New South Wales: Motor Dealers and Repairers Act 2013 (NSW)

Motor Dealers and Repairers Act 2013 No 107 An Act with respect to the licensing and conduct of motor dealers, motor vehicle repairers, motor vehicle recyclers and motor vehicle repair tradespersons; to repeal the Motor Dealers Act 1974 and the Motor Vehicle Repairs Act 1980; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Motor Dealers and Repairers Act 2013. 2 Commencement (1) This Act commences on a day or days to be appointed by proclamation, except as provided by this section. (2) Part 6 and clause 11 of Schedule 2 commence on the date of assent to this Act. 3 Objects of Act The objects of this Act are as follows— (a) to provide consumer protections and remedies for consumers who purchase motor vehicles from motor dealers or obtain motor vehicle repair services, (b) to establish appropriate standards of conduct and transparency for motor dealers, motor vehicle repairers and motor vehicle recyclers, (c) to provide enforcement mechanisms to prevent misleading or dishonest conduct and illegal dealings with motor vehicles and parts, (d) to provide protection for motor dealers against unfair contract dealings by motor vehicle manufacturers. 4 Definitions (1) In this Act— accessories means additional parts, or fittings, for the purpose of enhancing the comfort, appearance or performance of motor vehicles, including sound and internet devices, navigation devices, air conditioning units and spare wheels and tools usually carried on motor vehicles, but not including parts or fittings prescribed by the regulations for the purposes of this definition. approved means approved by the Secretary. authorised officer—see section 149. business day means a day that is not— (a) a Saturday or Sunday, or (b) a public holiday or bank holiday throughout the State. carrying on a business—see section 7. close associate—see section 8. Compensation Fund means the Motor Dealers and Repairers Compensation Fund established under section 165. credit contract has the same meaning as it has in the National Credit Code. criminal intelligence means information classified by the Commissioner of Police as criminal intelligence within the meaning of the Crimes (Criminal Organisations Control) Act 2012, or declared by the Supreme Court under that Act to be criminal intelligence. current inspection report—see section 56. deal means buy, sell or exchange. dealer guarantee means the obligation imposed by section 68 (1). dealer's notice—see section 62. demonstrator motor vehicle—see section 61. disciplinary action—see section 45 (1). financier means a person (other than a person prescribed by the regulations for the purposes of this definition) who carries on the business of dealing in motor vehicles only in connection with any of the following— (a) the provision of credit (within the meaning of the National Credit Code), whether or not that Code applies to the provision of that credit, (b) the letting of motor vehicles to other persons for periods of 3 months or more without an option to purchase, (c) any other purpose prescribed by the regulations. function includes a power, authority or duty, and exercise a function includes perform a duty. inspection report for a motor vehicle means an inspection report for the motor vehicle issued in accordance with the requirements of Transport for NSW for vehicle registration purposes or a report prescribed by the regulations for the purposes of this definition. licence means the following— (a) a motor dealer's licence, (b) a motor vehicle repairer's licence, (c) a motor vehicle recycler's licence, (d) a tradesperson's certificate. licence holder means a person who is for the time being the holder of a licence. linked credit provider has the same meaning as it has in the National Credit Code. motor dealer—see section 5. motor dealer's licence means a motor dealer's licence in force under this Act. motor vehicle means a vehicle of the following kind that is built to be propelled by a motor that forms part of the vehicle, and includes a trailer— (a) any description of vehicle on wheels, other than a vehicle used on a railway or tramway or an aircraft, (b) any description of tracked vehicle, or any description of vehicle that moves on revolving runners inside endless tracks, that is not used exclusively on a railway or tramway. Note— Section 9 exempts certain motor vehicles from this Act. motor vehicle broker—see section 103. motor vehicle recycler means a person who carries on one or more of the following businesses— (a) buying or obtaining motor vehicles or parts or accessories of motor vehicles and demolishing or dismantling the motor vehicles or parts or accessories, (b) buying and selling major body and mechanical components of motor vehicles, major car accessories and parts or accessories of motor vehicles prescribed by the regulations for the purposes of this definition. motor vehicle recycler's licence means a motor vehicle recycler's licence in force under this Act. motor vehicle repairer—see section 6. motor vehicle repairer's licence means a motor vehicle repairer's licence in force under this Act. motor vehicle stealing offence—see section 25 (6). National Credit Code means the National Credit Code set out in Schedule 1 to the National Consumer Credit Protection Act 2009 of the Commonwealth. notified premises means premises notified to the Secretary under section 20B as premises at which the holder of a licence proposes to carry on a business authorised by the licence. number-plate means a number-plate issued under a law of this State or a law of another State or a Territory. owner of a motor vehicle means a person who— (a) is the sole owner, joint owner or part owner of the motor vehicle, or (b) has possession or use of the motor vehicle under a credit, hire-purchase, lease or other agreement, except an agreement requiring the motor vehicle to be registered in the name of someone else. property includes real and personal property and money. public holiday means a day appointed under the Public Holidays Act 2010 or another Act as a public holiday. registered means registered under a law for the registration of vehicles of this State or another State or a Territory. repair includes examine, detect faults in, adjust, carry out maintenance on, overhaul, replace, alter and paint. repair work—see section 6 (2). second-hand motor cycle means a motor cycle that is a second-hand motor vehicle. second-hand motor vehicle includes a motor vehicle that, at any time before being offered or displayed for sale, or sold, has been registered to a person other than the purchaser, and includes a demonstrator motor vehicle. Secretary means— (a) the Commissioner for Fair Trading within the department in which this Act is administered, or (b) if there is no person employed as Commissioner for Fair Trading—the Secretary of the department in which this Act is administered. towable recreation vehicle means a trailer equipped with living space or sleeping facilities, or both, and includes a caravan, fifth wheeler, pop-top caravan, camper trailer or tent trailer. trade show means an event held at a place where a number of motor dealers, motor vehicle manufacturers or other industry participants display motor vehicles. tradesperson's certificate means a tradesperson's certificate in force under this Act. trailer means a vehicle that— (a) is built to be towed, or