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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-07-17 Daily Xml
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SECOND-HAND VEHICLE DEALERS (COOLING-OFF RIGHTS) AMENDMENT BILL

Committee Stage

In committee.

(Continued from 16 July 2009. Page 2966.)

Clause 1 passed.

Clauses 2 and 3 passed.

Clause 4.

The Hon. J.M.A. LENSINK: I move:

Page 3, after line 34—Insert:

(7) Section 3—After its present contents as amended by this section (now to be designated as subsection (1)) insert:

(2) For the purposes of this act, the sale of a second-hand vehicle negotiated by an auctioneer during the period commencing after the conduct of an auction for the sale of the vehicle and concluding at the end of the day on which the auction occurred will be taken to be a sale negotiated by the auctioneer immediately after the conduct of the auction.

I appreciate that I may not have the numbers, but this amendment is in relation to defining what is an auction. From reading the act and the bill, I note that there is no definition of 'auction'. There are concerns within the industry that there has been some misuse by either auction houses or people who conduct auctions that enables them to participate in the sale of motor vehicles and that some of these sales may not occur at the fall of the hammer but are negotiated before or after the auction.

So, the well-understood definition of 'auction', which may mean negotiation very shortly afterwards, has been expanding due to a lack of appropriate monitoring. This amendment really is an attempt to address this problem but, as I have said, I appreciate that I may not have the numbers for it to be successful.

The Hon. G.E. GAGO: The government opposes this amendment. We have already put on the record our reasons for opposing this amendment. There is little or no evidence to indicate that there is any problem activity around the end of auction transactions causing problems to the industry at present. We believe that to restrict transactions to the fall of the hammer would be restrictive to industry practices, and there is little or no evidence to suggest that it is causing problems at present. We oppose the amendment.

Amendment negatived; clause passed.

Clauses 5 to 16 passed.

Clause 17.

The Hon. G.E. GAGO: I move:

Page 8, line 19 [clause 17, inserted section 18B(5)]—

Delete '2 per cent of that price or $100, whichever is the lesser' and substitute:

10 per cent of that price

We have undertaken considerable discussions and negotiations with the MTA and the opposition. We have come to a compromise position, which is a sound position. The industry has raised concerns about limiting the cooling-off provisions to only 2 per cent or $100, whichever is the lesser amount. The industry was concerned that people would shop around, given that it believed it was such a nominal amount. We have agreed that the industry would be able to include a deposit of up to 10 per cent, of which 2 per cent or $100, whichever is the lesser amount, would be associated with the cooling-off option and would be non-refundable, and the rest of the amount would be refundable, according to the industry standards. I commend the amendment to the chamber.

The Hon. J.M.A. LENSINK: I support the amendment. As the minister said, we have negotiated this amendment, and the following amendments, which are all consequential and similar to amendments Nos 2, 3 and 4 in my name, which I will not be moving.

Amendment carried.

The Hon. G.E. GAGO: I move:

Page 8, lines 21 to 23 [clause 17, inserted section 18B(6)]—Delete subsection (6)

Amendment carried.

The Hon. G.E. GAGO: I move:

Page 8, after line 27 [clause 17, inserted section 18B]—After subsection (7) insert:

(7a) If a purchaser rescinds a contract by notice under this section, the dealer must, before the end of the next clear business day after receiving the notice, refund to the purchaser any amount paid in respect of the sale less 2 per cent of the contract price of the vehicle or $100, whichever is the lesser (which the dealer is entitled to retain).

Maximum penalty: $5,000

(7b) For the purposes of subsection (7a), a refund may be paid—

(a) by giving the purchaser in cash or by cheque; or

(b) by posting a cheque by registered post to the purchaser's last known address (in which case the refund is taken to have been paid when the cheque is posted); or

(c) by electronic transfer of funds into an ADI account nominated by the purchaser (in which case the refund is taken to have been paid when the transfer is executed by the dealer); or

(d) by any other prescribed method.

Amendment carried.

The Hon. G.E. GAGO: I move:

Page 9, line 39 [clause 17, inserted section 18D(2)]—

Section 18D(2)—delete 'is' and substitute:

, or any part of the trade-in vehicle, is altered in any way or

Negotiations may have included a trade-in. When that trade-in vehicle arrives at the yard and it has been altered in some significant way that would affect the worth of the vehicle, and this amendment would allow that to be considered accordingly.

The Hon. J.M.A. LENSINK: I support the amendment.

Amendment carried; clause as amended passed.

Clauses 18 to 24 passed.

Clause 25.

The Hon. J.M.A. LENSINK: I move:

Page 11, after line 29—Before subclause (1) insert:

(a1) Section 33—after subsection (2) insert:

(2a) A document for the waiver of the right of a prospective purchaser of a second-hand vehicle under section 18B to rescind a contract for the sale of the vehicle must conform with the following requirements:

(a) the document must contain—

(i) a statement of the rights of a prospective purchaser under section 18B to rescind the contract; and

(ii) a statement warning a prospective purchaser of the legal effect if he or she waives the right to rescind the contract under section 18B;

(b) the document must be written in plain English;

(c) the document may be completed electronically or manually but must be signed by the prospective purchaser and witnessed by a person other than the dealer;

(d) the document must contain any other prescribed information.

This amendment is really to prescribe in some way the form of waiver to ensure that it is not overly wordy and that it is a fairly simple instrument that will have a standard form that the industry and consumers are able to access without difficulty.

The Hon. G.E. GAGO: The government supports this amendment. Again, this is a compromise position. We would have preferred these matters to be detailed in regulation. However, the industry was very keen to have at least the principles outlined in legislation, which is not a usual process; nevertheless, there is no reason why that cannot be done. I think that the reference to 'two pages' was too prescriptive, so I am pleased the opposition has removed that. The government is prepared to support this amendment.

Amendment carried; clause as amended passed.

Clauses 26 to 30 passed.

The CHAIRMAN: I point out to the committee that clause 31 is a money clause in erased type. Standing order 289 provides that no question shall be put in the committee upon any such clause. The message transmitting the bill to the House of Assembly is required to indicate that this clause is deemed necessary to the bill.

Schedule and title passed.

Bill reported with amendments.

Third Reading

Bill read a third time and passed.

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