,
(d) the holder of a licence has, within the period of 10 years that last preceded the grant of the licence, been found guilty of an offence involving fraud or dishonesty punishable on conviction by imprisonment for 3 months or more,
(d1) the holder of a licence has (as an adult), within the preceding 10 years or the period of 10 years that last preceded the grant of the licence, been found guilty of:
(i) an offence involving, or relating to, stealing a motor vehicle (within the meaning of Division 5A of Part 4 of the Crimes Act 1900), or
(ii) receiving, or being in unlawful possession of, a motor vehicle (within the meaning of Division 5A of Part 4 of the Crimes Act 1900) or a motor vehicle part,
(d2) in the light of evidence acceptable to the Director-General, the holder of the licence is probably receiving or dealing in stolen goods,
(e) the business to which a licence relates is being carried on in a dishonest or unfair manner,
(f) if a person were not the holder of a licence, the Director-General would be required by section 12 (2), (3A) or (4) to refuse an application by the person for a licence,
(g) in the case of a holder of a dealer’s licence (being a body corporate), the holder:
(i) is in the course of being wound up,
(ii) is under official management,
(iii) is a body corporate in respect of which a receiver or manager has been appointed, or
(iv) has entered into a compromise or scheme of arrangement with its creditors,
or may, for any other reason, be unable, or is likely to become unable, to meet the holder’s liabilities,
(h) the holder of the licence has, for a period of 1 month or more, ceased to carry on the business to which the licence relates at a place of business to which the licence relates,
(i) the holder of the licence is contravening another Act or an instrument made under another Act by carrying on the business to which the licence relates at a place of business to which the licence relates, or
(j) the holder of a licence is, for any other reason, not a fit and proper person to continue to hold a licence,
the Director-General may, by notice in writing served on the holder of the licence, call upon the holder to show cause, within such period, being not less than 14 days, as is specified in the notice, why the holder should not, for the reasons specified in the notice, be dealt with in accordance with this Division.
By way of example of the operation of subsection (1) (d2), the Director-General may consider that the holder of a licence in whose custody stolen goods are found is probably receiving or dealing in stolen goods.
The holder of a licence on whom a notice to show cause has been served, a person with whom, pursuant to section 19 (2), the holder of the licence carries on, in partnership, the business to which the licence relates or, where the holder is a body corporate, a director or officer of the body corporate may, within the period specified in the notice, make submissions, orally or in writing, and adduce evidence with respect to the matters to which the notice relates.
The holder of a licence on whom notice to show cause has been served under this section may not surrender the licence unless the Director-General has made a determination under section 20E in relation to each matter to which the notice relates.
The Director-General may conduct such inquiry or make such investigation in relation to the matters to which the notice relates and the submissions made, if any, and the evidence adduced, if any, by or on behalf of the holder of the licence in relation to those matters as the Director-General thinks fit.
Subsection (1) does not require the Director-General to disclose any criminal intelligence in a notice served on the holder of a licence because of the matter referred to in section 12 (3A).
If, after compliance with section 20D, the Director-General is satisfied that any matter referred to in section 20D (1) has been established, the Director-General may do any one or more of the following:
(a) reprimand the holder of the licence,
(b) require the holder of the licence to comply within a specified time with a requirement specified by the Director-General,
(c) suspend the licence for a period not exceeding 12 months,
(d) disqualify the holder of the licence or any person concerned in the direction, management or conduct of the business to which the licence relates from holding a licence or from being concerned in the direction, management or conduct of a business for the carrying on of which a licence is required, either permanently or for such period as the Director-General thinks fit,
(e) impose a condition or restriction to which the licence shall be subject,
(f) cancel the licence.
Without limiting the powers conferred by subsection (1), among the requirements that the Director-General may specify under subsection (1) (b) is a requirement that the holder of the licence concerned:
(a) make an additional contribution to the Fund of such amount as the Director-General specifies, or
(b) indemnify the Fund to such extent as the Director-General specifies in the event of a particular contingency arising concerning the activities of the holder of the licence.
Despite subsection (1), the Director-General must cancel the licence concerned if satisfied that:
(a) a matter referred to in section 20D (1) (d1) has been established, or
(b) in the case of a licence holder that is a body corporate, if the body corporate were not the holder of a licence, the Director-General would be required by section 12 (4) (k) to refuse an application by the body corporate for a licence.
Despite subsection (1), the Director-General must cancel the licence concerned if satisfied that the matter referred to in section 12 (3A) has been established.
Where, under subsection (1), the Director-General requires the holder of a licence to comply with a requirement specified by the Director-General, the holder of the licence shall comply with the requirement within the time specified by the Director-General under that subsection.
Where the Director-General disqualifies the holder of a licence under subsection (1) (d), the Director-General shall cancel the licence.
Where the Director-General suspends or cancels a licence under this section, the suspension or cancellation shall take effect on and from such day as is determined by the Director-General and notified, by notice in writing, to the holder of the licence.