is towed, by a motor vehicle, and (b) is not capable of being propelled in the course of normal use on roads without being towed by a motor vehicle, whether or not its movement is aided by some other power source, but does not include a motor vehicle being towed or a trailer having a tare weight of 250 kilograms or less. Transport for NSW means Transport for NSW constituted under the Transport Administration Act 1988. Tribunal means the Civil and Administrative Tribunal. (2) In this Act, a reference to buying a thing includes buying that thing as a principal or agent. (3) Notes included in this Act do not form part of this Act. 5 Motor dealers (1) A motor dealer means a person who carries on the business of dealing in motor vehicles as a retailer or on a wholesale basis. (2) A person who carries on the business of assembling or manufacturing motor vehicles is not a motor dealer merely because the person sells any of those motor vehicles to a motor dealer or a financier. (3) A financier is not a motor dealer. (4) A motor vehicle broker is not a motor dealer. (5) A person does not carry on the business of a motor dealer merely because the person sells a trailer for the conveyance of a boat sold by the person. 6 Motor vehicle repairers (1) In this Act, motor vehicle repairer means a person who carries on the business of carrying out repair work on motor vehicles. (2) In this Act, repair work means work of a class or classes prescribed by the regulations for the purposes of this section. (3) A person is not a motor vehicle repairer if the person carries out repair work only in the course of employment with another person or on the person's own motor vehicle. (4) This Act does not apply to any part of the business of a motor vehicle repairer that involves repairs that are not repair work. 7 Meaning of "carrying on a business" In this Act, a reference to a person carrying on a business includes a reference to the person carrying on the business in partnership or by an employee, contractor, agent or other person. 8 Meaning of "close associate" (1) For the purposes of this Act, a person is a close associate of an applicant for a licence or a licence holder if the person— (a) holds or will hold any relevant financial interest, or is or will be entitled to exercise any relevant power (whether in the person's own right or on behalf of any other person), in the business of the applicant or licence holder that is or will be carried on under the authority of the licence, and by virtue of that interest or power is or will be able (in the opinion of the Secretary) to exercise a significant influence over or with respect to the management or operation of that business, or (b) holds or will hold any relevant position, whether in the person's own right or on behalf of any other person, in the business of the applicant or licence holder that is or will be carried on under the authority of the licence, or (c) is or will be engaged as a contractor or employed in the business of the applicant or licence holder that is or will be carried on under the authority of the licence. (2) For the purposes of this section, a financial institution is not a close associate merely because it has a relevant financial interest in relation to a business. (3) The provisions of this section extend to relevant financial interests and relevant powers even if those interests and powers are not payable, exercisable or otherwise enforceable as a matter of law or equity, but are nevertheless payable, exercisable or otherwise enforceable as a matter of fact. (4) In this section— relevant financial interest in a business means— (a) any share in the capital of the business, or (b) any entitlement to receive any income derived from the business, or to receive any other financial benefit or financial advantage from the carrying on of the business, whether the entitlement arises at law or in equity or otherwise, or (c) any entitlement to receive any rent, profit or other income in connection with the use or occupation of premises on which the business is or is to be carried on (such as, for example, an entitlement of the owner of the premises at which the business is carried on to receive rent as lessor of the premises). relevant position means— (a) the position of director, manager or secretary, or (b) any other position, however designated, if it is an executive position. relevant power means any power, whether exercisable by voting or otherwise and whether exercisable alone or in association with others— (a) to participate in any directorial, managerial or executive decision, or (b) to elect or appoint any person to any relevant position. 9 Motor vehicles exempted from Act This Act does not apply to the following motor vehicles— (a) a crane, hoist or conveyor, (b) an excavator, road grader, road roller, bulldozer or forklift truck or other machinery (other than a tractor), that is not constructed on a chassis of a type normally used in the construction of a truck, (c) a motor vehicle that is constructed or adapted for road construction or maintenance (including cleaning, sweeping or watering). Note— Other motor vehicles, persons or other things may be exempted from provisions of this Act by the regulations (see section 186 (2) (a)). Part 2 Licences Division 1 Offences 10 Definition In this Division— transport service vehicle means a motor vehicle used for the carriage of passengers or goods in connection with a business. 11 Unlicensed motor dealers A person must not carry on, or advertise that the person carries on or is willing to carry on, the business of a motor dealer unless— (a) the person is the holder of a motor dealer's licence, and (b) the business is carried on or proposed to be carried on at a place for which the licence is granted, and (c) the business is carried on or proposed to be carried on in accordance with the licence. Maximum penalty—1,000 penalty units or, in the case of a second or subsequent offence, 1,000 penalty units or imprisonment for 12 months, or both. 12 Unlicensed motor vehicle repairers A person must not carry on, or advertise that the person carries on or is willing to carry on, the business of a motor vehicle repairer unless— (a) the person is the holder of a motor vehicle repairer's licence, and (b) the business is carried on or proposed to be carried on at a place for which the licence is granted, and (c) the business is carried on or proposed to be carried on in accordance with the licence. Maximum penalty—1,000 penalty units or, in the case of a second or subsequent offence, 1,000 penalty units or imprisonment for 12 months, or both. Note— An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 159. 13 Unlicensed motor vehicle recyclers A person must not carry on, or advertise that the person carries on or is willing to carry on, the business of a motor vehicle recycler unless— (a) the person is the holder of a motor vehicle recycler's licence, and (b) the business is carried on or proposed to be carried on at a place for which the licence is granted, and (c) the business is carried on or proposed to be carried on in accordance with the licence. Maximum penalty—1,000 penalty units or, in the case of a second or subsequent offence, 1,000 penalty units or imprisonment for 12 months, or both. 14 No offence if partner holds licence A person is not guilty of an offence under this Division relating to the carrying on of a business if the person carries on a business in partnership with another person and the other person complies with the requirements of this Division for that business. 