Motor Car Traders Amendment Act 2008

Motor Car Traders Amendment Act 2008 No. 4 of 2008 TABLE OF PROVISIONS Section Page 1 Purposes 1 2 Commencement 2 3 Principal Act 2 4 Extension of purpose of Principal Act 2 5 Definitions 2 6 Deemed trading in motor cars 2 7 Grant or refusal of licences 3 8 Conditions of licence 4 9 Suspension of licence—claims on Fund 5 10 Application for permission where claim on Fund 7 11 Insertion of penalty for failing to keep a dealings book 8 12 Prohibited employees 8 13 Section 37 substituted 11 37 Dealing with young persons 11 14 Cooling off period 11 15 Aiding and abetting 12 16 New Part 3A inserted 13 PART 3A—SALE OF MOTOR CARS BY AUCTION 13 50C Definitions 13 50D Dummy bidding prohibited 13 50E Offences by auctioneers relating to bidding 14 50F Offence to procure dummy bid 14 50G Permissible vendor bids 15 50H Offence to falsely acknowledge bid 15 50I Contrary conditions are void 16 50J Auctioneer to keep records 16 17 Definition of cash price 16 18 Particulars to be displayed 17 19 New section 53 inserted 17 53 Motor car traders to provide name and address of last owner 17 20 Name change for Committee 18 i -- 1 of 37 -- Section Page 21 New sections 68 and 69 inserted 18 68 Committee may require information from parties to a claim 18 69 Director, police and public authorities to produce information to Committee 19 22 Reasons for determination 20 23 New section 72 inserted 20 72 Secretary may take legal proceedings on behalf of Committee 20 24 Claims on the Fund 21 25 Committee may take the conduct of parties into account 24 26 New section 77A inserted 25 77A Committee may postpone its determination 25 27 No further claim on refusal 26 28 Documents to be kept at office premises for 3 years 26 29 New section 121 inserted 26 121 Transitional—Motor Car Traders Amendment Act 2008 26 30 New section 122 inserted 27 122 Further transitional—Motor Car Traders Amendment Act 2008 27 31 Amendment of Interpretation of Legislation Act 1984— definition of insolvent under administration 27 32 Amendments to other Acts 28 33 Repeal of Amending Act 28 __________________ SCHEDULE—Consequential Amendments 29 1. Appeal Costs Act 1998 29 2 Building Act 1993 29 3 Catchment and Land Protection Act 1994 29 4 Commissioner for Law Enforcement Data Security Act 2005 29 5 Companies (Administration) Act 1981 29 6 Consumer Credit (Victoria) Act 1995 29 7 Emergency Services Telecommunications Authority Act 2004 29 8 Environment Protection Act 1970 30 9 Estate Agents Act 1980 30 10 Film Act 2001 30 11 Fundraising Appeals Act 1998 30 12 Gambling Regulation Act 2003 30 13 Geothermal Energy Resources Act 2005 30 14 Health Services Act 1988 30 15 Information Privacy Act 2000 31 16 Instruments Act 1958 31 ii -- 2 of 37 -- Section Page 17 Introduction Agents Act 1997 31 18 Liquor Control Reform Act 1998 31 19 Major Crime (Investigative Powers) Act 2004 31 20 Major Crime (Special Investigations Monitor) Act 2004 31 21 Mental Health Act 1986 31 22 Outworkers (Improved Protection) Act 2003 31 23 Owner Drivers and Forestry Contractors Act 2005 32 24 Police Regulation Act 1958 32 25 Private Security Act 2004 32 26 Professional Standards Act 2003 32 27 Prostitution Control Act 1994 32 28 Public Administration Act 2004 32 29 Retirement Villages Act 1986 32 30 Second-Hand Dealers and Pawnbrokers Act 1989 32 31 Southern and Eastern Integrated Transport Authority Act 2003 32 32 Sustainability Victoria Act 2005 32 33 Transport Act 1983 33 34 Travel Agents Act 1986 33 35 Victorian Civil and Administrative Tribunal Act 1998 33 36 Victorian Urban Development Authority Act 2003 33 37 Water Act 1989 33 38 World Swimming Championships Act 2004 33 ═══════════════ ENDNOTES 34 iii -- 3 of 37 -- Victoria Motor Car Traders Amendment Act 2008† No. 4 of 2008 [Assented to 4 March 2008] The Parliament of Victoria enacts: 1 Purposes The main purposes of this Act are— (a) to amend the Motor Car Traders Act 1986 to improve the operation of that Act; and (b) to amend the Interpretation of Legislation Act 1984 to insert a new definition of insolvent under administration; and (c) to make consequential amendments to other Acts as a result of the amendment of the Interpretation of Legislation Act 1984. 1 -- 4 of 37 -- Motor Car Traders Amendment Act 2008 No. 4 of 2008 s. 2 2 Commencement (1) Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed. (2) If a provision of this Act does not come into operation before 1 December 2008, it comes into operation on that day. 3 Principal Act In this Act, the Motor Car Traders Act 1986 is called the Principal Act. See: Act No. 104/1986. Reprint No. 6 as at 1 December 2006 and amending Act No. 17/2007. LawToday: www. legislation. vic.gov.au 4 Extension of purpose of Principal Act In section 1 of the Principal Act, for "purchase motor cars" substitute "deal with motor car traders". 5 Definitions (1) In section 3(1) of the Principal Act, in the definition of Committee for "Guarantee Fund Claims Committee" substitute "Motor Car Traders Claims Committee". (2) In section 3(1) of the Principal Act, the definition of insolvent under administration is repealed. 6 Deemed trading in motor cars In section 7A(5) of the Principal Act, after "advertisement" insert "(including by means of broadcast or electronic communication)". 