1Purpose
The purpose of this Act is to provide for the regulation of motor car traders and to ensure that licensing is carried out efficiently and equitably and that the rights of those who deal with motor car traders are adequately protected.
Parliamentary material from legislation.vic.gov.au and the Parliament of Victoria. Links open the official source in a new tab.
The purpose of this Act is to provide for the regulation of motor car traders and to ensure that licensing is carried out efficiently and equitably and that the rights of those who deal with motor car traders are adequately protected.
This Act comes into operation on a day or days to be proclaimed.
In this Act—
S. 3(1) def. of Authority substituted by No. 52/1998 s. 140(a).
Authority means the Business Licensing Authority established under the Business Licensing Authority Act 1998;
S. 3(1) def. of Chairperson inserted by No. 6/1989 s. 12(a), substituted by Nos 52/1998 s. 140(b), 12/2015 s. 11.
Chairperson means the Chairperson of the Committee and includes the Deputy Chairperson when exercising the powers and performing the functions of the Chairperson pursuant to section 61(5);
collateral credit agreement means an agreement—
for the provision of finance for the purposes of the sale of a motor car; and
that is arranged or procured by the vendor, or a motor car trader who acted on behalf of the vendor in the making of the sale;
S. 3(1) def. of commercial vehicle substituted by No. 74/1996 s. 3(1)(a).
commercial vehicle means—
in relation to a motor car that was manufactured in, or imported into, Australia on or after 1 July 1988, a car—
that is of a type that is classified as a goods carrying vehicle by the Department of Transport of the Commonwealth (or by any successor of that Department); and
that has a vehicle category code of MD, ME, NA, NB or NC (or any other code specified by the regulations for the purposes of this definition) stamped on its compliance plate (regardless of whether that code appears by itself or in combination with one or more numbers);
in relation to a motor car that was manufactured in, or imported into, Australia before 1 July 1988, a car constructed or adapted solely or mainly for—
the carriage of goods; or
the carriage of more than 10 passengers; or
industrial or agricultural use—
and includes a car with a carrying capacity of 1200 kg or more, but does not include a car of a type commonly called a panel van, a station wagon or a utility;
S. 3(1) def. of Committee amended by No. 4/2008 s. 5(1).
Committee means the Motor Car Traders Claims Committee established under section 57;
S. 3(1) def. of Consumer Act inserted by No. 35/2000 s. 47(a), amended by No. 21/2012 s. 239(Sch. 6 item 28.1).
Consumer Act has the same meaning as it has in the Australian Consumer Law and Fair Trading Act 2012;
S. 3(1) def. of Credit Tribunal inserted by No. 4/1989 s. 8(4)(a), repealed by No. 52/1998 s. 140(c).
* * * * *
S. 3(1) def. of Deputy Chairperson inserted by No. 6/1989 s. 12(b), repealed by No. 52/1998 s. 140(d).
* * * * *
S. 3(1) def. of determination inserted by No. 6/1989 s. 12(b).
determination in relation to the Authority or the Committee includes order, direction, decision or declaration;
S. 3(1) def. of director inserted by No. 74/1996 s. 3(1)(b), amended by No. 44/2001 s. 3(Sch. item 84.1(a)).
director, in relation to a body corporate, has the same meaning as in section 9 of the Corporations Act;
S. 3(1) def. of Director substituted by Nos 52/1998 s. 140(e), 17/1999 s. 10(a), amended by No. 21/2012 s. 239(Sch. 6 item 28.2).
Director means the Director within the meaning of the Australian Consumer Law and Fair Trading Act 2012;
S. 3(1) def. of domestic partner inserted by No. 27/2001 s. 8(Sch. 6 item 3.1), substituted by No. 12/2008 s. 73(1)(Sch. 1 item 41.1).
domestic partner of a person means—
a person who is in a registered relationship with the person; or
an adult person to whom the person is not married but with whom the person is in a relationship as a couple where one or each of them provides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether or not they are living under the same roof, but does not include a person who provides domestic support and personal care to the person—
for fee or reward; or
on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation);
exempt vehicle means a vehicle of a kind for the time being declared by proclamation of the Governor in Council under subsection (2) to be an exempt vehicle for the purposes of this Act;
S. 3(1) def. of externally-administered body corporate inserted by No. 101/1998 s. 8(1)(a) (as amended by No. 74/2000 s. 3(Sch. 1 item 70)), amended by No. 44/2001 s. 3(Sch. item 84.1(a)).