15 Repair work must be done by licensed motor vehicle repairers (1) A motor vehicle repairer must not, in the course of business, enter into an agreement for any repair work to be done by another person who is not the holder of a motor vehicle repairer's licence. Maximum penalty—50 penalty units. Note— An offence against subsection (1) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 159. (1A) The owner of a transport service vehicle or other person having control of a transport service vehicle must not, in the course of business, enter into an agreement for any repair work to be done on the vehicle by a person who is not the holder of a motor vehicle repairer's licence. Maximum penalty— (a) for an individual—50 penalty units, or (b) for a body corporate—250 penalty units. Note— An offence against subsection (1A) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 159. (2) An insurer of a motor vehicle must not— (a) enter into an agreement, or require the owner of the motor vehicle to enter into an agreement, for any repair work to be done on the motor vehicle by any person who does not hold a motor vehicle repairer's licence, or (b) specify in the contract of insurance for the motor vehicle a motor vehicle repairer who does not hold a motor vehicle repairer's licence. Maximum penalty—50 penalty units. (3) This section does not apply to a contract of employment or other agreement for the provision of services as a contractor. 16 Repair work must be done by holder of tradesperson's certificate (1) A motor vehicle repairer or a motor dealer must not permit an employee of the person to do any repair work unless the person doing the work— (a) holds a tradesperson's certificate for a class of repair work that includes that work, or (b) is doing the work in the course of an apprenticeship or traineeship under the supervision of a person who holds a tradesperson's certificate for a class of repair work that includes that work, or (c) is doing the work in other circumstances prescribed by the regulations for the purposes of this section. Maximum penalty—50 penalty units. Note— An offence against subsection (1) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 159. (1A) The owner of a transport service vehicle or other person having control of a transport service vehicle must not permit an employee of the owner or person to do repair work on the vehicle unless the person doing the work— (a) holds a tradesperson's certificate for a class of repair work that includes that work, or (b) is doing the work in the course of an apprenticeship or traineeship under the supervision of a person who holds a tradesperson's certificate for a class of repair work that includes that work, or (c) is doing the work in other circumstances prescribed by the regulations for the purposes of this section. Maximum penalty— (a) for an individual—50 penalty units, or (b) for a body corporate—250 penalty units. Note— An offence against subsection (1A) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 159. (2) A motor vehicle repairer or a motor dealer must not personally do any repair work in the course of the repairer's or dealer's business unless the repairer or dealer holds a tradesperson's certificate for a class of repair work that includes that work. Maximum penalty—50 penalty units. 17 Holding out (1) A person must not hold himself or herself out as the holder of a licence if the person is not the holder of such a licence. (2) A person must not hold himself or herself out as a person who is authorised to do a class of repair work if the person is not the holder of a tradesperson's certificate authorising that class of repair work. Maximum penalty—50 penalty units. 18 Transfer or loan of tradesperson's certificate (1) The holder of a tradesperson's certificate must not— (a) transfer, attempt to transfer or lend the certificate to another person, or (b) allow the use of the certificate by another person. Maximum penalty—50 penalty units. (2) A person must not— (a) attempt to obtain the transfer to the person of a tradesperson's certificate, or (b) attempt to borrow, or borrow or use, a tradesperson's certificate of which the person is not the holder. Maximum penalty—20 penalty units. 19 Production of licences and certificates (1) The holder of a motor dealer's licence, motor vehicle repairer's licence or motor vehicle recycler's licence must not, without reasonable excuse, fail to comply with a request to produce the licence to an authorised officer. (2) The holder of a tradesperson's certificate must not, without reasonable excuse, at any place where the holder does repair work, fail to comply with a request to produce the certificate to an authorised officer. Maximum penalty—20 penalty units. Division 2 Licences generally 20 Types of licences The Secretary may grant the following licences— (a) a motor dealer's licence, (b) a motor vehicle repairer's licence, (c) a motor vehicle recycler's licence, (d) a tradesperson's certificate. 20A Specialised authority (1) The Secretary may grant a specialised authority to authorise the holder of the authority to carry out work of a class prescribed by the regulations. (2) The regulations may exclude work of a kind described in the regulations from the class of work that may be carried out by the holder of a specialised authority. (3) For the purposes of this Act, a specialised authority is a type of tradesperson's certificate. 20B Application for licence to carry on business at premises (1) This section applies to the following— (a) motor dealers' licences, (b) motor vehicle repairers' licences, (c) motor vehicle recyclers' licences. (2) An application for a licence to which this section applies must include the following— (a) the address of premises the applicant intends to use for the purpose of carrying on the business to be authorised by the licence, (b) in the case of an application for a motor vehicle repairer's licence where the applicant intends to carry on the business only from a vehicle— (i) the address of the premises at which the vehicle is to be kept, and (ii) the registration details of that vehicle, (c) if a planning approval is required to use the premises for that purpose—information demonstrating, to the satisfaction of the Secretary, that the required planning approval is in force. (3) The holder of a licence to which this section applies must notify the Secretary in the approved form, at least 20 business days before using the relevant premises or vehicle, of any changes to the details provided in accordance with subsection (2). (4) The holder of a licence must notify the Secretary in the approved form, within 20 business days after the relevant event, if— (a) the holder ceases to carry on a business authorised by the licence at notified premises, or (b) the holder does not intend to carry on a business authorised by the licence at notified premises. Maximum penalty—20 penalty units. (5) Nothing in this section requires the holder of a licence to notify the Secretary of an intention to carry on a business authorised by the licence at a trade show. Note— It is an offence under the Crimes Act 1900, Part 5A to knowingly provide false or misleading information or to knowingly produce documents that are false or misleading in purported compliance with a law of the State. 