2 -- 5 of 37 -- Motor Car Traders Amendment Act 2008 No. 4 of 2008 s. 7 7 Grant or refusal of licences (1) In section 13(3) of the Principal Act, for "a hearing" substitute "an oral hearing". (2) In section 13(4)(m) of the Principal Act, for "29A)." substitute "29A); or". (3) After section 13(4)(m) of the Principal Act insert— "(n) the applicant is or was a partner or director of, or a person concerned in the management of, a partnership or body corporate that has had a claim admitted against the Fund in relation to an act or omission that occurred at the time the person was a partner or director of, or a person concerned in the management of, the partnership or body corporate (unless the applicant has obtained permission under section 29A).". (4) For sections 13(5)(a) and 13(5)(b) of the Principal Act substitute— "(a) is an associate (within the meaning of section 13A) of a person— (i) who has, within the last 10 years, been convicted or been found guilty of a serious offence (whether or not a conviction was recorded); or (ii) who has had a claim admitted against the Fund; or (iii) who the Authority is satisfied would not be a fit and proper person to be a licensee if the person were to apply for a licence personally; or 3 -- 6 of 37 -- Motor Car Traders Amendment Act 2008 No. 4 of 2008 s. 8 (b) is an associate (within the meaning of section 13A) of a body corporate that has as a director or secretary a person— (i) who has, within the last 10 years, been convicted or been found guilty of a serious offence (whether or not a conviction was recorded); or (ii) who has had a claim admitted against the Fund; or (iii) who the Authority is satisfied would not be a fit and proper person to be a licensee if the director or secretary were to apply for a licence personally; or". (5) After section 13(6)(l)(iii) of the Principal Act insert— "(iiia) is or was a partner or director of, or a person concerned in the management of, another partnership or body corporate that has had a claim admitted against the Fund in relation to an act or omission that occurred at the time the person was a partner or director of, or a person concerned in the management of, the partnership or body corporate (unless the person has obtained permission under section 29A); or". 8 Conditions of licence (1) After section 14(2) of the Principal Act insert— "(2A) Without limiting the generality of subsection (1), the Authority may impose conditions or vary or revoke conditions under this section at the request of the Committee.". (2) In section 14(3) of the Principal Act, after "Authority" (where secondly occurring) insert "or the Committee". 4 -- 7 of 37 -- Motor Car Traders Amendment Act 2008 No. 4 of 2008 s. 9 9 Suspension of licence—claims on Fund (1) After section 29(1) of the Principal Act insert— "(1A) If a licence of a partnership or a body corporate is suspended under subsection (1), the licence of any partner or director of the partnership or body corporate is automatically suspended 30 days after the end of the application period for that partner or director. (1B) A licence of a partnership or body corporate is automatically suspended at the end of the notice period for the partnership or body corporate if a person whose licence has been suspended under subsection (1A) is still a partner or director of, or a person concerned in the management of, the partnership or body corporate at the end of the notice period.". (2) After section 29(2) of the Principal Act insert— "(2A) The Authority must give notice in writing of a proposed suspension under subsection (1A) by serving it on the partner or director affected by the suspension. (2B) The notice under subsection (2A) must state that— (a) the person notified may apply under section 29A within 30 days after the date the notice was served on the person for permission to prevent the suspension from taking effect; and (b) if the person does not apply under section 29A for permission or the application is refused or withdrawn, the licence of any other partnership or body corporate will be automatically suspended at the end of the notice 5 -- 8 of 37 -- Motor Car Traders Amendment Act 2008 No. 4 of 2008 s. 9 period for that partnership or body corporate if the person is still a partner or director of, or a person concerned in the management of, the partnership or body corporate at the end of that notice period. (2C) The Authority must serve notice in writing of a proposed suspension under subsection (1A) on a partnership or body corporate that is a licensee if the person who is subject to the proposed suspension is a partner or director of, or a person concerned in the management of, the partnership or body corporate. (2D) The notice under subsection (2C) must state that— (a) a notice has been served on a person under subsection (2A) and the date on which the notice was served; and (b) if an application under section 29A is not made by that person or is refused or withdrawn, the licence of the partnership or body corporate will be automatically suspended if the person is still a partner or director of, or a person concerned in the management of, the partnership or body corporate at the end of the notice period for that partnership or body corporate.". (3) In section 29(3) of the Principal Act, for "This section" substitute "Subsection (1)". (4) After section 29(3) of the Principal Act insert— "(4) Subsections (1A) and (1B) do not apply if the circumstances giving rise to a claim occurred before section 9 of the Motor Car Traders Amendment Act 2008 came into operation. 