Motor Dealers (Amendment) Act 1990 (NSW)
MOTOR DEALERS (AMENDMENT) ACT 1990 No. 38
NEW SOUTH WALES
TABLE OF PROVISIONS
1. Short title
2. Commencement
3. Amendment of Motor Dealers Act 1974 No. 52
4. Savings and transitional provisions
SCHEDULE 1—AMENDMENTS
SCHEDULE 2—SAVINGS AND TRANSITIONAL PROVISIONS
MOTOR DEALERS (AMENDMENT) ACT 1990 No. 38
NEW SOUTH WALES
Act No. 38, 1990
An Act to amend the Motor Dealers Act 1974 to make further provision with respect to the obligations of motor dealers to repair defects in vehicles, the payment of compensation from the Motor Dealers Compensation Fund and the keeping of records; and for other purposes. [Assented to 22 June 1990]
Motor Dealers (Amendment) I990
The Legislature of New South Wales enacts:
Short title
1. This Act may be cited as the Motor Dealers (Amendment) Act
1990.
Commencement
2. This Act commences on a day or days to be appointed by
proclamation.
Amendment of Motor Dealers Act 1994 No. 52
3. The Motor Dealers Act 1974 is amended as set out in Schedule
1 .
Savings and transitional provisions
4. Schedule 2 has effect.
SCHEDULE 1 - AMENDMENTS
(Sec. 3)
(1) Long title:
Omit "a vehicle-wrecker", insert instead “an auto-dismantler”,
(2) Section 4 (Definitions):
(a) Insert in alphabetical order in section 4 (1): “auto–dismantler” means a person who carries on the
business of:
(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
Motor DeaIers (Amendment) 1990
SCHEDULE 1—AMENDMENTS— continued
(c)
buying and selling prescribed kinds of parts or accessories of motor vehicles;
"auto-dismantler's licence" means an auto-dismantler's
licence granted under section 12;
From the definition of "financier" in section 4 (l), omit
"who is a credit provider within the meaning of the Credit
Act 1984 or a finance broker within the meaning of the
Credit (Finance Brokers) Act 1984 and".
From the definition of "licence" in section 4 (l), omit “avehicle-wrecker's", insert instead "an auto-dismantler's".
From section 4 (l), omit the definitions of
"vehicle-wrecker" and "vehicle-wrecker's licence".
insert instead: From section 4 (l), omit the definition of "wholesaler",
"wholesaler" means a person who carries on the business of buying motor vehicles from any person and selling those vehicles to, or exchanging those vehicles with, persons who are financiers or holders of licences (other than car market operators' licences or motor vehicle consultants' licences) and only those persons;
| (3) | Section 5 (Form of applications, registers, notices etc.): |
After section 5 (2), insert:
(3) 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.(4) An exemption may be given unconditionally or subject to conditions relating to the use of the form.
(5) If an exemption is given subject to conditions, the exemption does not have effect while any of the conditions is not being complied with.
(4) Section 9 (Offences):
(a)
Omit “a vehicle-wrecker" wherever occurring, insert instead "an auto-dismantler".
Motor Dealers (Amendment) 1990
SCHEDULE 1—AMENDMENTS— continued
(b)
Omit "a vehicle-wrecker's licence" wherever occurring, insert instead "an auto-dismantler's licence".
(c) After section 9 (12), insert:
(13) Despite subsection (1) (c), the holder of a dealer's licence who carries on the business of a dealer at a place other than the 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).
(5) Section 12 (Grant or refusal of licence):
(a) Omit section 12 (2) (f), insert instead:
(f) the applicant does not have the prescribed qualifications or experience (if any) or does not have sufficient knowledge or expertise to carry on such a business; (f1) the application does not comply with section 10 or the applicant has not complied with a requirement referred to in section 10 (6);
(b) Omit section 12 (4) (e), insert instead:
(e) the officers of the body corporate do not have the prescribed qualifications or experience (if any) or do not have sufficient knowledge or expertise to carry on such a business; (e1) the application does not comply with section 10 or the applicant has not complied with a requirement referred to in section 10 (6);
(c)
After “prescribed fee” in section 12 (8), insert "(which may include an initial contribution to the Fund)".
(6) Section 20E (Determination of disciplinary measures by the
Commissioner):
After section 20E (l), insert:
(1A) Without limiting the powers conferred by
subsection (l), among the requirements that theMotor Dealers (Amendment) 1990
SCHEDULE 1—AMENDMENTS— continued
Commissioner 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 Commissioner specifies; or
(b)
indemnify the Fund to such extent as the Commissioner specifies in the event of a particular contingency arising concerning the activities of the holder of the licence.