externally-administered body corporate has the same meaning as in the Corporations Act;
finance lease means a finance lease within the meaning of subsection (4);
S. 3(1) def. of financial institution inserted by No. 17/1999 s. 10(b).
financial institution means—
an authorised deposit-taking institution within the meaning of the Banking Act 1959 of the Commonwealth; or
a body approved by the Governor in Council by order published in the Government Gazette;
financier means a person whose ordinary business is not that of buying selling or exchanging motor cars, but who carries on that business for one or more of the following purposes—
selling motor cars on instalment terms;
letting or hiring motor cars under hire-purchase agreements;
taking or enforcing securities over motor cars;
letting or hiring motor cars with or without granting any right to purchase them;
disposing of motor cars acquired by the person in connection with any of the purposes referred to in paragraph (a), (b), (c) or (d);
Fund means the Motor Car Traders' Guarantee Fund established under section 74;
hire-purchase agreement in relation to a motor car, includes a letting of the motor car with an option to purchase and an agreement for the purchase of a motor car by instalments (whether the agreement describes the instalments as rent or hire or otherwise), but does not include an agreement under which the property in the motor car passes at the time of the agreement or at any time before delivery of the motor car;
S. 3(1) def. of insolvent under administration inserted by No. 74/1996 s. 3(1)(c), substituted by No. 101/1998 s. 8(1)(b) (as amended by No. 74/2000 s. 3(Sch. 1 item 70)), repealed by No. 4/2008 s. 5(2).
* * * * *
S. 3(1) def. of inspector inserted by No. 17/1999 s. 10(b), amended by No. 21/2012 s. 239(Sch. 6 item 28.3).
inspector means an inspector appointed under the Australian Consumer Law and Fair Trading Act 2012;
S. 3(1) def. of licence inserted by No. 74/1996 s. 3(1)(c).
licence means a motor car trader's licence;
S. 3(1) def. of licensed auctioneer inserted by No. 74/1996 s. 3(1)(c), repealed by No. 84/2001 s. 9(1).
* * * * *
licensed motor car trader or licensee means a person holding a licence under this Act;
manufacturer means a person who carries on the business of manufacturing or assembling motor cars;
motor car means a motor vehicle within the meaning of the Road Safety Act 1986 (whether or not in working condition or complete) but does not include—
an engine constructed for use as a motor tractor; or
a motor vehicle so constructed that its engine is used to drive or operate an agricultural implement forming an integral part of the motor vehicle; or
an exempt vehicle; or
a vehicle that is not, and is not intended to be, used on a highway;
motor car trader means a person who otherwise than in the capacity of an employee carries on the business (whether or not that person carries on any other business) of trading in motor cars or holds out in any way as carrying on the business of trading in motor cars;
S. 3(1) def. of occupier inserted by No. 17/1999 s. 10(b).
occupier in relation to a premises, means a person who appears to be of or over 16 years of age and who appears to be in control of the premises;
S. 3(1) def. of OFTBA Act inserted by No. 17/1999 s. 10(b), repealed by No. 35/2000 s. 47(b).
* * * * *
S. 3(1) def. of owner amended by No. 63/2010 s. 76(1).
owner (except in the definition of security interest) in relation to a motor car, includes any person who is the sole owner joint owner or part owner thereof and any person who has the possession and use thereof under or subject to a hire-purchase agreement or a goods mortgage or like instrument, but does not include any person in whom the property in the motor car or any absolute or conditional right or licence to take possession of the motor car is vested under or subject to a hire-purchase agreement or a goods mortgage or like instrument but who has not for the time being the possession and use thereof;
S. 3(1) def. of police officer inserted by No. 37/2014 s. 10(Sch. 114.1).
police officer has the same meaning as in the Victoria Police Act 2013;
S. 3(1) def. of prescribed inserted by No. 74/1996 s. 3(1)(d).
prescribed means prescribed by this Act or the regulations;
S. 3(1) def. of public auction inserted by No. 74/1996 s. 3(1)(d).
public auction means an auction at which people other than licensed motor car traders may attend and bid;
S. 3(1) def. of record inserted by No. 6/1989 s. 12(c).
record includes any book, account, document, paper or other source of information compiled, recorded, stored in written form, or on microfilm, or by electronic process, or in any other manner or by any other means;