6 -- 9 of 37 -- Motor Car Traders Amendment Act 2008 No. 4 of 2008 s. 10 (5) In this section— application period in relation to a person, means the later of— (a) the period of 30 days after the date on which a notice was served on the person under subsection (2A); or (b) if the person makes an application under section 29A within the period referred to in paragraph (a), the date of withdrawal or refusal of the application; notice period in relation to a partnership or body corporate, means the period of 30 days after the end of the application period relating to a person who is a partner or director of, or a person concerned in the management of, the partnership or body corporate.". 10 Application for permission where claim on Fund (1) For sections 29A(1) and 29A(1A) of the Principal Act substitute— "(1) This section applies to— (a) a person in relation to whom a claim has been admitted against the Fund; or (b) a person whose licence is subject to automatic suspension under section 29. (1A) For the purposes of this section, person includes a partnership.". (2) In section 29A(3) of the Principal Act, for "The Authority may" substitute "Subject to subsection (4), the Authority may". 7 -- 10 of 37 -- Motor Car Traders Amendment Act 2008 No. 4 of 2008 s. 11 (3) After section 29A(3) of the Principal Act insert— "(4) The Authority may grant an application by a partnership or body corporate whose licence would otherwise be suspended under section 29(1B) if the Authority is satisfied that the granting of the application is not contrary to the public interest.". 11 Insertion of penalty for failing to keep a dealings book (1) In section 35(1) of the Principal Act, for "Every motor car trader" substitute "A motor car trader". (2) At the foot of section 35(1) of the Principal Act insert— "Penalty: 50 penalty units.". 12 Prohibited employees (1) After section 35A(1)(a) of the Principal Act insert— "(ab) is or was a partner or director of, or a person concerned in the management of, a partnership or body corporate that has had a claim admitted against the Fund in relation to an act or omission that occurred at the time the person was a partner or director of, or a person concerned in the management of, the partnership or body corporate (unless the person has obtained permission under section 29A);". (2) In section 35A(1)(d) of the Principal Act, for "jurisdiction);" substitute "jurisdiction).". (3) Section 35A(1)(e) of the Principal Act is repealed. 8 -- 11 of 37 -- Motor Car Traders Amendment Act 2008 No. 4 of 2008 s. 12 (4) For section 35A(3) of the Principal Act substitute— "(3) A motor car trader must not employ any person in any customer service capacity in connection with the motor car trader's business unless the motor car trader has been given a notice in the prescribed form that contains a declaration of the person stating whether or not he or she— (a) has had a claim admitted against the Fund; (b) is or was a partner or director of, or a person concerned in the management of, a partnership or body corporate that has had a claim admitted against the Fund in relation to an act or omission that occurred at the time the person was a partner or director of, or a person concerned in the management of, the partnership or body corporate; (c) has, within the last 10 years, been convicted or found guilty of a serious offence (whether or not a conviction was recorded); (d) is for the time being disqualified from holding a licence; (e) is for the time being disqualified from being employed in any capacity in connection with the business of a motor car trader (regardless of whether or not motor car traders are referred to by that name in the relevant jurisdiction); 9 -- 12 of 37 -- Motor Car Traders Amendment Act 2008 No. 4 of 2008 s. 12 (f) has obtained permission under section 29A or 29B in relation to a matter referred to in paragraphs (a) to (c). Penalty: 50 penalty units. (4) A person is disqualified from being employed in a customer service capacity in connection with a motor car trader's business unless the person gives the motor car trader— (a) before starting employment, a police check that is not more than 6 months old; or (b) within 6 weeks after starting employment, a police check that is not more than 6 weeks old. (5) In this section— customer service capacity means any position that requires the holder of the position to deal with members of the public who are buying, selling or exchanging motor cars or who are seeking to buy, sell or exchange motor cars; police check means a certificate from the Chief Commissioner of Police that indicates that the person is not ineligible to be employed by a motor car trader in a customer service capacity under subsection (1)(b).". 10 -- 13 of 37 -- Motor Car Traders Amendment Act 2008 No. 4 of 2008 s. 13 13 Section 37 substituted For section 37 of the Principal Act substitute— "37 Dealing with young persons A motor car trader must not knowingly, or knowingly purport to— (a) sell or give a motor car to a person who is under the age of 18; or (b) buy, take in exchange or receive possession of, a motor car from a person who is under the age of 18. Penalty: 10 penalty units.". 