Second-hand Vehicle Dealers Regulations 2010 (SA)

South Australia Second-hand Vehicle Dealers Regulations 2010 under the Second-hand Vehicle Dealers Act 1995

Contents 1 Short title 3 Interpretation 4 Exemptions 5 Fees—waiver, reduction and refund 6 Forms 7 Annual fee and return (section 11 of Act) 8 Notification of change in circumstances 9 Return etc of licence 10 Display of licences etc 10A Dealer to retain employee records 11 Notices to be displayed (section 16 of Act) 12 Form of contract (section 17 of Act) 12A Dealer to retain copy of contract 13 Notices to be provided to purchasers of second‑hand vehicles (section 18 of Act) 14 Sale of vehicle and Dealer's Copy of Section 16 Notice 14A Option to purchase vehicle subject to contract for sale (section 18E of Act) 15 Notices to be displayed in case of auction (section 20 of Act) 16 Notices to be provided to purchasers of second‑hand vehicles (section 21 of Act) 17 Sale of vehicle and Auctioneer's Copy of Auction Notice 18 Trade auctions (section 22 of Act) 19 Sales between dealers 20 Advertisements 21 Dealers not under duty to repair certain defects (section 23 of Act) 22 Second‑hand Vehicles Compensation Fund (Schedule 3 of Act) 23 Waiver of rights (section 33 of Act) Schedule 2—Forms Schedule 3—Advertisements for sale of second‑hand vehicles Schedule 4—Defects in vehicles Part 1—Defects in accessories Part 2—Left­hand drive configuration Schedule 5—Contributions to second‑hand vehicles compensation fund Schedule 6—Waiver of rights Legislative history

1—Short title These regulations may be cited as the Second-hand Vehicle Dealers Regulations 2010. 3—Interpretation (1) In these regulations, unless the contrary intention appears— Act means the Second-hand Vehicle Dealers Act 1995; Auction Notice means— (a) if the auctioneer is conducting an auction on the auctioneer's own behalf or on behalf of a dealer— (i) for the sale of a second‑hand vehicle other than a motorcycle—a notice in the form set out in Form 7; (ii) for the sale of a second‑hand motorcycle—a notice in the form set out in Form 8; (b) if the auctioneer is conducting an auction on behalf of another person not being a dealer— (i) for the sale of a second‑hand vehicle other than a motorcycle—a notice in the form set out in Form 11; (ii) for the sale of a second‑hand motorcycle—a notice in the form set out in Form 12; compliance plate means an identification plate authorised by the Australian Motor Vehicle Certification Board for affixing to a particular vehicle or class of vehicle; duty to repair means the duty to repair imposed on a dealer under Part 4 of the Act; Section 16 Notice means— (a) in relation to the offer for sale of a second‑hand vehicle other than a motorcycle—a notice in the form set out in Form 1; (b) in relation to the offer for sale of a second‑hand motorcycle—a notice in the form set out in Form 2; year of manufacture means— (a) the year of the date referred to on the compliance plate (if any) affixed to the vehicle; or (b) the year (if any) impressed on or affixed to the vehicle by the manufacturer as the year in which the vehicle was manufactured; or (c) the year during which the manufacture of the vehicle was completed to a stage that would have enabled the vehicle to be registered, whichever year is the earliest. (2) In these regulations, a reference to a form of a particular number is a reference to the form of that number set out in Schedule 2. 4—Exemptions (1) The following activities are exempt from the application of the Act: (a) the buying, selling or offering for sale of vehicles with an unladen mass exceeding 3 000 kilograms; (b) the buying, selling or offering for sale of vehicles manufactured or adapted solely for agricultural or industrial use; (c) the buying, selling or offering for sale of vehicles by an executor or trustee on behalf of the estate of a deceased person. (2) The activity of selling or offering for sale an unroadworthy vehicle to a vehicle wrecker is exempt from the following sections of the Act if the vehicle is sold or offered for sale to the vehicle wrecker for the purpose of being wrecked or disassembled for salvage: (a) section 16; (b) section 17; (c) section 18; (d) section 18B; (e) section 23. (3) In this regulation— vehicle wrecker means a person who carries on the business of wrecking vehicles or disassembling vehicles for salvage. 