S. 3(1) def. of Registrar substituted by No. 52/1998 s. 140(f).
Registrar means the Registrar of the Authority appointed under the Business Licensing Authority Act 1998;
S. 3(1) def. of related company substituted by No. 44/2001 s. 3(Sch. item 84.1(b)).
related company, in relation to a body corporate, means a body corporate that is a related body corporate (within the meaning of the Corporations Act) of that body corporate;
security interest in relation to a motor car means an interest in or a power over the motor car (whether arising by or pursuant to an instrument or transaction) which secures payment of a debt or other pecuniary obligation or the performance of any other obligation and includes any interest in or power over goods of a lessor, owner or other supplier of goods, but does not include a possessory lien or a pledge;
S. 3(1) def. of serious offence inserted by No. 74/1996 s. 3(1)(e).
serious offence means an offence involving fraud, dishonesty, drug trafficking or violence punishable by imprisonment for 3 months or more;
special trader means a financier or manufacturer or a related company of a financier or manufacturer being a body corporate;
S. 3(1) def. of spouse inserted by No. 27/2001 s. 8(Sch. 6 item 3.1).
spouse of a person means a person to whom the person is married;
trading in motor cars means buying selling or exchanging motor cars, whether as principal or agent, and offering to buy sell or exchange motor cars, whether as principal or agent, and includes an advertisement or invitation to treat but does not include an exempt transaction under subsection (3);
this Act includes the regulations;
S. 3(1) def. of Tribunal inserted by No. 52/1998 s. 140(g).
Tribunal means Victorian Civil and Administrative Tribunal established by the Victorian Civil and Administrative Tribunal Act 1998;
used motor car includes a motor car that has, at any time before being offered or displayed for sale, been registered under the Road Safety Act 1986 or the Motor Car Act 1958 or under any Act or law of a place outside Victoria which contains provisions corresponding to the provisions of the Road Safety Act 1986 for registration of motor cars.
The Governor in Council may by proclamation published in the Government Gazette declare any kind of motor car to be an exempt vehicle for the purposes of this Act.
For the purposes of the definition of trading in motor cars the following are exempt transactions—
buying, selling or exchanging motor cars or offering to buy sell or exchange motor cars by any person from to or with—
licensed motor car traders;
special traders; or
employees of the person or, where the person is a body corporate, of a related company of the person; or
selling or offering to sell by a financier by public auction or public tender motor cars—
that are returned to the financier by persons (not being motor car traders) who have entered into any contracts or agreements with the financier relating to them; or
of which the financier has taken possession in the exercise of any rights conferred by contracts or agreements made between the financier and the persons (not being motor car traders) formerly in possession of them; or
selling or offering to sell motor cars by a financier by private treaty to purchasers introduced to the financier by persons from whom the motor cars have been repossessed; or
selling or offering to sell motor cars by any person to persons to whom the motor cars have been let or hired by the person for a continuous period of at least three months immediately before the sale or offer to sell in each case; or
buying or selling or offering to buy or sell at a public auction motor cars—
S. 3(3)(e)(i) substituted by No. 74/1996 s. 3(2).
whose last owner or user was a government department or a public statutory authority; or
S. 3(3)(e)(ii) amended by Nos 74/1996 s. 55(1)(a), 44/2001 s. 3(Sch. item 84.2).
owned by a company (not being a licensed motor car trader) which has been wound up, where the sale or offer to sell is effected by a liquidator pursuant to a power conferred on her or him by the Corporations Act or by an Order of the Supreme Court of Victoria.
For the purposes of this Act, a reference to a finance lease is a reference to a contract for the hiring of a motor car where, before the contract is made, the owner acts in such a manner that the hirer ought reasonably to infer that the owner is willing, whether during or within a reasonable time after the period during which the contract is in force, to sell the motor car to the hirer.