(7) Section 20I (Interpretation):
Omit section 20I (2) (a), insert instead:
(a) an auto-dismantler;
(8) Sections 21–2lC:
Omit sections 21–22E, insert instead:
Holder of licence to keep register21. (1) The holder of a licence must keep at the place of business in respect of which the licence is granted a register in the prescribed form.
(2) 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.
(3) 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 and every demonstrator motor vehicle acquired in the course of carrying on that business; and
(b)
the prescribed particulars of the disposal of each such vehicle; and
Motor Dealers (Amendment) 1990
SCHEDULE 1—AMENDMENTS— continued
(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.
(4) 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.
(5) 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 and every demonstrator motor vehicle acquired in the course of carrying on that business; and (b) the prescribed particulars of the disposal of each such vehicle.
(6) 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.
(7) 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.
(8) The holder of a prescribed licence must enter in the
register kept in respect of the business carried on under theMotor Dealers (Amendment) 1990
SCHEDULE 1—AMENDMENTS— continued authority of that licence the prescribed particulars of every prescribed transaction entered into in the course of carrying on that business.
(9) The holder of a licence must make an entry required by this section within l trading day after the transaction to which the entry relates is completed.
Special requirements for dealers who acquire motor vehicles for sale on consignment
21A. (1) 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.
(2) The dealer must make an entry required by this section within 1 trading day after the transaction to which the entry relates is completed.
Special requirements to be complied with by dealers who demolish or dismantle motor vehicles
21B. 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.
Motor Dealers (Amendment) 1990
SCHEDULE 1—AMENDMENTS— continued
Certain provisions not to apply in respect of exempted persons etc.
21C. 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.
(9) Section 22F: Omit the section, insert instead:
Agent, partner or employee of licence holder may make entry in register on behalf of licence holder
provision of this Part to make an entry in a register 22F. (1) When the holder of a licence is required by a 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.
(2) 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.
| (10) | Section 23A |
Omit the section, insert instead:
Premises at which the holder of a licence may lawfully offer or display motor vehicles for sale
23A. (1) The holder of a licence must not offer or display a motor vehicle for sale except at the place of business in respect of which the licence is granted.
(2) Despite subsection (l), 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 the place of businessMotor Dealers (Amendment) 1990
SCHEDULE 1—AMENDMENTS— continued 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 an exhibition, fair, show, display or other function is being conducted and the holder of the licence carries on business at that place in accordance with subsection (3). (3) The holder of a licence may carry on business at a place 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). (4) In subsection (2), the reference to a place other than the 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.
Motor Dealers (Amendment) 1990
SCHEDULE 1—AMENDMENTS— continued
(11) Section 23B: Omit the section, insert instead:
Sale by auction of vehicles to which number-plates are attached
23B. (l) 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.
(2) 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.
(3) 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 Traffic Act 1909; or
Motor Dealers (Amendment) 1990
SCHEDULE 1—AMENDMENTS— continued (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).
Section 23C (Sale by auction of vehicles to which no
number-plates are attached): At the end of section 23C, insert:
(2) 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).
Section 24 (Dealers' notices in respect of sale of second-hand motor vehicles, second-hand motor cycles, demonstrators and damaged new motor vehicles):
From section 24 (12), omit “a vehicle–wrecker”, insert instead "an auto-dismantler".
| auto-dismantlers): Section 26A (Sale of certain motor vehicles by | ||||||
|
instead “auto–dismantler’s”.
(d) After section 26A (3), insert:
(4) An auto-dismantler must, as soon as practicable after demolishing or dismantling a motor vehicle in the course of carrying on the business of an auto-dismantler, mark in the prescribed manner each prescribed part or accessory derived from the demolished or dismantled vehicle.
Motor Dealers (Amendment) 1990
SCHEDULE 1—AMENDMENTS— continued
(5) An auto-dismantler must, as soon as practicable after purchasing or otherwise acquiring a prescribed part or accessory of a motor vehicle in the course of carrying on the business of an auto-dismantler, mark the part or accessory in the prescribed manner.
(15) Section 26B: After section 26A, insert:
Wholesalers not to sell certain motor vehicles on consignment
26B. The holder of a wholesaler’s licence must not::
(a)
receive for sale on consignment a motor vehicle from a person other than a financier or the holder of a dealer’s licence, an auto-dismantler’s licence or a motor vehicle parts reconstructor‘s licence or of another wholesaler’s licence; or
(b) sell any such motor vehicle.