14 Cooling off period (1) In section 43(1) of the Principal Act omit "used motor car or an off-trade-premises sales agreement of any". (2) After section 43(1A) of the Principal Act insert— "(1B) A motor car trader must provide a purchaser (not being a motor car trader or a body corporate) with a copy of the prescribed form before the purchaser enters into an agreement for the sale of a motor car. Penalty: 10 penalty units. (1C) The prescribed form under subsection (1B) must set out— (a) a statement of the purchaser's rights under this section to terminate the agreement; and (b) an explanation of the effect of a waiver under this section of the right to terminate the agreement; and (c) the form of that waiver.". 11 -- 14 of 37 -- Motor Car Traders Amendment Act 2008 No. 4 of 2008 s. 15 (3) In section 43(2) of the Principal Act, before "prescribed form" insert "waiver in the". (4) After section 43(2) of the Principal Act insert— "(2A) A motor car trader must, subject to and in accordance with the regulations, retain a copy of any prescribed form signed by a purchaser under subsection (2). Penalty: 10 penalty units.". (5) For section 43(4)(a) of the Principal Act substitute— "(a) the vendor under the agreement must pay to the purchaser all money received by the vendor less— (i) in the case of an agreement for the sale of a used motor car or an off-trade- premises sales agreement of any motor car, the sum of $100 or 1 per cent of the purchase price under the agreement (whichever is the greater); or (ii) in the case of an agreement for the sale of a new motor car that is not an off- trade-premises sales agreement, the sum of $400 or 2 per cent of the purchase price under the agreement (whichever is the greater); and (ab) the vendor under the agreement must return to the purchaser any motor car given in satisfaction of any part of the purchase price; and". 15 Aiding and abetting At the foot of section 50A(1) of the Principal Act insert— "Penalty: 60 penalty units.". 12 -- 15 of 37 -- Motor Car Traders Amendment Act 2008 No. 4 of 2008 s. 16 16 New Part 3A inserted After Part 3 of the Principal Act insert— "PART 3A—SALE OF MOTOR CARS BY AUCTION 50C Definitions In this Part— auction means public auction or trade-only auction; trade-only auction means an auction that is only open to motor car traders or special traders (or both) or persons acting on their behalf. 50D Dummy bidding prohibited (1) An owner of a motor car must not make a bid at an auction of the motor car. Penalty: In the case of a natural person: 60 penalty units; In the case of a body corporate: 240 penalty units. (2) A person must not make a bid at an auction of a motor car knowing that the bid is being made on behalf of an owner of the motor car. Penalty: In the case of a natural person: 60 penalty units; In the case of a body corporate: 240 penalty units. Note Section 50G provides for some permissible vendor bids. 13 -- 16 of 37 -- Motor Car Traders Amendment Act 2008 No. 4 of 2008 s. 16 (3) For the purposes of subsection (2), a bid may be found to have been made on behalf of an owner even though it is not made at the request of, or with the knowledge of, the owner. (4) Evidence that a person who made a bid at an auction of a motor car had the intention of benefiting an owner in making the bid is evidence that the person made the bid on behalf of the owner. (5) It is immaterial that the person making a bid in contravention of this section is not in Victoria at the time the bid is made. 50E Offences by auctioneers relating to bidding (1) The auctioneer of a motor car at an auction must not accept a bid at the auction if he or she knows that the bid was made by, or on behalf of, an owner of the motor car. Penalty: 60 penalty units. (2) The auctioneer of a motor car at an auction must not acknowledge the making of a bid at the auction if no bid was made. Penalty: 60 penalty units. 50F Offence to procure dummy bid A person must not procure another person to make a bid at an auction of a motor car that is contrary to section 50D. Penalty: In the case of a natural person: 60 penalty units; In the case of a body corporate: 240 penalty units. 14 -- 17 of 37 -- Motor Car Traders Amendment Act 2008 No. 4 of 2008 s. 16 50G Permissible vendor bids (1) Despite section 50D(2), the auctioneer of a motor car at an auction may make a bid on behalf of an owner of the motor car if— (a) before any bidding starts, the auctioneer orally declares at the auction that the auctioneer may make a bid on behalf of the owner; and (b) in the case of a public auction, immediately before, or in the process of, making the bid, the auctioneer audibly states that the bid is being made on behalf of the owner. (2) It is sufficient compliance with the requirement under subsection (1)(b) to identify a bid as a bid on behalf of the owner if the auctioneer states "vendor bid" in making the bid. (3) It is not sufficient compliance with the requirement under subsection (1)(b) to identify a bid as a bid on behalf of the owner if the auctioneer merely identifies the owner by name without stating that the person is an owner of the motor car. 50H Offence to falsely acknowledge bid A person at an auction of a motor car must not falsely claim to have made a bid or falsely acknowledge that he or she made a bid. Penalty: 60 penalty units. 