S. 3(5) inserted by No. 74/1996 s. 3(3).
A reference to a person who is disqualified from holding a licence includes a reference to a person who is disqualified from holding a licence to act, or from acting, as a motor car trader in any State or Territory (regardless of whether or not motor car traders are referred to by that name in the relevant jurisdiction).
S. 3(6) inserted by No. 74/1996 s. 3(3).
A reference to a conviction for an offence includes a reference to—
a finding of guilt in relation to the offence; and
a conviction or finding of guilt in Australia or elsewhere.
S. 3(7) inserted by No. 74/1996 s. 3(3).
A reference to a date, code or other marking on a compliance plate, metal plate or metal component only refers to a date, code or marking stamped, engraved or otherwise placed on the plate or component in accordance with a law of the Commonwealth or of a State or Territory.
S. 3(8) inserted by No. 74/1996 s. 3(3).
A reference to a claim being admitted against the Fund includes a reference to a claim being admitted against the Motor Car Traders' Guarantee Fund established under the Motor Car Traders Act 1973.
S. 3(9) inserted by No. 74/1996 s. 3(3).
A reference to a person includes a reference to a partnership, unless a contrary intention appears.
S. 3(10) inserted by No. 27/2001 s. 8(Sch. 6 item 3.2), substituted by No. 12/2008 s. 73(1)(Sch. 1 item 41.2).
For the purposes of the definition of domestic partner in subsection (1)—
registered relationship has the same meaning as in the Relationships Act 2008; and
in determining whether persons who are not in a registered relationship are domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case; and
a person is not a domestic partner of another person only because they are co-tenants.
For the purposes of this Act, if a motor car is made the subject of a hire-purchase agreement or finance lease it is deemed to be sold to the hirer.
For the purposes of this Act if a motor car trader sells or leases a motor car to a financier, (whether as principal or agent) in the expectation that the financier will sell or lease the motor car to a particular third person and the motor car is sold or leased to that third person, the motor car trader is deemed to have sold or leased the motor car to that third person.
S. 5 repealed by No. 74/1996 s. 51(a).
* * * * *
S. 6 amended by No. 54/1989 s. 35(3), repealed by No. 74/1996 s. 51(a).
* * * * *
Subject to this Act, a person must not carry on a business of trading in motor cars unless that person is the holder of a motor car trader's licence.
If a person is convicted of an offence against subsection (1), the court may, in addition to or substitution for any penalty it may impose, order the person to pay a fine equal to 15 per centum of the sale price of each motor car with respect to which the offence was committed.
S. 7A inserted by No. 74/1996 s. 4.
A person who buys, sells or exchanges, or offers to buy, sell or exchange, 4 or more motor cars in any period of 12 months (whether as a principal or as an agent) is deemed to be a motor car trader carrying on a business of trading in motor cars.
Subsection (1) does not apply if the person can prove that she, he or it did not, in that period, carry on the business of trading in motor cars and did not hold herself, himself or itself out as carrying on the business of trading in motor cars.
In counting the number of motor cars bought, sold or exchanged by a person, any purchase, sale or exchange—
that is an exempt transaction for the purposes of the definition of trading in motor cars is not to be counted;
that is from, to or with a licensed motor car trader is not to be counted.
In counting the number of motor cars offered for purchase, sale or exchange by a person, any offer—
that would result in an exempt transaction for the purposes of the definition of trading in motor cars if it was to be accepted is not to be counted;
that is made to a licensed motor car trader is not to be counted.
S. 7A(5) amended by No. 4/2008 s. 6.
In this section an offer to sell includes an invitation to treat and the publishing (or authorising the publication) of an advertisement (including by means of broadcast or electronic communication).
A person who buys, sells or exchanges less than 4 motor cars in any period of 12 months may still be a motor car trader carrying on a business of trading in motor cars, and nothing in this section is intended to interfere with that possibility.
S. 8(1) amended by No. 52/1998 s. 141(1).
An application for a licence may be made to the Authority by—
a person of or over the age of 18 years;
a partnership; or
a body corporate.
