Second-Hand Vehicle Dealers Act 1995

This

Act may be cited as the Second-hand

Vehicle Dealers Act 1995.

In this Act, unless the contrary intention appears—

auctioneer means a person who carries on the business of conducting auctions for the sale of goods, and includes a dealer who in the course of business conducts an auction for the sale of a second-hand vehicle;

authorised officer means an authorised officer under the Fair

Trading Act 1987;

business day means a day other than a Sunday or public holiday;

close associate—see section 3A;

Commissioner means the Commissioner for Consumer Affairs;

cooling-off period, in relation to a contract for the sale of a second‑hand vehicle, means the period commencing when the contract is made and concluding at the end of the second clear business day after the day on which the contract is made;

credit provider means a credit provider within the meaning of the National

Credit Code in Schedule 1 to the National

Consumer Credit Protection Act 2009 of the Commonwealth;

dealer means a person who carries on the business of buying or selling second-hand vehicles;

director of a body corporate includes—

a person occupying or acting in the position of director or member of the governing body of the body corporate, by whatever name called and whether or not validly appointed to occupy or duly authorised to act in the position; and

any person in accordance with whose directions or instructions the directors or members of the governing body of the body corporate are accustomed to act;

licence means a licence under Part

2 and licensed and licensee have corresponding meanings;

Magistrates

Court means the Civil (Consumer and Business) Division of the Magistrates

Court;

model designation means the words and symbols (if any) used by the manufacturer of a vehicle to identify the model of the vehicle;

notified premises, in relation to a dealer, means premises in relation to which the dealer has given notice to the Commissioner as required by section 14;

offer for sale—an offer for sale includes exposure for sale, an invitation to treat and the publishing, or authorising the publication, of an advertisement;

registered, in relation to a vehicle, means registered under the Motor

Vehicles Act 1959, or under a corresponding Act or law of another State or a Territory of the Commonwealth;

salesperson means a person who, for or on behalf of a dealer—

buys or sells second‑hand vehicles; or

induces or attempts to induce, or negotiates with a view to inducing, a person to buy or sell a second‑hand vehicle; or

performs a function of a kind prescribed by regulation for the purposes of this paragraph;

second-hand vehicle means a vehicle that has been used for a purpose not connected with its manufacture or sale, including a vehicle that has been used for the purpose of demonstration in connection with the sale of another vehicle;

sell includes exchange, and sell on behalf of another person; and sale,

offer for sale and expose for sale have corresponding meanings;

Tribunal means the South Australian Civil and Administrative Tribunal established under the South

Australian Civil and Administrative Tribunal Act 2013;

vehicle means a vehicle—

that is used or capable of being used for transportation on land; and

that is designed to be wholly or partly propelled by an engine;

vehicle leasing agreement means an agreement under which a vehicle is let on hire for a period exceeding four months;

vehicle leasing business means a business in which vehicles are let on hire under vehicle leasing agreements;

year of first registration, in relation to a vehicle, means the year in which the vehicle was first registered.

A reference in this Act to repairing a defect will, in relation to a defect in the battery of a prescribed electric vehicle or prescribed hybrid vehicle, be taken to be a reference to replacing the battery.

2 persons are close associates if—

1 is a spouse, domestic partner, parent, brother, sister or child of the other; or

they are members of the same household; or

they are in partnership; or

they are joint venturers; or

they are related bodies corporate; or

1 is a body corporate and the other is a director, manager, secretary or public officer of the body corporate; or

1 is a body corporate (other than a public company whose shares are quoted on a prescribed financial market) and the other is a shareholder in the body corporate; or

1 is a body corporate whose shares are quoted on a prescribed financial market and the other is a substantial shareholder (within the meaning of the Corporations

Act 2001 of the Commonwealth) in the body corporate; or

1 has a right to participate (otherwise than as a shareholder in a body corporate) in income or profits derived from a business conducted by the other; or

1 is in a position to exercise control or significant influence over the conduct of the other.

For the purposes of subsection (1)—

domestic partner means a person who is a domestic partner within the meaning of the

Family

Relationships Act 1975, whether declared as such under that Act or not;

prescribed financial market means a prescribed financial market within the meaning of section 9 of the Corporations

Act 2001 of the Commonwealth;

spouse—a person is the spouse of another if they are legally married.

Subject to this section, if a dealer sells a second-hand vehicle to a credit provider on the understanding that the vehicle will be sold or let on hire to a third person and it is sold or let on hire to the third person, this Act applies as if the dealer had sold the vehicle to the third person.

Section 17¹ and Part 3 Division

1 Subdivision 3 do not apply to such a sale by a dealer.

Note—

1 Section 17 sets out the requirements for a contract for the sale of a second-hand vehicle by a dealer.

The provisions of this Act are in addition to and do not derogate from the provisions of any other Act.

The provisions of this Act do not limit or derogate from any civil remedy at law or in equity.