5—Fees—waiver, reduction and refund The Commissioner may waive, reduce or refund a fee (or part of a fee) prescribed for the purposes of the Act if satisfied that it is appropriate to do so in a particular case. 6—Forms (1) A notice must, in order to be in a form set out in Schedule 2— (a) contain particulars and statements and be completed as required or indicated by the form; and (b) not contain any particulars or statements other than those required or indicated under the Act or these regulations; and (c) be printed or typewritten in type that is not smaller than 10 point Times New Roman or Calibri font; and (d) not include any printing or handwriting (other than a signature) that is not clear and legible. (2) Despite subregulation (1)(c), the notice set out in Form 15 must, in order to be set out in that form, comply with the following: (a) the first and third lines of the notice must be printed or typewritten in type that is not smaller than 16 point Times New Roman or Calibri font; (b) the second line of the notice must be printed or typewritten in type that is not smaller than 20 point Times New Roman or Calibri font. 7—Annual fee and return (section 11 of Act) (1) For the purposes of section 11(2) of the Act, the date for payment of an annual fee and for lodging an annual return is— (a) in the case of a dealer who held a licence immediately before 19 July 2001— (i) the last day of the month in each year nominated in writing to the dealer by the Commissioner; or (ii) if the Commissioner does not nominate a month—30 November in each year; (b) in the case of a dealer granted a licence on or after 19 July 2001— (i) the last day of the month in each year nominated in writing to the dealer by the Commissioner; or (ii) if the Commissioner does not nominate a month—the last day of the month in each year that is the same month as the month in which the dealer's licence was granted. 8—Notification of change in circumstances (1) If there is any change in— (a) the residential address of a licensed dealer; or (b) the name in which a licensed dealer carries on business; or (c) the address of the registered corporate office of a licensed dealer that is a body corporate; or (d) the address for service of a licensed dealer, the dealer must, within 14 days after that change, give written notice to the Commissioner of the new address or name (as the case may be). Maximum penalty: $5 000. Expiation fee: $315. (2) A licensed dealer must, within 14 days after ceasing to carry on business as a dealer, give written notice to the Commissioner of that fact. Maximum penalty: $5 000. Expiation fee: $315. (3) A licensed dealer must, within 14 days after entering into partnership to carry on business as a dealer or ceasing to be in such a partnership, give written notice to the Commissioner of that fact, together with the names and addresses of the members of the new or former partnership. Maximum penalty: $5 000. Expiation fee: $315. (4) If a person is appointed as a director of a body corporate that is a licensed dealer, the dealer must, within 14 days after the appointment— (a) notify the Commissioner in the manner and form approved by the Commissioner of the appointment of the new director; and (b) provide the Commissioner with any information required by the Commissioner for the purposes of determining whether the new director meets the requirements for directors under section 9(2) of the Act. Maximum penalty: $5 000. Expiation fee: $315. 9—Return etc of licence (1) If the licence of a dealer is surrendered, suspended or cancelled, the dealer must, at the direction of the Tribunal or the Commissioner, return the licence to the Commissioner. Maximum penalty: $5 000. Expiation fee: $315. (2) If on an application under section 8 of the Act a licence has been issued to a dealer but the fee payable in respect of the application has not been paid (whether because of the dishonouring of a cheque or otherwise), the dealer must, at the direction of the Commissioner, return the licence to the Commissioner. Maximum penalty: $5 000. Expiation fee: $315. (3) The Commissioner may issue to a licensed dealer a licence in replacement of a current licence if satisfied that— (a) the current licence has been lost, destroyed or damaged; or (b) any particulars appearing on the current licence are incorrect. (4) If the Commissioner issues to a licensed dealer a replacement licence, the dealer must, at the direction of the Commissioner, return the original (or previous duplicate) licence to the Commissioner. Maximum penalty: $5 000. Expiation fee: $315. 