S. 8(2) amended by No. 52/1998 s. 141(2).
The application must be in the form approved by the Authority and must be signed—
if the application is made by a natural person—by that person; or
S. 8(2)(b) amended by No. 8/2003 s. 60(a).
if the application is made by a partnership—by one of the partners who has the authority of the other partners to sign on behalf of those partners; or
S. 8(2)(c) amended by No. 8/2003 s. 60(b).
if the application is made by a body corporate—by a director of the body corporate who has the authority of the other directors to sign on behalf of the body corporate.
S. 8(3) amended by No. 74/1996 s. 51(b).
An application must be accompanied by the prescribed fee for the application and may be accompanied by the first annual fee for the licence.
S. 8(4) repealed by No. 74/1996 s. 51(a).
* * * * *
An application must specify—
the name and address—
if the application is made by a natural person—of that person; or
if the application is made by a partnership—of each partner; or
if the application is made by a body corporate—of each director of the body corporate; and
if the application is made by a body corporate—the date and place of incorporation of the body corporate, its corporate name and address of its registered office; and
the date upon which the applicant intends to commence trading in motor cars; and
the address of the place that, if a licence were granted pursuant to the application, would be the principal place of business of the licensee and the address of each other place at which the licensee proposes to carry on business; and
whether any previous applications for a licence had been made or whether the applicant has been a licensed motor car trader or been employed by a motor car trader; and
the type of trade in motor cars which the applicant proposes to conduct and the financial resources of the applicant to conduct that type of business; and
such other matters as may be prescribed.
Where an application is withdrawn before the Authority commences consideration of the application or an application is refused, the Authority must refund the licence fee that accompanied the application.
S. 10 repealed by No. 74/1996 s. 39(3), new s. 10 inserted by No. 52/1998 s. 142.
If, before a decision is made under section 13 to grant or refuse a licence, a material change occurs in any of the details provided in the application for the licence, the applicant must give the Authority written details of the change as soon as practicable after the applicant becomes aware of the change.
S. 11(1) amended by No. 52/1998 s. 143(1)(2)(a).
Where an application for a licence is made in accordance with section 8, the Authority must, except in the prescribed circumstances, give any details of the application that the Authority considers relevant to the Director and the Chief Commissioner of Police.
S. 11(2) amended by No. 52/1998 s. 143(2)(b).
The Director and the Chief Commissioner of Police, upon receiving details of the application, must make such inquiries in relation to the application as the Director or the Chief Commissioner of Police considers appropriate.
S. 11(3) amended by No. 52/1998 s. 143(1).
The Director and the Chief Commissioner of Police, after receiving the results of the inquiries, must report to the Authority.
S. 11(4) inserted by No. 52/1998 s. 143(3).
A report may include recommendations.
S. 11A inserted by No. 74/1996 s. 5, repealed by No. 52/1998 s. 144, new s. 11A inserted by No. 8/2003 s. 61.
The Authority may require a licensee or an applicant for a motor car trader's licence to provide the Authority, at the time of submitting the application or at any time during the currency of the licence, with any consent required by another person or body to enable the Authority to check or confirm information relevant to the licence or application.
Without limiting subsection (1), consent includes—
the consent of the licensee or the applicant; and
the consent of another person other than the licensee or the applicant; and
if the licensee or applicant is a corporation, the consent of a director of the corporation or a member of the corporation.
The Authority may refuse to consider an application for a licence if the applicant does not provide the Authority with the required consent within 14 days after the requirement is made.
S. 12 amended by No. 74/1996 s. 6(1)(2), substituted by No. 52/1998 s. 145.
In considering an application for a licence, the Authority may—
conduct any inquiries it thinks fit;
require an applicant to provide any further information that the Authority thinks fit in the manner required by the Authority;
seek advice and information on the application from any other person or body or source as it thinks fit.
The Authority may engage or appoint any person or body to assist it in considering an application.
The Authority may refuse to grant a licence to an applicant if the applicant does not provide the further information required within a reasonable time of the requirement being made.
S. 12A inserted by No. 8/2003 s. 62.
Showing the first 12 of 165 provisions. See all provisions