15 -- 18 of 37 -- Motor Car Traders Amendment Act 2008 No. 4 of 2008 s. 17 50I Contrary conditions are void Any conditions applying to the sale of any motor car at an auction that are contrary to, or purport to restrict or modify, any requirement imposed by or under this Part are void. 50J Auctioneer to keep records (1) The auctioneer of a motor car sold at a public auction must obtain, and keep a record of, the name and address of— (a) the owner selling the motor car; and (b) the purchaser of the motor car. Penalty: 10 penalty units. (2) An auctioneer must make the records kept under subsection (1) available for inspection— (a) on request by an inspector or the Committee; or (b) in the case of a specified vehicle, on request by a member of the police force. __________________". 17 Definition of cash price In section 51 of the Principal Act, for the definition of cash price substitute— "cash price in relation to the sale of a motor car, means the price at which the vendor is willing to sell the motor car for cash (excluding duties and transfer fees);". 16 -- 19 of 37 -- Motor Car Traders Amendment Act 2008 No. 4 of 2008 s. 18 18 Particulars to be displayed (1) For sections 52(2)(a) and 52(2)(b) of the Principal Act substitute— "(a) the name and business address of the current owner of the motor car; (b) if the last owner of the motor car was a motor car trader or a special trader, the name and business address of that trader or special trader; (ba) if the last owner of the motor car was neither a motor car trader nor a special trader and the name and address of the last owner are known to the motor car trader, the words "Name and address available upon request";". (2) After section 52(6) of the Principal Act insert— "(7) In this section commercial vehicle does not include a motor car that has a vehicle category code of NA stamped on its compliance plate (regardless of whether that code appears by itself or in combination with one or more numbers).". 19 New section 53 inserted After section 52 of the Principal Act insert— "53 Motor car traders to provide name and address of last owner A motor car trader must provide the name and address of the last owner of a motor car (if that information is known to the motor car trader) to a prospective purchaser of the motor car on request if the last owner was not a motor car trader or a special trader. Penalty: 10 penalty units.". 17 -- 20 of 37 -- Motor Car Traders Amendment Act 2008 No. 4 of 2008 s. 20 20 Name change for Committee (1) For the heading to Part 5 of the Principal Act substitute— "PART 5—MOTOR CAR TRADERS CLAIMS COMMITTEE AND GUARANTEE FUND". (2) For the heading to Division 1 of Part 5 of the Principal Act substitute— "Division 1—Motor Car Traders Claims Committee". (3) Insert the following heading to section 57 of the Principal Act— "Motor Car Traders Claims Committee". (4) In section 57(1) of the Principal Act, for "Guarantee Fund Claims Committee" substitute "Motor Car Traders Claims Committee". 21 New sections 68 and 69 inserted After section 67 of the Principal Act insert— "68 Committee may require information from parties to a claim (1) For the purpose of obtaining information relevant to the determination of a claim, the Committee may— (a) require a claimant or any other party to a claim to provide any further information that the Committee thinks fit in the manner required by the Committee; or (b) seek advice and information on the claim from any other person or body or source as it thinks fit. 18 -- 21 of 37 -- Motor Car Traders Amendment Act 2008 No. 4 of 2008 s. 21 (2) The Committee may refuse a claim in whole or in part if the claimant does not provide the further information required within a reasonable time of the requirement being made. (3) The Committee may admit a claim in whole or in part if a motor car trader who is party to the claim does not provide the further information required within a reasonable time of the requirement being made. 69 Director, police and public authorities to produce information to Committee (1) The Committee may request a specified public body to provide a report to the Committee in respect of any matter relevant to the determination of a claim. (2) If the Committee obtains information in respect of a claim, the Committee may disclose that information to— (a) the claimant; or (b) the motor car trader; or (c) any other person (including a specified public body)— if the Committee considers it reasonable to disclose the information to that person for the purpose of obtaining information to determine the claim. (3) In this section specified public body means— (a) the Director; or (b) the Authority; or (c) the Roads Corporation; or (d) the Chief Commissioner of Police.". 19 -- 22 of 37 -- Motor Car Traders Amendment Act 2008 No. 4 of 2008 s. 22 22 Reasons for determination (1) For section 71(1) of the Principal Act substitute— "(1) Any person whose interests are affected by a determination of the Committee may request a copy in writing of the reasons for the determination— (a) before or within 14 days after the Committee makes the determination; and (b) on payment to the Secretary of the prescribed fee (if any).". (2) After section 71(2) of the Principal Act insert— "(3) The Committee may give a copy of a determination of the Committee to any person on request.". 