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 a