(16) Section 27 (Obligations of dealer to repair defects): After section 27 (l), insert:
(1A) For the purposes of subsection (1), a defect which occurs in a vehicle includes a defect:
(a)
which existed in the vehicle at any time before the occurrence of an event referred to in paragraph (a) or (b) of that subsection; and
(b)
which first became apparent after the event occurred,
but only if the defect is reported to the dealer within a
reasonable period after it becomes apparent.
(l 7) Section 28 (Exceptions):
(a) Omit section 28 (3) (f), insert instead:
(f)
a motor vehicle the cash price of which exceeds the amount prescribed for the purposes of this paragraph;
Motor Dealers (Amendment) 1990
SCHEDULE 1—AMENDMENTS— continued Omit section 28 (3) (g).
From section 28 (3) (i), omit “a vehicle–wrecker”, insert
instead "the holder of an auto-dismantler's licence".Omit section 28 (5) and (6), insert instead:
(5) Section 27 (l) does not apply to or in relation to the sale of an exempted motor vehicle (not being a motor cycle), but only if, at all material times when the vehicle is offered or displayed for sale, there is attached to the vehicle, in the prescribed manner, a notice in the prescribed form to the effect that section 27 (1) does not apply to or in relation to the sale of the vehicle. (6) Section 27 (1) does not apply to or in relation to the sale of an exempted second-hand motor cycle, but only if a notice in the prescribed form is delivered to the purchaser at or before the time of sale to the effect that section 27 (l) does not apply to or in relation to the sale of the motor cycle.
| (18) | Section 38A (Definitions): |
From section 38A (l), omit the definition of “failure to account”.
| (19) | Section 39 (Motor Dealers Compensation Fund): |
After section 39 (2) (a), insert:
(aa) any money paid or recovered under section 20E
(1A); and
| (20) | Section 40 (Claims against Fund): (a) Omit section 40 (2) (a), insert instead |
(a)
because of the failure of a dealer or car market operator to comply with any requirement under this Act or the regulations or of the failure of a dealer or car market operator to account; or
(b) After section 40 (3A), insert:
(3B) The Commissioner must not give a certificate under subsection (2) or (3A) unless satisfied
Motor Dealers (Amendment) 1990
SCHEDULE 1—AMENDMENTS— continued (a)
that the dealer or a car market operator with whom the person submitting the claim was dealing at the relevant time was the holder of the appropriate licence; or
(b)
that the person submitting the claim believed on reasonable grounds that, at the relevant time, the dealer or car market operator with whom that person was dealing was the holder of such a licence.
(c) After section 40 (7), insert:
(8) In this section:
"failure to account" means a failure by a dealer or car market operator to account for money or other valuable property entrusted to the dealer or operator (or to any employee or agent of the dealer or operator) in the course of the business carried on by the dealer or operator and which arises from any act or omission of the dealer or operator (or the employee or agent).
Section 46 (Certificate of inspection):
Omit "a vehicle-wrecker" wherever occurring, insert instead "an auto-dismantler".
Section 49 (Disclosures required in certain advertisements):
Omit the section.
Section 50 (Details in certain advertisements):
Omit the section.
| Section 56 (Evidence): | ||
|
instead “auto–dismantler’s”.
(b) From section 56 (l), omit "vehicle-wrecker", insert instead "auto-dismantler".
Motor Dealers (Amendment) 1990
SCHEDULE 1—AMENDMENTS— continued
Section 57 (Regulations):
After section 57 (2) (p), insert:
(p1) requiring an initial contribution to be made to the
Fund in respect of a licence;
Schedule 1 (Obligation of dealer to repair defects):
| Omit the matter relating to item 3 from Column 1, insert instead: |
| 3. 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 |
SCHEDULE 2 - SAVINGS AND TRANSITIONAL PROVISIONS
(Sec. 4)
Vehicle-wreckers
1. A person who, immediately before the commencement of Schedule l (4) (a) and (b), held a vehicle-wrecker’s licence is to be taken to be the holder of an auto-dismantler’s licence for the unexpired portion of the period for which the vehicle-wrecker’s licence was issued.
Motor vehicle defects
2. Schedule l to the Motor Dealers Act 1974, as in force immediately before the commencement of Schedule 1(26), applies to and in respect of a motor vehicle sold by a dealer before that commencement.
[Minister‘s second reading speech made in–
Legislative Assembly on 2 May 1990
Legislative Council on 31 May 1990]
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