10—Display of licences etc A licensed dealer must ensure— (a) that a copy of the dealer's licence is prominently displayed at each of the notified premises of the dealer in an area accessible to the public; and (b) that— (i) the name under which the dealer carries on business as a dealer; and (ii) the words "Licensed Second‑hand Vehicle Dealer" (which may be abbreviated to "LVD") immediately followed by the dealer's licence number, or, if 2 or more licensed dealers are conducting a business in partnership, the licence number of each of the partners, are prominently and permanently displayed at the main public entrance to each of the notified premises of the dealer. Maximum penalty: $5 000. 10A—Dealer to retain employee records (1) A dealer must keep, in respect of each person employed by the dealer as a salesperson, records relating to the person's employment by the dealer (including any report on the person's criminal history (if any)) at— (a) the notified premises of the dealer; or (b) another location the details of which are kept at the notified premises of the dealer, for the duration of the person's employment by the dealer. Maximum penalty: $5 000. Expiation fee: $315. (2) A dealer must produce to an authorised officer within a reasonable time (on request) any record that the dealer is required to keep under subregulation (1). Maximum penalty: $5 000. Expiation fee: $315. 11—Notices to be displayed (section 16 of Act) (1) For the purposes of section 16 of the Act, the notice required by that section to be attached to a second‑hand vehicle offered for sale is a Section 16 Notice. (2) A dealer must, in respect of a Section 16 Notice, ensure that— (a) subject to this regulation, 3 identical copies of the Notice are prepared; and (b) the copy to be attached to the vehicle— (i) is endorsed with the statement "Display Copy"; and (ii) — (A) in the case of a motorcycle—is folded in half and inserted (in such a manner that the contents are clearly visible) in a plastic envelope that is attached to the handle bars of the motorcycle to which it relates; (B) in the case of any other vehicle—is attached to the inside of a window of the vehicle to which it relates (in such a manner that the contents of the notice are clearly visible through the window); and (c) the second copy is endorsed with the statement "Purchaser's Copy" and has the form set out in Form 3 or Form 4 (as the case requires) printed on the reverse side; and (d) the third copy (the Dealer's Copy) is endorsed with the statement "Dealer's Copy" and— (i) in the case of a motorcycle—has the form set out in Form 4 printed on the reverse side; (ii) in the case of any other vehicle—has the part of the form set out in Part 1 of Form 3 printed on the reverse side; and (e) the second and third copies are kept at the registered premises of the dealer at which the vehicle to which the Section 16 Notice relates is being offered for sale. Maximum penalty: $5 000. 12—Form of contract (section 17 of Act) For the purposes of section 17(1)(d) of the Act— (a) the particulars to be contained in a contract for the sale of a second‑hand vehicle by a dealer must be set out in the contract in the manner shown in Form 5 or Form 6 (as the case requires); and (b) the particulars required to be included in the contract are as required or indicated by that Form. 12A—Dealer to retain copy of contract (1) A copy of each contract for the sale of a second‑hand vehicle by a dealer must be kept by the dealer at— (a) the notified premises of the dealer; or (b) another location the details of which are kept at the notified premises of the dealer, for a period of not less than 2 years from the date of the sale. Maximum penalty: $5 000. Expiation fee: $315. (2) A dealer must produce to an authorised officer within a reasonable time (on request) a copy of any contract that the dealer is required to keep under subregulation (1). Maximum penalty: $5 000. Expiation fee: $315. 13—Notices to be provided to purchasers of second‑hand vehicles (section 18 of Act) For the purposes of section 18(b) of the Act, the notice required by that section to be given by a dealer to the purchaser of a second‑hand vehicle must be in the form set out in Form 3 or Form 4 (as the case requires). 