Where the Director-General:
(a) suspends a licence—the holder of the licence, or
(b) cancels a licence—the former holder of the licence,
shall return the licence to the Director-General within a period specified by the Director-General when suspending or cancelling the licence.
A person disqualified under subsection (1) (d) shall not, while disqualified:
(a) hold a licence, or
(b) be concerned in the direction, management or conduct of a business for which this Act requires a licence to be held.
If the Director-General:
(a) refuses to grant an application for, or suspends or (under any provision of this Act) cancels, a licence, or
(b) imposes a condition or restriction under section 14, or
(c) imposes a disqualification referred to in section 20E (1) (d),
the applicant for the licence, the person who held the licence or the person disqualified (as the case may be) may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decisions of the Director-General.
On an application for an administrative review of a decision of the Director-General to refuse to grant a licence to a person because of a fact referred to in section 12 (3) or (5), the Tribunal may determine that the fact should be ignored on one or more of the following grounds:
(a) the triviality of the acts or omissions giving rise to the offence concerned,
(b) the time that has passed since the offence concerned was committed,
(c) the subsequent good behaviour of the offender,
(d) any other ground prescribed by the regulations.
In determining an application for an administrative review of any decision to refuse to grant a licence because of section 12 (3A) or to cancel a licence because of section 20E (1C), the Tribunal (and any Appeal Panel of the Tribunal in determining any internal appeal against such a review under the Civil and Administrative Tribunal Act 2013):
(a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose any criminal intelligence, and
(b) in order to prevent the disclosure of any criminal intelligence, is to receive evidence and hear argument in the absence of the public, the applicant for the administrative review and the applicant’s representative and any other interested party,
unless the Commissioner of Police approves otherwise.
Where the holder of a licence dies, a person who is, or who is named as, or who intends to apply to become, a legal personal representative of the deceased holder may, within 28 days after the death or such longer period as the Director-General allows, apply to the Director-General for authority to carry on, until the expiration of the period of 6 months that next succeeds the death, the business of the deceased holder to which the licence relates.
The Director-General may grant or refuse an application and, where the Director-General grants the application, may impose such conditions as the Director-General thinks fit, being conditions subject to which the business to which the application relates may be carried on.
An applicant whose application is granted under this section shall, subject to this Act, the regulations and any conditions imposed under subsection (2), be deemed, until not later than the expiration of the period of 6 months that next succeeds the death of the deceased holder, to be the holder of the licence of the deceased holder.
Where the holder of a licence is required to carry on the business to which the licence relates subject to conditions or restrictions imposed under section 14 or 20G (2), the holder of the licence shall, upon being required by the Director-General so to do within a specified time, produce the licence to the Director-General within that time for endorsement of the condition or restriction.
For the purposes of this Division, conduct of a dealer (whether or not the dealer is the holder of a licence or is an exempted person) is unjust if it is conduct:
(a) that is dishonest or unfair,
(b) that consists of anything done, or omitted to be done, in breach of contract, whether or not proceedings in respect of the breach have been brought,
(c) that consists of the contravention of this Act or the regulations or any other enactment administered by the Minister, or
(d) that consists of the failure to comply with a condition or restriction to which the licence is subject or an order of the Tribunal applicable to the holder.
In this Division, a reference to a dealer includes a reference to:
(a) an auto-dismantler,
(b) a wholesaler,
(c) a motor vehicle parts reconstructor,
(d) a car market operator,
(e) a motor vehicle consultant, and
(f) a person who carries on a prescribed business.
Where it appears to the Director-General that a dealer has, in the course of business, repeatedly engaged in unjust conduct, the Director-General may, with the consent of the Minister:
(a) request the dealer to execute a deed in terms approved by the Director-General whereby the dealer gives undertakings as to:
(i) the discontinuance of the unjust conduct,
(ii) the dealer’s future conduct, and
(iii) the action the dealer will take to rectify the consequences of the dealer’s unjust conduct, or
(b) apply to the Tribunal for an order under section 20L (1).
Where the Director-General makes a request or application under subsection (1), it shall be presumed, unless the contrary is proved, that the Director-General does so with the consent of the Minister.
Where a dealer executes a deed under subsection (1) (a) and observes the undertakings given in the deed:
(a) a notice may not be served under section 20D or any thing done under section 20E, and
(b) the Director-General may not apply for an order under section 20L (1),
by reason of any conduct to which the undertakings relate.
Where a dealer executes a deed containing undertakings as referred to in section 20J (1) (a), the Director-General shall:
(a) lodge a copy of the deed with the principal registrar of the Tribunal, and
(b) give a copy of the deed to the dealer who executed it.
The Director-General shall retain all deeds and shall register the deeds in a Register of Undertakings kept by the Director-General and containing the prescribed particulars.
The Register of Undertakings may, at any reasonable time, be inspected by any person free of charge.
A dealer shall observe undertakings given by the dealer in a deed executed under section 20J (1) (a).
A prosecution for an offence under subsection (4) shall not be instituted except by the Director-General with the leave of the Tribunal given when making an order in accordance with section 20L (2).