23 New section 72 inserted After section 71 of the Principal Act insert— "72 Secretary may take legal proceedings on behalf of Committee (1) Legal proceedings may be taken by or against the Secretary acting on behalf of the Committee in the name of "Secretary to the Motor Car Traders Claims Committee". (2) A person who takes legal proceedings in the name of the Secretary to the Motor Car Traders Claims Committee is taken to be authorised to take those proceedings, in the absence of evidence to the contrary. (3) The Secretary, on behalf of the Committee, may apply to a court or the Tribunal to set aside an order of the court or the Tribunal (as the case requires) against a motor car trader if— 20 -- 23 of 37 -- Motor Car Traders Amendment Act 2008 No. 4 of 2008 s. 24 (a) the Committee has information that is relevant to the matters that are the subject of the order, and that information has not been presented to the court or the Tribunal; and (b) the motor car trader is unable or unwilling to take any further legal action in respect of the order.". 24 Claims on the Fund (1) In section 76(1) of the Principal Act, for "(not being a motor car trader or a special trader)" substitute "(other than a person specified in subsection (6))". (2) In section 76(1)(a) of the Principal Act, for "sections" substitute "section". (3) In section 76(1)(a) of the Principal Act, for "54(2C) and 56(2)" substitute "54(2C) or 56(2)". (4) In section 76(1)(b) of the Principal Act, after "a motor car" insert— ", including, without limitation— (i) the motor car continuing to be subject to a registered security interest which was registered before the motor car trader sold the motor car; or (ii) the motor car being a stolen motor car or having been seized by a member of the police force as a suspected stolen motor car". (5) In section 76(1)(d) of the Principal Act omit "new or unregistered". (6) In section 76(1)(f) of the Principal Act, for "motor cars." substitute "motor cars; or". 21 -- 24 of 37 -- Motor Car Traders Amendment Act 2008 No. 4 of 2008 s. 24 (7) After section 76(1)(f) of the Principal Act insert— "(g) loss has been incurred from a failure of a motor car trader to comply with an agreement to refund the whole or part of a deposit or any other amount following termination of a contract for sale of a motor car; or (h) loss has been incurred from a failure of a motor car trader to deliver a motor car after payment of the purchase price for the motor car.". (8) In section 76(2) of the Principal Act omit "(other than an inventory security interest)". (9) Section 76(3) of the Principal Act is repealed. (10) In section 76(4) of the Principal Act— (a) in paragraph (a) omit "(other than an inventory security interest)"; (b) in paragraph (d) for "special trader; and" substitute "special trader—"; (c) paragraph (e) is repealed; (d) for "failures" substitute "failure"; (e) for "paragraphs (d) and (e)" substitute "paragraph (d)"; (f) for "amount the motor car trader should have remitted" substitute "agreed amount". (11) After section 76(4) of the Principal Act insert— "(4A) The following persons are not entitled to make a claim against the Fund— (a) a motor car trader; (b) a special trader (except as provided in subsection (2)); 22 -- 25 of 37 -- Motor Car Traders Amendment Act 2008 No. 4 of 2008 s. 24 (c) a person who would be a motor car trader if the transactions engaged in by that person were not exempt transactions for the purposes of the definition of trading in motor cars; (d) a public statutory authority; (e) a finance broker within the meaning of Part 4A of the Consumer Credit (Victoria) Act 1995. (4B) In this section a reference to a person who sold a car to a motor car trader includes a reference to a person— (a) who purported to sell the car to a motor car trader; and (b) who has transferred possession of the motor car to that motor car trader; and (c) who, immediately before that purported sale, was a person to whom the motor car was deemed under section 4 to have been leased or sold.". (4C) A reference in subsection (2) or (4) to a security interest does not include— (a) an inventory security interest; or (b) a security interest under an agreement entered into between the financier and a person who the financier knows is a partner or director of, or a person concerned in the management of, a partnership or body corporate that is a licensed motor car trader.". 23 -- 26 of 37 -- Motor Car Traders Amendment Act 2008 No. 4 of 2008 s. 25 25 Committee may take the conduct of parties into account (1) After section 77(1) of the Principal Act insert— "(2) The Committee may refuse a claim if it considers that there has been an unreasonable delay in making the claim. (3) The Committee may refuse a claim by a financier under section 76 in relation to a motor car trader if the financier has not given the required notice to the Director under section 49 in respect of that motor car trader. (3A) When determining a claim or the amount of a claim, the Committee may take into account any matters that it considers relevant, including— (a) the conduct of the claimant and any other parties to the claim; (b) any delay by the claimant in making the claim and whether the delay was reasonable; (c) whether and to what extent the claimant contributed to the loss that is the subject of the claim; (d) any other matter the Committee considers relevant.". (2) In section 77(4)(b) of the Principal Act, after "certificate" insert ", subject to subsection (4B)". (3) After section 77(4) of the Principal Act insert— "(4A) The Committee is not required to conduct an oral hearing to determine whether to admit or refuse a claim. 