21 Application to licences of Licensing and Registration (Uniform Procedures) Act 2002 (1) Part 2 (other than section 10) of the Licensing and Registration (Uniform Procedures) Act 2002 (the Licensing Act) applies to and in respect of a licence, subject to the modifications and limitations prescribed by this Act or the regulations. (2) A licence may be amended under the Licensing Act. (3) (Repealed) (4) The regulations may make provision for or with respect to such matters concerning a licence as are relevant to Part 2 of the Licensing Act. Note— The Licensing Act sets out procedures for the making of applications for licences and the granting, renewal and replacement of licences. It also provides for the provision of further information by applicants for licences, the withdrawal of applications and the grant and refusal of applications. 21A (Repealed) 22 Multiple licences A person may hold 2 or more different licences under this Act. 22A Revocation of licences by Secretary (1) The Secretary may, by notice in writing given to a licence holder (a cancellation notice), cancel the licence if the Secretary is satisfied that— (a) the licence was granted, renewed or restored because of a misrepresentation made by the holder, or (b) the licence was granted, renewed or restored in error (whether as a result of a misrepresentation by the holder or not). (2) A cancellation notice takes effect on the day that it is given to the licence holder or on a later day specified in the notice. (3) The Secretary may, by further notice given to the licence holder (a restoration notice), restore a licence cancelled under this section if the Secretary is satisfied that— (a) the licence holder acted in good faith, or (b) the error has been rectified, or (c) the licence should be restored. (4) A restoration notice takes effect on the day that it is given to the licence holder, or on a later day specified in the notice. Division 3 Grant and refusal of licence applications 23 Investigation of applications (1) The Secretary may make any inquiries that the Secretary considers necessary in relation to an application for a licence. (2) The Commissioner of Police must, at the request of the Secretary, investigate an application for a licence and, as soon as practicable after completing the investigation, report to the Secretary on the investigation. 24 Application fees An application for a licence is to be accompanied by the fee prescribed by the regulations for the application. 25 Grounds for refusal—licences other than tradespersons' certificates (1) This section applies to motor dealers' licences, motor vehicle repairers' licences and motor vehicle recyclers' licences. (2) The Secretary must not grant a licence to an individual if the Secretary is satisfied of any of the following— (a) that the applicant is not over the age of 18, (b) that the applicant is not a fit and proper person to hold a licence, (c) that the applicant is a controlled member of a declared organisation, Note— Controlled members are prohibited from applying for licences—see section 27 of the Crimes (Criminal Organisations Control) Act 2012. (d) that the applicant is an undischarged bankrupt, (e) that the applicant does not have the qualifications, if any, prescribed by the regulations for the purposes of the licence concerned, (f) that the applicant has (as an adult) been found guilty, within the preceding 10 years, of a motor vehicle stealing offence. (3) The Secretary must not grant a licence to an applicant that is a body corporate if the Secretary is satisfied of any of the following— (a) a director or person involved in the management of the body corporate, or any other person who appears to the Secretary to have control or substantial control of the body corporate, would, if the director or person applied for the licence as an individual, be prohibited by this section from being granted the licence, (b) the officers of the body corporate do not have the qualifications, if any, prescribed by the regulations for the purposes of the licence concerned, (c) the reputation of the body corporate is such that it is not a fit and proper person to hold a licence. (4) The Secretary must not grant a licence to any applicant, if the Secretary is satisfied of any of the following— (a) that the applicant is not likely to carry on the business for which the licence is sought honestly and fairly, (b) that the carrying on of the business at any place to which the application for the licence relates is unlawful for any reason. (5) The Secretary may refuse to grant a licence to an applicant if the Secretary is satisfied of any of the following— (a) that a close associate of the applicant is not a fit and proper person to hold a licence, (b) that there is another licence in force in relation to the whole or a part of a place of business to which the application for the licence relates. (6) In this Act— motor vehicle stealing offence means an offence of, or relating to— (a) stealing a motor vehicle (within the meaning of Division 5A of Part 4 of the Crimes Act 1900), or (b) 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. Note— Section 18 of the Licensing and Registration (Uniform Procedures) Act 2002 contains the power to determine a licence application. 26 Mandatory grounds for refusal—tradespersons' certificates (1) The Secretary must not grant a tradesperson's certificate to an individual if the Secretary is satisfied of any of the following— (a) that the applicant is not a fit and proper person to hold a licence, (b) that the applicant does not have the required qualifications or experience for the class of repair work for which the certificate is sought, (c) that the applicant is an apprentice or trainee. (2) The required qualifications for a class of repair work are the qualifications or experience prescribed by the regulations for that class of repair work. 27 Criteria for being fit and proper person to hold a licence (1) In determining whether a person is a fit and proper person to hold a motor dealer's licence, a motor vehicle repairer's licence or a motor vehicle recycler's licence, the Secretary may have regard to any of the following— (a) whether the applicant has, in the preceding 10 years, been found guilty of an offence involving fraud or dishonesty (whether in this State or elsewhere), (b) whether proceedings for such an offence have been commenced against the applicant but have not been finally determined, (c) whether the applicant has been convicted of an offence against this Act or the regulations or another Act administered by the Minister, (d) whether the applicant has failed to pay any contribution or other payment required to be paid by the applicant to the Compensation Fund under this Act. (2) An applicant is not a fit and proper person to be the holder of any licence if the Secretary has reasonable grounds to believe from information provided by the Commissioner of Police in relation to the applicant that— (a) the applicant 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 applicant'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 applicant is granted a licence. (3) The Secretary is not, under this or any other Act or law, required to give any reasons for refusing an application for a licence or taking disciplinary action against a person because of subsection (2) to the extent that the giving of those reasons would disclose any criminal intelligence. (4) This section does not limit the grounds on which the Secretary may determine that a person is not a fit and proper person to hold a licence. Division 4 Terms of licences 28–30 (Repealed) 31 Tradesperson's certificate A tradesperson's certificate is to specify the class or classes of repair work authorised by the certificate. 