14—Sale of vehicle and Dealer's Copy of Section 16 Notice (1) On the sale of a second‑hand vehicle by a dealer (being a sale to which Part 3 Division 1 of the Act applies), the dealer must complete the Dealer's Copy of the Section 16 Notice relating to the vehicle as required or indicated— (a) in the case of a motorcycle—by Form 4; (b) in the case of any other vehicle—by Part 1 of Form 3. Maximum penalty: $5 000. (2) A licensed dealer must keep the Dealer's Copy of a Section 16 Notice at— (a) the notified premises of the dealer; or (b) another location the details of which are kept at the notified premises of the dealer, for a period of not less than 2 years from the date of sale of the vehicle to which the Notice relates. Maximum penalty: $5 000. Expiation fee: $315. (3) A dealer must produce to an authorised officer within a reasonable time (on request) the Dealer's Copy of a Section 16 Notice that the dealer is required to keep under subregulation (2). Maximum penalty: $5 000. Expiation fee: $315. 14A—Option to purchase vehicle subject to contract for sale (section 18E of Act) For the purposes of section 18E(2)(b)(ii) of the Act, a notice in the approved form is to contain— (a) a statement of the dealer's right under section 18E(2)(a) of the Act to require the person to whom an option is granted to pay a deposit, including details of the maximum deposit that may be required; and (b) a statement of the circumstances in which the holder of an option to purchase a second‑hand vehicle that is subject to a contract for sale is entitled under section 18E(3) of the Act to a refund of any deposit paid in order to secure the option; and (c) any other information approved by the Commissioner for the purposes of the notice. 15—Notices to be displayed in case of auction (section 20 of Act) (1) For the purposes of section 20 of the Act, the notice required by that section to be attached to a second‑hand vehicle when the vehicle is available for inspection by prospective bidders at an auction for the sale of the vehicle is an Auction Notice. (2) An auctioneer must, in respect of an Auction Notice, ensure that— (a) subject to this regulation, 3 identical copies of the Notice are prepared; and (b) the copy to be attached to the vehicle— (i) is endorsed with the statement "Display Copy"; and (ii) — (A) in the case of a motorcycle—is folded in half and inserted (in such a manner that the contents are clearly visible) in a plastic envelope that is attached to the handle bars of the motorcycle to which it relates; and (B) in the case of any other vehicle—is attached to the inside of a window of the vehicle to which it relates (in such a manner that the contents of the notice are clearly visible through the window); and (c) the second copy— (i) is endorsed with the statement "Purchaser's Copy"; and (ii) has printed on the reverse side— (A) if the auctioneer is conducting the auction on the auctioneer's own behalf or on behalf of a dealer—the form set out in Form 9 or Form 10 (as the case requires); and (B) if the auctioneer is conducting the auction on behalf of another person not being a dealer—the form set out in Form 13 or Form 14 (as the case requires); and (d) the third copy (the Auctioneer's Copy)— (i) is endorsed with the statement "Auctioneer's Copy"; and (ii) has printed on the reverse side— (A) if the auctioneer is conducting the auction on the auctioneer's own behalf or on behalf of a dealer— • in the case of a motorcycle—the form set out in Form 10; • in the case of any other vehicle—the part of the form set out in Part 1 of Form 9; and (B) if the auctioneer is conducting the auction on behalf of another person not being a dealer— • in the case of a motorcycle—the form set out in Form 14; • in the case of any other vehicle—the part of the form set out in Part 1 of Form 13; and (e) the second and third copies are kept at the premises of the auctioneer at which the vehicle to which the Auction Notice relates is available for inspection by prospective bidders. Maximum penalty: $5 000. 