24 -- 27 of 37 -- Motor Car Traders Amendment Act 2008 No. 4 of 2008 s. 26 (4B) The Committee may defer payment of a claim until the later of— (a) the end of the period within which an application for review may be brought under section 79; or (b) if an application for review is brought within that time, 14 days after the withdrawal or final determination of the application for review.". (4) After section 77(5) of the Principal Act insert— "(6) A certificate issued by the Secretary to the Committee which attests to the payment of a claim admitted against the Fund in respect of a motor car trader is evidence and, in the absence of evidence to the contrary, proof of a debt owed by that motor car trader to the Committee.". 26 New section 77A inserted After section 77 of the Principal Act insert— "77A Committee may postpone its determination The Committee may postpone making a determination on a claim for such period as it considers reasonable and necessary if— (a) prior to a determination being made on the claim, any or all of the matters that are the subject of the claim are the subject of pending legal proceedings; or (b) there is a reasonable expectation that the claim will be resolved between the parties; or 25 -- 28 of 37 -- Motor Car Traders Amendment Act 2008 No. 4 of 2008 s. 27 (c) the motor car is the subject of a police investigation; or (d) the Committee considers it appropriate in the circumstances.". 27 No further claim on refusal At the end of section 78 of the Principal Act insert— "(2) If a claim is refused, the claimant is not entitled to make a further claim against the Fund in respect of the same matter unless the Committee is satisfied that exceptional circumstances warrant the making of the further claim. (3) The exceptional circumstances that the Committee may consider under subsection (2) include, without limitation, the identification of information that was not available when the original claim was made.". 28 Documents to be kept at office premises for 3 years In section 82A(1) of the Principal Act, after "that office" insert "for the previous 3 years". 29 New section 121 inserted After section 120 of the Principal Act insert— "121 Transitional—Motor Car Traders Amendment Act 2008 Despite anything to the contrary in this Act, section 35A (as in force immediately before the commencement of section 12 of the Motor Car Traders Amendment Act 2008) continues to apply to the employment of any person by a motor car trader by whom the person was employed immediately before that commencement.". 26 -- 29 of 37 -- Motor Car Traders Amendment Act 2008 No. 4 of 2008 s. 30 30 New section 122 inserted At the end of Part 8 of the Principal Act insert— "122 Further transitional—Motor Car Traders Amendment Act 2008 The Motor Car Traders Claims Committee is the same body as the Guarantee Fund Claims Committee despite the change in its name by section 20 of the Motor Car Traders Amendment Act 2008.". 31 Amendment of Interpretation of Legislation Act 1984—definition of insolvent under administration In section 38 of the Interpretation of Legislation Act 1984, for the definition of insolvent under administration substitute— "insolvent under administration means— (a) a person who is an undischarged bankrupt within the meaning of the Bankruptcy Act 1966 of the Commonwealth (or the corresponding provisions of the law of another jurisdiction); or (b) a person who has executed a deed of arrangement under Part X of the Bankruptcy Act 1966 of the Commonwealth (or the corresponding provisions of the law of another jurisdiction) if the terms of the deed have not been fully complied with; or (c) a person whose creditors have accepted a composition under Part X of the Bankruptcy Act 1966 of the Commonwealth (or the corresponding provisions of the law of another jurisdiction) if a final payment has not been made under that composition; or 27 -- 30 of 37 -- Motor Car Traders Amendment Act 2008 No. 4 of 2008 s. 32 (d) a person for whom a debt agreement has been made under Part IX of the Bankruptcy Act 1966 of the Commonwealth (or the corresponding provisions of the law of another jurisdiction) if the debt agreement has not ended or has not been terminated; or (e) a person who has executed a personal insolvency agreement under Part X of the Bankruptcy Act 1966 of the Commonwealth (or the corresponding provisions of the law of another jurisdiction) but not if the agreement has been set aside or terminated or all of the obligations that the agreement created have been discharged;". 32 Amendments to other Acts An Act set out in the heading to an item in the Schedule is amended as set out in that item. 33 Repeal of Amending Act This Act is repealed on 1 December 2009. __________________ 28 -- 31 of 37 -- Motor Car Traders Amendment Act 2008 No. 4 of 2008 Sch. SCHEDULE Section 33 CONSEQUENTIAL AMENDMENTS 1. Appeal Costs Act 1998 In section 3(1), the definition of insolvent under administration is repealed. 2 Building Act 1993 In section 221B(1), the definition of insolvent under administration is repealed. 