Where, on the application of the Director-General, the Tribunal is satisfied after inquiry that a dealer has repeatedly engaged in unjust conduct, the Tribunal may order the dealer to refrain from engaging in unjust conduct in the course of carrying on business and the dealer shall comply with the order.
Where, on the application of the Director-General, the Tribunal is satisfied that a dealer has failed to observe an undertaking given by the dealer in a deed executed under section 20J (1) (a), the Tribunal may make an order under subsection (1) against the dealer and, in the case of an undertaking referred to in section 20J (1) (a) (iii), an order to observe that undertaking within a time specified by the Tribunal when making the order.
Where the Director-General applies for an order under subsection (1) or (2) against a dealer that is a body corporate and the Tribunal is satisfied that the unjust conduct or breach of undertaking to which the application relates was engaged in with the consent or connivance of a person who, at the time of the conduct or breach, was a director of, or a person concerned in the management of, the body corporate, the Tribunal may, in addition to any other order it may make under this section, make an order prohibiting the person from consenting to, or conniving at, engagement in unjust conduct, or a breach of an undertaking under section 20J (1) (a), by the body corporate or any other body corporate of which the person is a director or in the management of which the person is concerned and the person to whom the order relates shall comply with the order.
An order under this section may be made subject to such conditions (whether as to the duration of the order or otherwise) as the Tribunal thinks fit, including conditions as to the future conduct of the dealer and conditions specifying the action to be taken by the dealer to rectify the consequences of the dealer’s unjust conduct.
The Tribunal may, on the application of the Director-General, vary or discharge an order made under section 20L.
The holder of a licence must keep at a place of business in respect of which the licence is granted a register in the prescribed form.
If a person who holds a dealer’s licence also carries on under the authority of that licence the business of an auto-dismantler, a wholesaler, a motor vehicle parts reconstructor or a motor vehicle consultant or a prescribed business, the person must keep a register in respect of that business as well as a register in respect of the person’s business (if any) as a dealer.
Despite subsections (1) and (2), a register may be kept at only one of the places of business in respect of which a licence is granted if the register is kept in a form that may be accessed at all places of business covered by the licence.
The holder of a dealer’s licence must enter in the register kept in respect of the business carried on under the authority of that licence:
(a) the prescribed particulars of every second-hand motor vehicle acquired in the course of carrying on that business, and
(b) the prescribed particulars of the disposal of each such vehicle, and
(c) where a vehicle referred to in paragraph (b) is disposed of by sale at an auction—the prescribed particulars of the purchaser of the vehicle.
The holder of an auto-dismantler’s licence must enter in the register kept in respect of the business carried on under the authority of that licence:
(a) the prescribed particulars of every motor vehicle and every prescribed part or accessory of a motor vehicle acquired in the course of carrying on that business, and
(b) the prescribed particulars of the disposal of each such vehicle and of each such part or accessory.
The holder of a wholesaler’s licence must enter in the register kept in respect of the business carried on under the authority of that licence:
(a) the prescribed particulars of each second-hand motor vehicle acquired in the course of carrying on that business, and
(b) the prescribed particulars of the disposal of each such vehicle.
The holder of a motor vehicle parts reconstructor’s licence must enter in the register kept in respect of the business carried on under the authority of that licence:
(a) the prescribed particulars of every prescribed part or accessory of a motor vehicle acquired in the course of carrying on that business, and
(b) the prescribed particulars of the disposal of each such part or accessory.
Where the regulations so provide, the holder of a motor vehicle consultant’s licence must enter in the register kept in respect of the business carried on under the authority of that licence the prescribed particulars of every prescribed transaction entered into in the course of carrying on that business.
The holder of a prescribed licence must enter in the register kept in respect of the business carried on under the authority of that licence the prescribed particulars of every prescribed transaction entered into in the course of carrying on that business.
The holder of a licence must make an entry required by this section within 1 trading day after the transaction to which the entry relates is completed.
A dealer who acquires motor vehicles for sale on consignment must:
(a) keep in respect of those vehicles a separate dealer’s register, and
(b) enter in that register the prescribed particulars referred to in section 21 (3) relating to those vehicles,
and must not enter those prescribed particulars in the register required to be kept by the dealer under section 21.
The dealer must make an entry required by this section within 1 trading day after the transaction to which the entry relates is completed.
A register required to be kept by this section may be kept at only one of the places of business in respect of which a licence is granted if the register is kept in a form that may be accessed at all places of business covered by the licence.
If a person who is the holder of a dealer’s licence demolishes or dismantles:
(a) a motor vehicle the particulars of which are required to be entered in the register kept under section 21 in relation to the person’s business as a dealer, or
(b) parts or accessories of such a vehicle,
the person must immediately transfer the prescribed particulars from that register to the register kept in respect of the person’s business as an auto-dismantler.
Sections 21–21B, or such of those sections as may be specified in the relevant order, do not apply:
(a) to an exempted person, or
(b) in relation to an exempted motor vehicle, or
(c) in relation to a part or accessory of a motor vehicle other than a part or accessory of a kind prescribed by the regulations.