16—Notices to be provided to purchasers of second‑hand vehicles (section 21 of Act) For the purposes of section 21(d) of the Act, the notice required by that section to be given by an auctioneer to the purchaser of a second‑hand vehicle must— (a) if the vehicle was sold on the auctioneer's own behalf or on behalf of a dealer—be in the form set out in Form 9 or Form 10 (as the case requires); or (b) if the vehicle was sold on behalf of another person not being a dealer—be in the form set out in Form 13 or Form 14 (as the case requires). 17—Sale of vehicle and Auctioneer's Copy of Auction Notice (1) On the sale of a second‑hand vehicle by an auctioneer (being a sale referred to in section 21 of the Act), the auctioneer must complete the Auctioneer's Copy of the Auction Notice relating to the vehicle as required or indicated— (a) if the auctioneer conducted the auction on the auctioneer's own behalf or on behalf of a dealer— (i) in the case of a motorcycle—by Form 10; or (ii) in the case of any other vehicle—by Part 1 of Form 9; and (b) if the auctioneer conducted the auction on behalf of another person not being a dealer— (i) in the case of a motorcycle—by Form 14; or (ii) in the case of any other vehicle—by Part 1 of Form 13. Maximum penalty: $5 000. (2) An auctioneer must keep the Auctioneer's Copy of an Auction Notice for a period of not less than 12 months from the date of sale of the vehicle to which the Notice relates. Maximum penalty: $5 000. 18—Trade auctions (section 22 of Act) (1) For the purposes of section 22 of the Act— (a) the notice required by that section to be attached to a second‑hand vehicle when the vehicle is available for inspection by prospective bidders at a trade auction for the sale of the vehicle must be in the form set out in Form 15; and (b) the prescribed form of the statement required to be included in an advertisement of a trade auction is— (i) if the advertisement is in a newspaper, magazine, leaflet or other printed or written material—the statement "Trade Auction—Bids Accepted from Licensed Dealers Only" in print, type or letters no smaller than the largest print, type or letters used elsewhere in the advertisement excepting the print, type or letters used in spelling the name or the business name of the person so advertising; or (ii) in any other case—the statement referred to in subparagraph (i) included in such a way and with such prominence that it is likely to come to the attention of the persons seeing or hearing the advertisement. (2) If an auctioneer is required to attach a notice to a second‑hand vehicle under section 22(1) of the Act, the auctioneer must ensure that the notice is attached to the inside of a window of the vehicle to which it relates in such a manner that the contents of the notice are clearly visible through the window. Maximum penalty: $5 000. 19—Sales between dealers If a second‑hand vehicle is sold by a dealer to another dealer, the following provisions must be complied with: (a) the sale must be evidenced by instrument in writing in the form set out in Form 16 (the Dealer Sale form), completed and signed by the dealers in duplicate within 7 days of the purchasing dealer taking possession of the vehicle pursuant to the sale; (b) 1 copy of the Dealer Sale form must be kept by the selling dealer for a period of not less than 2 years from the date of sale of the vehicle; (c) the other copy of the Dealer Sale form must be kept by the purchasing dealer for the period for which the dealer retains ownership of the vehicle and, if the vehicle is subsequently sold by the purchasing dealer, for a period of not less than 12 months from the date of the subsequent sale of the vehicle. Maximum penalty: $5 000. 20—Advertisements (1) An advertisement relating to the sale of a second‑hand vehicle by a dealer must contain the information and particulars referred to in Schedule 3. (2) An advertisement relating to the sale of a second‑hand vehicle by a person other than a dealer must contain the information and particulars referred to in paragraph (c) of Schedule 3. (3) A person who publishes an advertisement relating to the sale of a second‑hand vehicle that does not comply with this regulation, or who causes or permits such an advertisement to be published, is guilty of an offence. Maximum penalty: $5 000. 