The

Commissioner is responsible, subject to the control and directions of the Minister, for the administration of this Act.

A person must not carry on business, or hold himself or herself out, as a dealer unless licensed under this Act.

Maximum penalty:

for an offence committed by an individual—

for a first or second offence—$150 000; or

for a third or subsequent offence—$250 000 or 2 years imprisonment or both; or

for an offence committed by a body corporate—$500 000.

This section does not apply to—

a person whose principal business is that of a credit provider—

whose business as a dealer is incidental to the credit business; and

who, in carrying on business as a dealer, observes any requirements imposed by regulation for the purposes of this paragraph; or

an auctioneer who sells second-hand vehicles on behalf of other persons—

by auction; or

by sales negotiated immediately after conducting auctions for the sale of the vehicles, and who does not otherwise carry on the business of buying or selling second-hand vehicles; or

the

Crown.

An application for a licence must—

be made to the Commissioner in the manner and form approved by the

Commissioner; and

be accompanied by the fee fixed by regulation.

An applicant for a licence must provide the Commissioner with such evidence as the Commissioner thinks appropriate as to the identity, age and address of the applicant and any other information required by the Commissioner for the purposes of determining the application.

If an applicant for a licence has previously failed to pay a fee, penalty or contribution that became payable under this Act, the

Commissioner may require the applicant to pay the whole or a specified part of the fee, penalty or contribution (as the case may be).

The

Commissioner may, by notice in writing, require an applicant for a licence, within a time fixed by the notice (which may not be less than 28 days after service of the notice), to comply with any requirement under this section to the Commissioner's satisfaction.

If the applicant fails to comply with the notice under subsection (4), the Commissioner may, without further notice, refuse the application but keep the fee that accompanied the application.

A natural person is entitled to be licensed as a dealer if the person—

is of or above the age of 18 years; and

has not—

been convicted of an indictable offence of dishonesty; or

during the period of 10 years preceding the application for a licence, been convicted of a summary offence of dishonesty; and

is not suspended or disqualified from practising or carrying on an occupation, trade or business under a law of this State, the

Commonwealth, another State or a Territory of the Commonwealth; and

is not an insolvent under administration within the meaning of the

Corporations

Act 2001 of the Commonwealth; and

has not, during the period of five years preceding the application for the licence, been a director of a body corporate wound up for the benefit of creditors—

when the body was being so wound up; or

within the period of six months preceding the commencement of the winding up; and

is a fit and proper person to be the holder of a licence.

A body corporate is entitled to be licensed as a dealer if—

the body corporate—

is not suspended or disqualified from practising or carrying on an occupation, trade or business under a law of this State, the

Commonwealth, another State or a Territory of the Commonwealth; and

is not being wound up and is not under official management or in receivership; and

no director of the body—

has—

been convicted of an indictable offence of dishonesty; or

during the period of 10 years preceding the application for a licence, been convicted of a summary offence of dishonesty; or

is suspended or disqualified from practising or carrying on an occupation, trade or business under a law of this State, the

Commonwealth, another State or a Territory of the Commonwealth; or

has, during the period of five years preceding the application for the licence, been a director of a body corporate wound up for the benefit of creditors—

when the body was being so wound up; or

within the period of six months preceding the commencement of the winding up; and

each director of the body is a fit and proper person to be the director of a body that is the holder of a licence.

An applicant for a licence may apply to the Tribunal under section 34 of the South

Australian Civil and Administrative Tribunal Act 2013 for review of a decision of the Commissioner refusing the application.

Subject to subsection (4), an application for review must be made within 1 month of the making of the Commissioner's decision.

The

Commissioner must, if so required by the applicant, state in writing the reasons for the Commissioner's decision to refuse the application.

If the reasons of the Commissioner are not given in writing at the time of making the decision and the applicant (within one month of the making of the decision) requires the Commissioner to state the reasons in writing, the time for making an application for review runs from the time at which the applicant receives the written statement of those reasons.

A licence remains in force (except for any period for which it is suspended) until—

the licence is surrendered or cancelled; or

the licensed dealer dies or, in the case of a licensed body corporate, is dissolved.

A licensed dealer must, each year not later than the date fixed by regulation—

pay to the Commissioner the fee fixed by regulation; and

lodge with the Commissioner a return in the manner and form required by the Commissioner.

If a licensed dealer fails to pay the annual fee or lodge the annual return in accordance with subsection (2), the Commissioner may, by notice in writing, require the dealer to make good the default.

If the dealer fails to comply with the notice within 28 days after service of the notice, the dealer's licence is cancelled.

The

Commissioner must notify the dealer in writing of the cancellation of the dealer's licence.

A licensed dealer may surrender the licence.

In this section—

licensed dealer includes a licensed dealer whose licence has been suspended.

A person must, at all times when carrying on business as a dealer, be insured in accordance with the regulations.

A dealer's licence is suspended for any period for which the dealer is not insured as required under subsection (1).