(Repealed)
Without affecting any other provision of this Part, where a person is the holder of more than one licence or where more than one licence relates to the same place of business, a separate register shall be kept in respect of the business which is carried on pursuant to the authority conferred by each licence.
When the holder of a licence is required by a provision of this Part to make an entry in a register required to be kept under this Act, it is sufficient compliance with that requirement if an agent or partner of that holder, or a person employed by that holder in the business to which the licence relates, makes the entry.
If an agent, partner or employee of a holder of a licence makes an entry in such a register, the entry is, until the contrary is proved, to be presumed for the purposes of any legal proceedings to have been made by the holder.
(Repealed)
A register required to be kept pursuant to this Part may, at any time during which a place of business at which the register is required to be kept or to be able to be accessed is open for business, be inspected, and copies of all or any part of any entry in the register taken, by an authorised officer.
An authorised officer may, for the purposes of inspecting and of taking copies of all or any part of any entry in a register required to be kept pursuant to this Part, take and retain possession of the register if the authorised officer supplies the person who is required to keep the register with a blank duplicate register.
Until a register taken by an authorised officer is returned, an entry required to be made in the register under this Part shall not be required to be so made, but shall be made in the duplicate register supplied by the authorised officer under subsection (2).
Forthwith after a register, taken under subsection (2), is returned to the person who is required to keep the register, that person shall:
(a) transfer each entry made in the duplicate register to the register so returned, and sign his or her name to each entry so transferred, and
(b) return the duplicate register to an authorised officer.
Subject to subsection (6):
(a) the holder of a licence who, on demand made in accordance with subsection (1), refuses or neglects to produce a register required to be kept by the holder pursuant to this Part to an authorised officer, or
(b) a person who wilfully obstructs an authorised officer while acting in the exercise of any powers conferred on the authorised officer under that subsection or subsection (2),
is guilty of an offence.
The holder of a licence is not required under this section to produce a register, required to be kept by the holder pursuant to this Part, to an authorised officer unless the authorised officer produces evidence of his or her appointment or authority, if requested to do so.
The holder of a licence must not offer or display a motor vehicle for sale except at a place of business in respect of which the licence is granted.
Despite subsection (1), the holder of a licence who offers or displays a motor vehicle for sale, or buys or sells a motor vehicle, at a place other than a place of business in respect of which the licence is granted is not guilty of an offence against this Act if:
(a) a person has, without being solicited to do so, invited the holder of the licence to display the vehicle to the person, or carry out all or part of the transactions relating to the sale or purchase of the vehicle, at that other place, or
(b) that other place is a place at which the holder of the licence carries on business in accordance with subsection (3).
The holder of a licence may carry on business at a place as referred to in subsection (2) (b) only if:
(a) the holder of the licence does not offer or display for sale at that place second-hand motor vehicles (other than second-hand tractors or second-hand self-propelled agricultural machinery), and
(b) the business carried on by the holder of the licence at that place is limited to advising persons with respect to the quality, performance and characteristics of motor vehicles and making offers to, or receiving offers from, persons to enter agreements for the sale of motor vehicles (not being second-hand motor vehicles other than second-hand tractors or second-hand self-propelled agricultural machinery).
In subsection (2), the reference to a place other than a place of business in respect of which the licence is granted does not include a reference to a carriageway or footpath that is in the immediate vicinity of the place of business.
A person must not, by auction or in relation to a proposed auction, offer or display for sale, or sell, a motor vehicle to which any number-plate is attached unless there is attached to the vehicle, in the prescribed manner, an inspection report, issued in respect of the vehicle not more than 1 month before the date of the auction or proposed auction, to the effect that the vehicle was found to be roadworthy at the time of the issue of the report.
Subsection (1) does not have effect in relation to a motor vehicle offered or displayed for sale, or sold, at an auction or in relation to a proposed auction if:
(a) at the times when the vehicle is offered or displayed for sale there is attached to the vehicle or displayed at the place where the vehicle is offered or displayed for sale, in the prescribed manner, a notice in the prescribed form, and
(b) the terms of the notice are complied with, and
(c) the purchase price of the vehicle is not altered from that which was bid at the auction or which was subsequently negotiated, and
(d) the purchaser is not required to meet any part of the cost of repairs to the vehicle required before it is possible to comply with the terms of the notice.
This section does not have effect in relation to:
(a) a motor vehicle offered or displayed for sale, or sold, at an auction or proposed auction if, at any time within 1 month before the auction or proposed auction, the vehicle was registered for the first time (or the registration of the vehicle was renewed) under the Road Transport Act 2013, or
(b) the offer or display to a trade owner of a motor vehicle for sale at an auction or proposed auction, or
(c) the sale of a motor vehicle to a trade owner by the acceptance of an offer referred to in paragraph (b).