3 Catchment and Land Protection Act 1994 In section 18C(1)(b) omit "(within the meaning of the Corporations Act)"; 4 Commissioner for Law Enforcement Data Security Act 2005 In section 9(b) omit "within the meaning of the Corporations Act". 5 Companies (Administration) Act 1981 In section 11(8)(b) omit "within the meaning of the Companies (Victoria) Code". 6 Consumer Credit (Victoria) Act 1995 In section 3(1), the definition of insolvent under administration is repealed. 7 Emergency Services Telecommunications Authority Act 2004 In section 3, the definition of insolvent under administration is repealed. 29 -- 32 of 37 -- Motor Car Traders Amendment Act 2008 No. 4 of 2008 Sch. 8 Environment Protection Act 1970 8.1 For section 7(3)(g) substitute— "(g) if the holder of the office becomes an insolvent under administration; or". 8.2 In section 10(3)(a) omit "within the meaning of the Corporations Act". 8.3 In section 50AG(3)(a) omit "within the meaning of the Corporations Act". 8.4 In section 50AH(2)(a) omit "within the meaning of the Corporations Act". 9 Estate Agents Act 1980 In section 4(1), the definition of insolvent under administration is repealed. 10 Film Act 2001 In the Schedule, in clause 2(5)(e) omit "within the meaning of the Corporations Act". 11 Fundraising Appeals Act 1998 In section 3, the definition of insolvent under administration is repealed. 12 Gambling Regulation Act 2003 In section 1.3(1), the definition of insolvent under administration is repealed. 13 Geothermal Energy Resources Act 2005 In section 74(h) omit "within the meaning of the Corporations Act". 14 Health Services Act 1988 14.1 In section 65V(3)(d) omit "within the meaning of the Corporations Act". 14.2 In section 134F(4)(d) omit "within the meaning of the Corporations Act". 30 -- 33 of 37 -- Motor Car Traders Amendment Act 2008 No. 4 of 2008 Sch. 15 Information Privacy Act 2000 In section 3, the definition of insolvent under administration is repealed. 16 Instruments Act 1958 In section 114(1), in the definition of insolvent omit "as that expression is defined in the Corporations Act". 17 Introduction Agents Act 1997 17.1 In section 14(3), the definition of insolvent under administration is repealed. 17.2 Section 14(4) is repealed. 18 Liquor Control Reform Act 1998 In section 3(1), the definition of insolvent under administration is repealed. 19 Major Crime (Investigative Powers) Act 2004 In section 24(1)(b) omit "within the meaning of the Corporations Act". 20 Major Crime (Special Investigations Monitor) Act 2004 In section 8(b) omit "within the meaning of the Corporations Act". 21 Mental Health Act 1986 21.1 In section 117G(2)(d) omit "within the meaning of the Corporations Act". 21.2 In section 117H(4)(d) omit "within the meaning of the Corporations Act". 22 Outworkers (Improved Protection) Act 2003 In the Schedule, in clause 4(3)(a) omit "within the meaning of the Corporations Act". 31 -- 34 of 37 -- Motor Car Traders Amendment Act 2008 No. 4 of 2008 Sch. 23 Owner Drivers and Forestry Contractors Act 2005 In Schedule 1, in clause 5(3)(a) omit "within the meaning of the Corporations Act". 24 Police Regulation Act 1958 In section 3(1), the definition of insolvent under administration is repealed. 25 Private Security Act 2004 In section 3, the definition of insolvent under administration is repealed. 26 Professional Standards Act 2003 In Schedule 2, in clause 5(1)(d) omit "within the meaning of the Corporations Act". 27 Prostitution Control Act 1994 In section 3(1), the definition of insolvent under administration is repealed. 28 Public Administration Act 2004 In sections 39(3)(a), 39(5)(a) and 89(8)(a) omit "(within the meaning of the Corporations Act)". 29 Retirement Villages Act 1986 Section 17(3) is repealed. 30 Second-Hand Dealers and Pawnbrokers Act 1989 In section 3(1), the definition of insolvent under administration is repealed. 31 Southern and Eastern Integrated Transport Authority Act 2003 In section 11(1)(b) omit "as defined in section 9 of the Corporations Act". 32 Sustainability Victoria Act 2005 In section 10(2)(a) omit "within the meaning of the Corporations Act". 32 -- 35 of 37 -- Motor Car Traders Amendment Act 2008 No. 4 of 2008 Sch. 33 Transport Act 1983 In sections 9M(d) and 83F(1)(d) omit "within the meaning of the Corporations Act". 34 Travel Agents Act 1986 In section 3(1), the definition of insolvent under administration is repealed. 35 Victorian Civil and Administrative Tribunal Act 1998 In section 3, the definition of insolvent under administration is repealed. 36 Victorian Urban Development Authority Act 2003 In section 23(1)(b) omit "within the meaning of the Corporations Act". 37 Water Act 1989 37.1 In section 100(1)(b) omit "within the meaning of the Corporations Act). 37.2 In section 305FF(4)(c) omit "within the meaning of the Corporations Act". 38 World Swimming Championships Act 2004 In Schedule 1, in clause 6(1)(e) omit "within the meaning of the Corporations Act". ═══════════════ 33 -- 36 of 37 -- Motor Car Traders Amendment Act 2008 No. 4 of 2008 Endnotes ENDNOTES † Minister's second reading speech— Legislative Assembly: 1 November 2007 Legislative Council: 6 December 2007 The long title for the Bill for this Act was "A Bill for an Act to amend the Motor Car Traders Act 1986, the Interpretation of Legislation Act 1984 and other Acts and for other purposes." 34 -- 37 of 37 --