32 Conditions of licences (1) A licence is subject to any conditions imposed by the Secretary (when the licence is granted or at any later time) or that are prescribed by the regulations. (1A) Without limiting subsection (1), the Secretary may impose a condition that the holder of a licence carry on a business authorised by the licence only at premises specified by the Secretary in writing to the licence holder. (2) The Secretary may at any time, on the Secretary's own motion or on the application of the holder of a licence, by notice in writing to the holder, revoke or vary a condition of the licence imposed by the Secretary. 33 Duration of licence (1) An application for a licence or for renewal of a licence is to nominate one of the following terms of duration for the licence (the nominated term)— (a) 1 year, (b) 3 years, (c) 5 years. (2) The Secretary may grant or renew a licence for the nominated term or a shorter term than the nominated term if satisfied that it is in the public interest to do so. (3) If an application for renewal of a licence has been made but the application is not finally determined by the Secretary before the expiry of the licence, the licence (if not suspended or sooner cancelled) continues in force until the application is finally determined. (4) If a licence is granted or renewed for a shorter term than the nominated term, the Secretary is to refund to the applicant the difference between the fee for the nominated term and the fee for the term that was granted. (5) The suspension of a licence does not affect the term of the licence. (6) This section does not affect the term of any licence granted under this Act and in force immediately before the substitution of this section by the Fair Trading Legislation Amendment (Reform) Act 2018. 33A Time period for restoration of licences (1) An application for the restoration of a licence must be made— (a) within 3 months of the expiry of the licence, or (b) within the further period determined by the Secretary on the application of the person seeking the restoration of the licence. (2) Without limiting subsection (1) (b), the Secretary may extend the period within which an application for the restoration of a licence may be made if the Secretary is satisfied that— (a) in a case where the applicant failed to apply for renewal before the licence expired—the failure to apply for renewal of the licence before it expired was due to inadvertence, or (b) it is just and equitable to restore the licence. (3) A licence that has been cancelled must not be restored. (4) An application for the restoration of a licence must— (a) be made in the approved form (if any), and (b) be accompanied by the fee prescribed by the regulations, and (c) nominate a term of duration for the licence. (5) A licence restored at any time is taken to have been restored from the day on which the licence expired. (6) Subject to this section, this Act applies to an application for the restoration of a licence in the same way as it applies to an application for a licence. 34 Amendment of licences (1) An application to amend a licence may seek to add or remove a class of repair work from a tradesperson's certificate. (2) An application to amend a licence is to be accompanied by the fee, if any, prescribed by the regulations. (3) The Secretary may refuse to grant an application to amend a licence on any ground on which the Secretary may refuse to grant a licence in the terms of the proposed amended licence. 35 Surrender of licences (1) A licence holder may surrender the licence by giving it to the Secretary with a notice in writing that the licence is surrendered. (2) If a licence that is to be surrendered has been lost or destroyed, it is sufficient for this section if the notice in writing sets out that fact. (3) The surrender of a licence by the licence holder after the issue of a show cause notice under Division 2 of Part 3 does not affect the taking of any disciplinary action by the Secretary under that Division. For that purpose, the licence is taken not to have been surrendered. 36 Duplicate licences The Secretary may issue a duplicate licence on payment of the fee prescribed by the regulations if the Secretary is satisfied that the licence has been lost or destroyed. 37 Cancellation of licence (1) The Secretary must cancel a person's licence if the Secretary would be required under section 25 to refuse an application for a licence by the person. (2) If the Secretary cancels a person's licence under subsection (1), the Secretary must, by written notice given to the person, inform the person the licence has been cancelled under this section. (3) The notice must— (a) set out the reasons for the cancellation, and (b) specify the date, not earlier than the date the notice is given to the person, on which the cancellation takes effect. (4) The cancellation takes effect on the date specified in the notice. Part 3 Disciplinary provisions Division 1 Grounds for disciplinary action 38 Grounds for disciplinary action—all licences (1) The grounds on which disciplinary action may be taken against a licence holder or a former licence holder are as follows— (a) the person has contravened, or the Secretary has reasonable grounds to believe that the person is likely to contravene, a provision of this Act or the regulations or of any other Act administered by the Minister, (b) the person has contravened, or the Secretary has reasonable grounds to believe that the person is likely to contravene, a condition of the person's licence, (c) the person is not a fit and proper person to hold a licence, (d) if the person were not a licence holder, the Secretary would be required by this Act to refuse an application by the person for the licence, (e) the Secretary considers, in the light of evidence available to the Secretary, that the person is probably receiving or dealing in stolen goods, (f) the licence may have been improperly obtained or, when it was granted, there may have been grounds for refusing to grant it. (2) Disciplinary action must not be commenced against a former licence holder more than 12 months after the person last ceased to be a licence holder. 