A person shall not, by auction or in relation to a proposed auction, offer or display for sale, or sell, a motor vehicle to which no number-plate is attached unless there is displayed with the vehicle:
(a) a certificate or receipt as to the surrender of the number-plates issued by Roads and Maritime Services or by a person authorised under a law in force in any other State, or a Territory, of the Commonwealth to issue any such certificate or receipt, or
(b) a declaration by the owner of the vehicle in or to the effect of the prescribed form.
This section does not have effect in relation to:
(a) the offer or display to a trade owner of a motor vehicle for sale at an auction or proposed auction, or
(b) the sale of a motor vehicle to a trade owner by the acceptance of an offer referred to in paragraph (a).
This section does not apply to or in relation to:
(a) the offering or displaying for sale, or sale, of an exempted motor vehicle,
(b) the offering or displaying for sale, or sale, of a motor vehicle:
(i) by bona fide auction,
(ii) to an exempted person, or
(iii) to a trade owner, or
(c) the offering or displaying for sale, or sale, of a substantially demolished or substantially dismantled motor vehicle by a vehicle-wrecker.
Where a dealer offers or displays for sale a second-hand motor vehicle (not being a second-hand motor cycle or demonstrator motor vehicle), the dealer shall attach, or cause to be attached, to the vehicle, in the prescribed manner, a notice, in the prescribed form, containing the prescribed particulars in relation to the vehicle.
A dealer shall not sell a second-hand motor vehicle (not being a second-hand motor cycle or demonstrator motor vehicle) unless, at or before the time of sale, the dealer and the purchaser sign the notice attached to the vehicle pursuant to subsection (2), or a copy of that notice, and the dealer delivers the notice or the copy, as the case may be, to the purchaser for retention by the purchaser.
In any proceedings against a dealer for failing to comply with the requirements of subsection (2), it shall be presumed, in the absence of proof to the contrary, that a second-hand motor vehicle (not being a second-hand motor cycle or demonstrator motor vehicle) found at a place of business in respect of which a dealer’s licence is granted is offered or displayed for sale unless:
(a) the vehicle has attached to it, in the prescribed manner, a notice, in the prescribed form, specifying that the vehicle is not for sale, and
(b) the vehicle does not have any other notice attached to it, or any marking on it, that purports to be the price of the vehicle or that suggests that the vehicle is being offered or displayed for sale.
A dealer shall not sell a second-hand motor cycle unless, at or before the time of sale, the dealer and the purchaser sign a notice, in the prescribed form, containing the prescribed particulars in relation to the motor cycle and the dealer delivers the notice to the purchaser for retention by the purchaser.
A dealer shall not sell a demonstrator motor vehicle unless, at or before the time of sale, the dealer and the purchaser sign a notice, in the prescribed form, containing the prescribed particulars in relation to the vehicle and the dealer delivers the notice to the purchaser for retention by the purchaser.
Where any prescribed damage is done to a motor vehicle (not being a second-hand motor vehicle) and a dealer is aware, or on a reasonable inspection of the vehicle would have been aware, of the damage, the dealer shall not sell the vehicle, whether or not the damage has been repaired, unless, at or before the time of sale, the dealer and the purchaser sign a notice, in the prescribed form, containing the prescribed particulars in relation to the damage to the vehicle and the dealer delivers the notice to the purchaser for retention by the purchaser.
A notice shall not be treated for the purposes of subsection (2), (5), (6), or (7) as containing the prescribed particulars if any of the prescribed particulars contained in the notice is false or misleading in a material particular.
Where the sale of a motor vehicle is effected by a person acting as the agent or employee of a dealer, compliance by that agent or employee with the requirements imposed on the dealer by subsection (3), (5), (6) or (7), as the case may require, shall be treated as compliance by the dealer with those requirements.
Where the holder of a dealer’s licence offers or displays for sale, or sells, a motor vehicle on behalf of another dealer, this section does not apply to the other dealer.
Where:
(a) a person carrying on (whether in partnership or otherwise) the business of a dealer does not comply with any requirement imposed on the person by subsection (2), (3), (5), (6) or (7), the person is guilty of an offence, or
(b) a person carrying on in partnership (whether under a joint licence or otherwise) the business of a dealer does not comply with any requirement imposed on the person by subsection (2), (3), (5), (6) or (7), each of the person’s partners is guilty of an offence.
In proceedings for an offence under subsection (11), it is a defence if the accused person proves that the motor vehicle concerned was offered or displayed for sale, or sold, as the case may be, to an auto-dismantler or motor vehicle parts reconstructor for the purpose of being demolished or dismantled.
(Repealed)
In proceedings for an offence under section 24 it is a defence if:
(a) in the case of the omission of any prescribed particular from a notice referred to in that section, the accused person proves that the motor vehicle concerned was brought into New South Wales for the purpose of resale and that the prescribed particular omitted was unknown to the person and could not, with reasonable diligence, be ascertained by the person, or
Without limiting the generality of section 55B, where a person is convicted of an offence under section 9 (1) (a), (2) (a), (3) (a), (4) (a), (5) (a), (6) (a) or (7) (a), the court before which the person was convicted may, in addition to any penalty it may impose, make either or both of the following orders:
(a) an order that any specified motor vehicle to which the offence relates be forfeited to the Crown,
(b) an order that the person pay to the Crown an amount, as assessed by the court, equal to the proceeds derived by the person from the commission of the offence or any other offence to which this section applies and which the court has taken into account in imposing any such penalty.