21—Dealers not under duty to repair certain defects (section 23 of Act) (1) A dealer is not under a duty to repair a defect under section 23 of the Act— (a) if the defect is listed in Schedule 4 Part 1 or Part 2 and the dealer has complied with the conditions set out in that Part of the Schedule; or (b) if the purchaser, without reasonable excuse, fails to give the dealer (being a licensed dealer) proper notice (written or oral) of the defect within the prescribed period; or (c) if the purchaser must, in order to require the dealer to discharge such a duty, deliver or make reasonable efforts to deliver the vehicle to the dealer in accordance with section 24(1) and (2) of the Act, but fails to do so, without reasonable excuse, within 5 business days of the end of the prescribed period. (2) In this regulation— business day means any day except a Saturday or a Sunday or other public holiday; prescribed period, in relation to a defect in a vehicle, means the period within which the defect must (according to section 23(4) of the Act) appear in order for the dealer to be under a duty to repair the defect. 22—Second‑hand Vehicles Compensation Fund (Schedule 3 of Act) (1) Schedule 3 clause 2 of the Act does not apply to a claim in respect of the provision by a dealer of goods or services that do not relate directly to the second‑hand vehicle1 purchased or sold by the dealer or left in the dealer's possession. (2) For the purposes of Schedule 3 clause 4 of the Act, each licensed dealer is required to pay to the Commissioner the contribution referred to in Schedule 5 of these regulations in accordance with the provisions of that Schedule. (3) For the purposes of Schedule 3 clause 3(2)(d) of the Act, an educational program approved by the Commissioner conducted by or on behalf of the Commissioner for the benefit of dealers, salespersons and members of the public is prescribed. Note— 1 Goods or services not relating directly to the vehicle may include, for example, travel, accommodation, household goods, entry tickets to certain events etc or a scheme whereby goods or services may be redeemed in the future. 23—Waiver of rights (section 33 of Act) (1) A person who purchases a second‑hand vehicle from a dealer may waive his or her rights under Part 4 of the Act in relation to the repair of a defect in the vehicle if— (a) the person signs the Waiver of Rights Under Part 4 document, as set out in Schedule 6, before a witness of a kind specified in that Schedule; and (b) the witness signs a certificate as required or indicated by that Schedule. (2) A person must not sign a witness certificate (as set out in the Waiver of Rights Under Part 4 document)— (a) if he or she— (i) is the dealer; or (ii) is owed money by or indebted to the dealer; or (iii) is employed by the dealer as an employee or under a contract for the performance of services; or (iv) is otherwise a close associate of the dealer; and (b) unless the witness has made reasonable inquiries to satisfy himself or herself that the person proposing to sign the document understands the effect of completing the document. Maximum penalty: $5 000. Expiation fee: $315. (3) A prospective purchaser of a second‑hand vehicle from a dealer may waive his or her right under section 18B of the Act to rescind the contract for the sale of the vehicle if he or she signs the Waiver of Cooling‑off Rights document, as set out in Schedule 6, before a witness who signs the document as required or indicated by the document. (4) A person must not sign as witness to a Waiver of Cooling‑off Rights document if he or she is the dealer or a salesperson employed by the dealer who has been involved in any way in the transaction for the sale of the vehicle to the prospective purchaser. Maximum penalty: $5 000. Expiation fee: $315. (5) A copy of each waiver document signed by a purchaser or prospective purchaser in respect of the sale or prospective sale of a second‑hand vehicle by a dealer must be kept by the dealer at— (a) the notified premises of the dealer; or (b) another location the details of which are kept at the notified premises of the dealer, for a period of not less than 2 years from the date on which the document is signed. Maximum penalty: $5 000. Expiation fee: $315. (6) A dealer must produce to an authorised officer within a reasonable time (on request) a copy of any waiver document that the dealer is required to keep under subregulation (5). Maximum penalty: $5 000. Expiation fee: $315. (7) In this regulation— waiver document means the Waiver of Rights Under Part 4 document or the Waiver of Cooling‑off Rights document, as the case requires.