39 Additional grounds for disciplinary action—motor dealers' licences, motor vehicle repairers' licences and motor vehicle recyclers' licences Disciplinary action may also be taken against the holder or a former holder of a motor dealer's licence, a motor vehicle repairer's licence or a motor vehicle recycler's licence on the following grounds— (a) the business authorised by the licence has not been conducted in accordance with standards for the supply of goods and services established under the Australian Consumer Law (NSW), (b) the business authorised by the licence has been carried on in a dishonest or unfair manner, (c) the person has not, for a period of 1 month or more, carried on business at notified premises, (d) in the case of the holder or the former holder of a motor dealer's licence or motor vehicle recycler's licence, the person has contravened section 73 (1) or (3) of the Road Transport Act 2013 or the statutory rules made under Part 4.5 of that Act, (e) in the case of the holder or the former holder of a motor vehicle repairer's licence, the person has contravened, or the Secretary has reasonable grounds to believe that the person is likely to contravene, section 98 of the Road Transport Act 2013 or the statutory rules made under Part 4.5 of that Act, (f) in the case of the holder or the former holder of a motor dealer's licence, there has been undue delay, or unreasonable refusal, on the part of the person in paying, applying or accounting for trust money as required by or under Division 6 of Part 4, (g) in the case of the holder or the former holder of a motor dealer's licence, there are reasonable grounds for believing that there is a deficiency in a trust account of the motor dealer maintained under Division 6 of Part 4, (h) the person has failed to comply with a rectification order made against the person under Division 2 of Part 5, (i) the person is contravening another law by carrying on business at a place of business to which the licence relates, (j) in the case of a body corporate, the body corporate— (i) is in the course of being wound up, is a body corporate in respect of which a receiver or other controller has been appointed or has entered into a compromise or scheme of arrangement with its creditors, or (ii) may, for any other reason, be unable to or be likely to become unable to meet its liabilities. 39A Members of partnerships or officers of bodies corporate (1) Disciplinary action may be taken under this division against an individual who is a member of a partnership or an officer of a body corporate that is the holder of a licence if the holder of the licence has engaged in improper conduct. (2) The reference in subsection (1) to an individual who is a member of a partnership includes a reference to an individual who is an officer of a body corporate that is a member of a partnership. (3) It is a sufficient response to the show cause notice given to the individual under section 41 if the individual's submissions to the Secretary satisfy the Secretary that— (a) the improper conduct occurred without the individual's knowledge, or (b) the individual was not in a position to influence the conduct of the other members of the partnership or other officers of the body corporate, of which the individual was a member or an officer, to prevent the improper conduct, or (c) the individual, being in the position, used all due diligence to prevent the occurrence of the improper conduct. (4) In this section— improper conduct means conduct that constitutes a ground for disciplinary action under section 38 or 39. 40 Additional grounds for disciplinary action—tradespersons' certificates Disciplinary action may also be taken against the holder of a tradesperson's certificate on the ground that the person is not competent to do repair work of a class to which the certificate relates. Division 2 Disciplinary process 41 Show cause notice (1) The Secretary may give a show cause notice to a person if the Secretary is of the opinion that there are reasonable grounds to believe that there are grounds for taking disciplinary action against the person. (2) A show cause notice is a notice requiring a person to show cause why disciplinary action should not be taken against the person under this Act on the grounds specified in the notice. (3) A show cause notice is to be in writing and is to specify a period of not less than 14 days after the notice is given as the period that the person to whom the notice is directed has to show cause as specified in the notice. (4) The person to whom a show cause notice is given may, within the period allowed by the notice, make oral or written submissions to the Secretary in respect of the matters to which the notice relates. In the case of a corporation, submissions may be made by a director or officer of the corporation. (5) Except as otherwise provided by this Act, the Secretary must not take disciplinary action against a person unless the person has been given a show cause notice and the Secretary has considered any submissions made in accordance with the show cause notice. 42 Power to suspend licence when show cause notice given (1) When a show cause notice is given to a person, the Secretary may by notice in writing to the person suspend the person's licence pending a determination by the Secretary of whether to take disciplinary action under this Act against the person. (2) The Secretary may suspend a licence under this section only if satisfied that the grounds for disciplinary action specified in the show cause notice would, if established, justify the suspension or cancellation of the licence. (3) The suspension must not be for a period of more than 60 days after the show cause notice is given. (4) The Secretary is not required to give a person an opportunity to be heard before taking action against the person under this section. (5) The Secretary can revoke a suspension under this section at any time by notice in writing to the suspended person. (6) This section does not limit or otherwise affect any power to suspend a licence under section 79A of the Fair Trading Act 1987. 43 Inquiries and investigations The Secretary may, if the Secretary thinks fit, conduct inquiries and carry out investigations in relation to the matters to which a show cause notice relates and the submissions, if any, made by or on behalf of the person to whom the show cause notice relates. 44 Decision to take no further action (1) The Secretary may at any stage of a matter that is the subject of consideration under this Part decide to take no further action whether or not the matter is the subject of a complaint or a show cause notice and whether or not the Secretary determines that there are grounds for taking disciplinary action in connection with the matter. (2) This section does not apply to any circumstances in which this Division requires the licence of a person to be cancelled. 45 Secretary may take disciplinary action (1) The Secretary may take any of the following disciplinary actions against a person if the Secretary is satisfied that there are grounds for taking disciplinary action against the person— (a) reprimand the person, (b) direct the person to take specified action within a specified time in connection with the conduct of a business or the exercise of functions under a licence, (c) suspend the person's licence for a period not exceeding the unexpired term of the licence, (d) impose a condition on the person's licence, (d1) require the person to pay to the Secretary the following within a specified time— (i) for an individual—an amount up to $11,000, (ii) for a body corporate—an amount up to $50,000, (e) without limiting paragraph (b), require a licence holder to make a contribution to the Compensation Fund of a specified amount or indemnify the Fund to the extent specified by the Secretary in the event of a particular contingency arising from the licence holder's activities, (f) disqualify the person, either permanently or for a specified period, from being a licence holder or involved in the direction, management or conduct of a business for which a licence is required, (g) cancel a licence. (2) The disciplinary action is to be taken by order in writing given to the person against whom the action is being taken. The order must specify the date on which the order takes effect. (3) The Secretary must cancel a licence if the Secretary disqualifies the licence holder from being the holder of a licence. (4) The Secretary must not require a person to pay an amount under subsection (1)(d1)— (a) in relation to grounds for disciplinary action mentioned in section 38(1)(c)–(f), 39(j) or 40, or (b) if the person has been found guilty of an offence in relation to the grounds specified in the show cause notice given to the person. 