Before making an order under this section, the court may require notice to be given to, and may hear, such persons as the court thinks fit.
For the purpose of making an order against a person under subsection (1) (b), the court may:
(a) take into account such matters as the court thinks fit,
(b) to the extent specified by the court—treat any interest in real or personal property acquired by the person by means of proceeds derived by the person from the commission of an offence as proceeds derived by the person from the commission of the offence, and
(c) treat the equivalent, in money terms, of any interest in real or personal property derived by the person from the commission of an offence as proceeds derived by that person from the commission of the offence.
Without affecting any other right of appeal, an order under subsection (1) (a) in relation to any motor vehicle is appellable by any person who has an interest in the vehicle:
(a) in the case of a person convicted of the offence—in the same manner as if the order were, or were part of, an order imposing a penalty in respect of the offence, or
(b) in any other case—in the same manner as if the person had been convicted of an offence to which this section applies and the order were, or were part of, an order imposing a penalty in respect of the offence.
Without affecting any other right of appeal, an order under subsection (1) (b) is appellable in the same manner as if it were, or were part of, an order imposing a penalty in respect of the offence.
The court to which an appeal is made in respect of an order under subsection (1) (a) may, pending the hearing and determination of the appeal, make such orders as it thinks fit for the custody of the motor vehicle the subject of the order.
On appeal, an order under this section may be confirmed, revoked or varied.
An order under subsection (1) (b) may, by leave of the court by which it was made, be enforced, irrespective of the amount ordered to be paid, as if it were a judgment in a civil matter given by that court.
An amount ordered to be paid under subsection (1) (b) shall be paid into the Fund.
Where:
(a) proceedings are being taken against a person for an offence under section 9 (1) (a), (2) (a), (3) (a), (4) (a), (5) (a), (6) (a) or (7) (a), or
(b) an order has been made under section 55C (1) (b) against a person,
the court before which those proceedings are being taken or by which the order has been made may, by order, prohibit:
(c) the person from disposing of or otherwise dealing with any interest in specified property, and
(d) any other specified person from disposing of or otherwise dealing with any interest in specified property:
(i) which belongs to the person referred to in paragraph (c) and in respect of which the specified person has a power of attorney from that person or any other power of disposition, or
(ii) which the specified person holds for or on behalf of the person referred to in paragraph (c),
otherwise than in such manner as may be specified in the order.
Without affecting any power conferred on it by subsection (1), the Supreme Court may at any time make an order of the kind referred to in that subsection against a person:
(a) in respect of whom any other court may make such an order, or
(b) whom any other court has committed for trial or for sentence.
Before making an order under this section, a court may require notice to be given to, and may hear, such persons as it thinks fit.
An order under this section may be given or served in such manner as the court directs or as may be prescribed by rules of court.
Any person who holds an interest in property the subject of an order under this section may apply for the revocation or variation of the order.
An order under this section may be revoked or varied by the Supreme Court (subject to rules of that Court restricting the making of applications thereto) or:
(a) where proceedings in respect of the offence are being taken—by the court before which those proceedings are being taken, or
(b) in any other case—by the court before which proceedings in respect of the offence were last taken.
Any person to or upon whom an order made under subsection (1) or (2) is given or served in accordance with this section and who, while it is in force, acts in contravention of or fails to comply with the order shall be guilty of an offence against this Act and shall be liable to a penalty not exceeding 20 penalty units or to imprisonment for a term not exceeding 6 months, or both.
In this section,
Where in any proceedings (whether for an offence against this Act or otherwise) it is proved that on a certain day or during any period a person was the holder of a dealer’s licence, auto-dismantler’s licence, wholesaler’s licence, motor vehicle parts reconstructor’s licence, car market operator’s licence, motor vehicle consultant’s licence or prescribed licence it shall be presumed, in the absence of proof to the contrary, that the person was a dealer, auto-dismantler, wholesaler, motor vehicle parts reconstructor, car market operator, motor vehicle consultant or person carrying on a prescribed business, as the case may be, on that day or during that period, as the case may be.
A document purporting to be certified by the Director-General and stating that a person is not, or was not, on a date specified in the document the holder of a licence shall be received in proceedings before any court or tribunal as evidence of that fact.
A certificate of the Director-General certifying that, on a date or during a period specified in the certificate:
(a) a person specified therein was or was not the holder of a licence,
(b) a place specified therein was or was not a place at which the holder of a licence was authorised to carry on the business to which the licence relates,
(c) a person specified therein was or was not an exempted person,
(d) a motor vehicle specified therein was or was not an exempted motor vehicle, or
(e) a person specified therein was or was not a registered motor vehicle salesperson,
is admissible in evidence in proceedings before any court or tribunal and is prima facie evidence of the matters stated therein.