46 Mandatory licence cancellations The Secretary must cancel a licence under this Division if the Secretary is satisfied that there are any of the following grounds for taking disciplinary action against the licence holder— (a) the licence holder (other than the holder of a tradesperson's certificate) has (as an adult) been found guilty, within the preceding 10 years, of a motor vehicle stealing offence, (b) the licence holder is not a fit and proper person to hold a licence. Note— Section 27 sets out the criteria for determining whether a person is a fit and proper person to hold a licence. 47 Offences (1) A person who is disqualified under this Division from being involved in the direction, management or conduct of a business must not act contrary to the disqualification. Maximum penalty—200 penalty units. (2) The holder or former holder of a licence suspended or cancelled under this Division must not, without reasonable excuse, fail to return the licence to the Secretary within 7 days of the suspension or cancellation taking effect. Maximum penalty—50 penalty units. Part 4 Obligations relating to sale, recycling and repair of motor vehicles Division 1 Sale of motor vehicles generally 48 Motor vehicles must be sold at licensed premises (1) Offence The holder of a motor dealer's licence must not offer or display a motor vehicle for sale at a place other than notified premises. Maximum penalty—50 penalty units. (2) For the purposes of this section, notified premises do not include a road or footpath in the immediate vicinity of the premises. (3) Exception—trade shows A person is not guilty of an offence against this section if a motor vehicle is offered or displayed for sale at a trade show. (4) Exceptions—requests by others A person is not guilty of an offence against this section if a motor vehicle is offered or displayed for sale at another place in response to an unsolicited request made by a person to the motor dealer to display the motor vehicle at the other place or to carry out all or part of the transactions relating to the sale or purchase of the motor vehicle at that other place. (5) Definitions In this section— second-hand motor vehicle does not include a second-hand tractor or self-propelled agricultural machinery. 49 Failure to disclose being motor dealer (1) A motor dealer who sells a motor vehicle to another person and who fails to disclose to that person the fact that the motor dealer is a motor dealer is guilty of an offence. (2) An employee or agent of a motor dealer who sells a motor vehicle to another person in that capacity is guilty of an offence if the employee or agent fails to disclose to the person the fact that the sale is being made by or on behalf of a motor dealer. (3) This section does not apply to the sale of a motor vehicle to a motor dealer, a motor vehicle recycler or a financier. Maximum penalty—50 penalty units. 50 Representations and other Acts by employees or agents of motor dealers (1) A representation made in the course of a motor dealer's business by an employee or agent of the motor dealer about a motor vehicle offered or displayed for sale by the motor dealer is taken, for the purposes of this Act and the regulations, to have been made by the motor dealer. (2) If a provision of this Part requires a motor dealer to do a thing in relation to the sale or proposed sale of a motor vehicle, the motor dealer is taken to have complied with that provision if the thing is done on behalf of the motor dealer by an employee or agent of the motor dealer. 51 Misrepresentations about manufacture, registration or model of motor vehicle (1) False representations A person must not, in connection with offering or displaying a motor vehicle for sale or the sale of a motor vehicle, make a false representation of a kind specified in subsection (2) knowing it to be false or misleading. Maximum penalty—20 penalty units. (2) The false representations are as follows— (a) a representation that the year of manufacture of the motor vehicle is a year other than the actual year of manufacture of the motor vehicle, (b) a representation that the year in which the motor vehicle was first registered is a year other than the year in which the motor vehicle was actually first registered, (c) a representation that the model designation of the motor vehicle is a model designation other than the actual model designation of the motor vehicle. (3) Effect of other laws This section does not affect the operation of Part 5 of the Fair Trading Act 1987 (as in force before its repeal by the Fair Trading Amendment (Australian Consumer Law) Act 2010), or Part 4-1 of the Australian Consumer Law (NSW). However, a person cannot be prosecuted in respect of the same matter for an offence under this section and either of those Parts. (4) Compensation orders A court that convicts a person of an offence under this section may, on its own motion or on application by the prosecutor or a person who purchased the motor vehicle relying on the false representation, order the convicted person to pay to the purchaser an amount determined by the court as being the amount of the difference between the sale price of the motor vehicle and its fair price at the time of the sale. (5) Definition In this section— model designation means any words, figures, letters or symbols used by the manufacturer of a motor vehicle to identify a motor vehicle of that model. 52 Odometer tampering (1) Offence A person must not— (a) alter the reading on the odometer of a motor vehicle, or (b) remove or replace the odometer of a motor vehicle, or (c) render the odometer of a motor vehicle inoperative or inaccurate by any means. Maximum penalty—500 penalty units. (2) It is presumed, in the absence of evidence to the contrary, that a defendant in proceedings for an offence under this section committed the offence if it is proved in those proceedings that— (a) the defendant had possession of the motor vehicle, and (b) at that time or soon after the motor vehicle ceased to be in the defendant's possession, the odometer reading was less than the reading at the time the defendant acquired possession of the motor vehicle. (3) Defence It is a defence in proceedings for an offence under this section if the defendant proves that— (a) the action was not taken by the defendant with the intent of enhancing the apparent value of the motor vehicle for the purpose of sale, and (b) the action was not taken by the defendant for any other fraudulent purpose. (4) Repairs permitted Despite any other provision of this section, the holder of a motor vehicle repairer's licence may repair or replace an odometer if— (a) the holder notifies the Secretary in the approved form of the repair or replacement, and (b) the reading on the repaired or replacement odometer is restored so that it shows an accurate reading for the motor vehicle. (5) Despite any other provision of this section, any