In any proceedings under this Act:
(a) where a name, business name, address, telephone number or post office box number specified in a statement is that of a person, or of the agent of a person, who:
(i) is the owner or supplier of any motor vehicle, substantially demolished or substantially dismantled motor vehicle or parts or accessories of motor vehicles,
(ii) is the supplier of any services relating to motor vehicles, parts or accessories referred to in subparagraph (i), or
(iii) has, otherwise than as an owner, an interest in any motor vehicles, parts or accessories referred to in subparagraph (i) or the supply of any services referred to in subparagraph (ii),
being motor vehicles, parts or accessories the supply, use or disposal of which the statement is intended or apparently intended to promote, that person or agent, as the case may be, shall be deemed, in the absence of proof to the contrary, to have caused the statement to be published, and
(b) a person who causes a statement to be published shall be deemed to have done so on any day on which the statement was published.
A register required to be kept pursuant to Part 3, whether or not the register has been kept in or to the effect of the prescribed form, shall be received in proceedings before any court or tribunal as evidence of the matters required by or under this Act to be recorded in it and an entry in any such register shall be received in any such proceedings as prima facie evidence of any such matters contained in the entry.
If in any proceedings for an offence under this Act or the regulations it is proved that a person sold, or offered or displayed for sale, more than 4 motor vehicles within a 12 month period to any other person or persons (other than a dealer), it is presumed in the absence of proof to the contrary that the person was carrying on business as a dealer during that period.
Nothing in subsection (1) precludes a person who sells, or offers or displays for sale, 4 or less motor vehicles within a 12 month period to any other person or persons from being found to be a dealer.
The Governor may make regulations, not inconsistent with this Act, prescribing any matter which by this Act is required or permitted to be prescribed or which is necessary or convenient to be prescribed for carrying out or giving effect to this Act.
Without prejudice to the generality of subsection (1), the Governor may make regulations for or with respect to:
(a) regulating the conduct of any person who is required to hold a licence, or the person’s servants or agents, in carrying on the business to which the licence relates, including the prescribing and the adoption or incorporation, pursuant to subsection (2A), of codes, rules or standards of conduct, practice or behaviour to be observed by any such person, servant or agent in carrying on that business,
(a1) the making of applications for licences, including the means of determining and the matters to be taken into consideration in assessing the financial standing or financial resources of applicants and the determination and payment of fees in connection with applications for licences and licences,
(b) prohibiting or regulating the employment by any person who is required to hold a licence of persons convicted of offences under this Act or of offences involving fraud or dishonesty or other prescribed offences, or persons whose application for a licence has been refused or whose licence has been revoked,
(c) requiring any person who is required to hold a licence, or the person’s servants or agents, to make reports to prescribed persons with respect to offences involving motor vehicles or such parts of motor vehicles as may be prescribed and to forward such copies of records kept by the person, at such intervals, as may be prescribed, to persons specified in the regulations,
(d) (Repealed)
(e) providing for the remission of any fees, or part of any fees, paid in respect of a licence, in prescribed circumstances,
(f) (Repealed)
(g) prohibiting the commission by any person who is required to hold a licence of any prescribed practices,
(h) providing for the registration and the renewal, cancellation and suspension of registration of motor vehicle salespersons, the issuing of certificates of registration of motor vehicle salespersons, the payment of registration fees and the keeping and inspection of records in respect of registration,
(i) regulating the conduct of motor vehicle salespersons, including the prescribing or the adoption or incorporation, pursuant to subsection (2A), of codes, rules or standards of conduct, practice or behaviour to be observed by motor vehicle salespersons,
(j) providing for the form and content of advertisements by holders of licences, including:
(i) requiring the inclusion of specified information in advertisements or the use of specified statements in advertisements, and
(ii) prohibiting the inclusion of specified information in advertisements or the use of specified statements in advertisements,
(k) providing for the control and regulation of the sale of motor vehicles on consignment,
(l) prescribing the form and contents of contracts and other documents relating to the sale of motor vehicles, substantially demolished or substantially dismantled motor vehicles and parts and accessories of motor vehicles and other dealings in those vehicles, parts and accessories and prescribing the persons by whom and the circumstances in which those contracts and other documents may or shall be used,
(m) providing for the keeping and management of trust accounts by the holders of licences,
(n) requiring the keeping of records,
(o) providing for:
(i) the form in which records required to be kept by or under this Act may or shall be kept, whether by use of a bound or looseleaf book, by the recording and storage of appropriate information by means of a mechanical, electronic or other device, or otherwise,
(ii) the inspection, reproduction and retrieval of those records or that information and the making and provision of copies,
(iii) the taking of precautions for guarding against damage to, destruction of or falsification of or in those records or that information and the taking of measures for the discovery of falsification of or in those records or that information,
(iv) the circumstances in which records required to be kept by or under this Act may be destroyed, and
(v) any other associated matters,
(p) providing for the qualifications and appointment of auditors of accounts of holders of licences, the form and content of auditors reports and the times at which and the persons to whom auditors reports shall be furnished,
(p1) requiring an initial contribution to be made to the Fund in respect of a licence,
(q) providing for the making of claims against the Fund, including the form and manner in which claims may be made, the time within which claims shall be made, the persons who may make claims, the matters in respect of which claims may be made, the determination and payment of claims and the recovery of amounts paid in respect of claims, and
(r) requiring the holder of a licence to furnish specified information or prohibiting the holder of a licence from furnishing specified information relating to a motor vehicle to a person with whom, in respect of the vehicle, the holder has any dealing.