person may repair or replace an odometer if the repair or replacement— (a) is approved by the Secretary or a person prescribed by the regulations for the purposes of this section, and (b) is in accordance with the approval. (5A) An approval by the Secretary under subsection (5)(a) may be given subject to conditions, including in circumstances in which an odometer cannot be reset or has reached its operational limit. (6) Compensation orders A court that convicts a person of an offence under this section or section 53 may, on its own motion or on application by the prosecutor or a person who purchased the motor vehicle relying on the odometer reading of the motor vehicle, order the convicted person to pay to the purchaser an amount determined by the court as being the amount of the difference between the sale price of the motor vehicle and its fair price at the time of the sale. 53 Devices to facilitate odometer tampering (1) A person must not possess a device capable of rendering the odometer of a motor vehicle inoperative or inaccurate. Maximum penalty—500 penalty units. (2) A person must not fit to a motor vehicle a device capable of rendering the odometer of the motor vehicle inoperative or inaccurate. Maximum penalty—500 penalty units. (3) It is a defence in proceedings for an offence under subsection (1) if the defendant— (a) holds a motor vehicle repairer's licence, and (b) lawfully repairs or replaces the odometers of motor vehicles in the course of carrying on a business as a motor vehicle repairer. 54 Suspected odometer tampering A licence holder or any employee of a licence holder who suspects on reasonable grounds that the odometer reading of a motor vehicle in the licence holder's possession may have been altered or be inaccurate must without unreasonable delay inform the Secretary of that suspicion. Maximum penalty—50 penalty units. Division 2 Inspection report and number-plate requirements 55 Application of Division (1) This Division applies to or in respect of the sale by auction or otherwise of a motor vehicle. (2) This Division does not apply to or in respect of the following motor vehicle sales— (a) a sale of a motor vehicle that was registered for the first time, or the registration of which was renewed, within 90 days of the sale concerned, (b) a sale to a motor dealer, motor vehicle recycler or financier, (c) a sale by a motor vehicle recycler of a substantially demolished or dismantled motor vehicle. (3) In this Division, auction of a motor vehicle includes a proposed auction, and sale of a motor vehicle includes a proposed sale. 56 Current inspection reports An inspection report is a current inspection report for a motor vehicle for the purposes of this Act if it was issued within the period prescribed by the regulations before the date on which it is being relied on. 57 Sale at auction with number-plates (1) A person must not offer or display for sale, or sell, by auction a motor vehicle to which a number-plate is attached unless a current inspection report is attached to the vehicle in the manner prescribed by the regulations. Maximum penalty—50 penalty units. (2) Despite subsection (1), a person may offer or display for sale, or sell, by auction a motor vehicle without an attached current inspection report if— (a) a notice in the approved form is attached to the motor vehicle in the manner prescribed by the regulations, and (b) a current inspection report is provided to the purchaser by the person within 7 days following the sale, and (c) the purchase price of the motor vehicle as accepted at auction or, if the sale took place after the auction, as negotiated is not subsequently altered, and (d) the purchaser is not required to meet any part of the cost of any repairs required to be made to the motor vehicle in order to obtain the current inspection report. 58 Other sales with number-plates (1) A motor dealer must not sell a motor vehicle to which a number-plate is attached unless the motor dealer gives to the purchaser at or before the sale a current inspection report for the motor vehicle. Maximum penalty—50 penalty units. (2) This section does not apply to a sale by auction. 59 Sales of motor vehicles without number-plates attached A motor dealer must not sell a motor vehicle without a number-plate attached unless one of the following is displayed with the vehicle— (a) a certificate or receipt for the surrender of the number-plates for the motor vehicle issued by Transport for NSW or by a person authorised by a law of another State or a Territory to issue the certificate or receipt, (b) a declaration by the motor dealer in the approved form (if any) that sets out the reason for the absence of any number-plate and the lack of such a certificate or receipt. Maximum penalty—50 penalty units. Division 3 Dealers' notices 60 Application of Division This Division does not apply to or in respect of the following motor vehicle sales— (a) a sale by bona fide auction, (b) a sale to a motor dealer, motor vehicle recycler or financier, (c) a sale by a motor vehicle recycler of a substantially demolished or dismantled motor vehicle, (d) a sale to a motor vehicle recycler for the purpose of the motor vehicle being wholly or partly demolished or dismantled. 61 Definition of "demonstrator motor vehicle" In this Act— demonstrator motor vehicle means a motor vehicle— (a) that has been used only for a purpose connected with its manufacture or sale or for the purpose of demonstrating the motor vehicle, or a motor vehicle of that kind, to a potential purchaser, and (b) that has not been sold to a person other than a motor dealer, and (c) that has been registered only in the name of a motor dealer, a person on behalf of a motor dealer or another person in anticipation of the sale of the motor vehicle to that person. 62 Dealers' notices—disclosure and other requirements (1) If a provision of this Act requires a dealer's notice, the notice provided must— (a) be in the form approved for the purposes of the provision that requires the dealer's notice, and (b) contain the particulars required to complete the form, but not contain particulars that are false or misleading in a material particular, and (c) comply with any other requirements of the regulations. (2) If this Act requires more than one dealer's notice to be attached or provided in the same circumstances, the required dealers' notices must be combined in one notice. (3) A holder of a motor dealer's licence is not liable for a contravention of a provision of this Act that requires the attachment to, or provision of a dealer's notice for, a motor vehicle that is sold on behalf of the holder by another motor dealer. 63 Sale notices for second-hand motor vehicles (1) Application This section does not apply to any of the following— (a) a demonstrator motor vehicle, (b) a second-hand motor cycle, (c) a second-hand trailer, (d) a second-hand towable recreation vehicle. (2) Offences A motor dealer must not offer or display for sale a second-hand motor vehicle unless a dealer's notice is attached to the motor vehicle. (3) A motor dealer must not sell a second-hand motor vehicle unless— (a) at or before the sale, the motor dealer and the purchaser sign the dealer's notice required by this section, or a copy of the notice, and (b) the motor dealer gives the purchaser the notice, or a copy, to keep. Maximum penalty (subsections (2) and (3)): 50 penalty units.