A regulation may adopt or incorporate by reference, wholly or in part, with or without modification, any standards, rules, codes, specifications or methods prescribed or published by any authority or body, whether as in force at the time of adoption or incorporation or as amended and published from time to time by that authority or body.
The regulations may impose a penalty not exceeding 20 penalty units for an offence arising under the regulations.
A provision of a regulation may:
(a) apply generally or be limited in its application by reference to specified exceptions or factors,
(b) apply differently according to different factors of a specified kind, or
(c) authorise any matter or thing to be determined, applied or regulated from time to time by any specified person or body,
or may do any combination of those things.
(Repealed)
A person or class of person may be prescribed for the purposes of the definition of
The holder of a licence under this Act is not required to hold a licence under the Second-hand Motor Dealers Act 1956 and any licence under that Act shall cease to have effect upon the issue to the holder thereof of a licence under this Act.
Where a licence under the Second-hand Motor Dealers Act 1956 ceases to have effect (as provided in subsection (1)) the Commissioner for Motor Transport shall refund to the person who held the licence the appropriate amount in respect of that licence.
For the purposes of subsection (2) the appropriate amount in respect of a licence is the amount that equals one-twelfth of the fee paid for the licence in respect of each whole month of the remainder of the period for which the licence would have remained in force if it had not ceased to have effect.
The Second-hand Motor Dealers Act 1956 (other than sections 18 and 19 thereof) is repealed.
Schedule 2 has effect.
(Section 27 (1))
Column 1 | Column 2 | Column 3 |
Description of motor vehicle | Kilometres | Period |
Motor vehicle (not being a motor cycle or a second-hand motor vehicle) that has been driven for less than 15,000 km at the time it is sold by dealer | 20,000 (after manufacture) | 12 months less 1 month for each 2,000 km that the vehicle has been driven before sold by dealer |
Motor vehicle (not being a motor cycle or a second-hand motor vehicle) that has been driven for 15,000 km or more at the time it is sold by dealer | 5,000 (after sale) | 3 months |
Second-hand motor vehicle (not being a motor cycle) that has been driven for not more than 160,000 km and was manufactured not more than 10 years before the time it is sold by dealer | 5,000 (after sale) | 3 months |
(Repealed) | ||
Motor cycle (not being a motor cycle that is of such design as to be incapable of being registered in New South Wales, or a second-hand motor cycle) that has been driven for less than 7,000 km at the time it is sold by dealer | 10,000 (after manufacture) | 6 months less 1 month for each 2,000 km that the motor cycle has been driven before sold by dealer |
Motor cycle (not being a motor cycle that is of such design as to be incapable of being registered in New South Wales, or a second-hand motor cycle) that has been driven for 7,000 km or more at the time it is sold by dealer | 3,000 (after sale) | 3 months |
Motor cycle (not being a second-hand motor cycle) that is of such design as to be incapable of being registered in New South Wales | 5,000 (after sale) | 3 months |
Second-hand motor cycle (not being a motor cycle of such design as to be incapable of being registered in New South Wales) that has been driven for not more than 30,000 km and was manufactured not more than 5 years before the time it is sold by dealer | 3,000 (after sale) | 3 months |
(Repealed) |
(Section 60)
The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts:
• Motor Trade Legislation Amendment Act 2001 (but only to the extent to which it amends this Act)
• Motor Dealers Amendment Act 2007
Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.
To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
In this Schedule:
Sections 29CA–29CC, as inserted by the 2001 amending Act, apply only to contracts for sale entered into after the commencement of section 29CA.
There is to be paid into the Motor Dealers Compensation Fund any amounts held in the Fund constituted under section 39 immediately before the commencement of section 39 (1), as substituted by the 2001 amending Act.
There may be paid out of the Motor Dealers Compensation Fund amounts in respect of costs that arose before the commencement of section 39 (4), as substituted by the 2001 amending Act, if those amounts are amounts of the kind referred to in that subsection.
Sections 12 (2) (i) and (4) (k), 20D (1) (d1) and 20E (1B), as inserted by the 2001 amending Act, do not apply to or in respect of an act or omission giving rise to proceedings for an offence if the act or omission occurred before the commencement of this clause.
In this clause:
An application for a licence made, but not determined, before the commencement of this clause is to be dealt with under this Act as amended by the amending Act.
Sections 20D and 20E, as amended by the amending Act, extend to a licence in force immediately before the commencement of this clause.
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