Other consumer protection laws

Contributed by Ian Macdonald and Su Mahalingham and current to 1 September 2005

DOOR TO DOOR SALES

The WA Door-to-Door Trading Act 1987 gives consumers who buy goods sold door to door special “rights” to rescind (cancel) the contract within 10 days (or six months if some requirements have not been met). This right to rescind is unique to this type of contract.

Where a contract is rescinded, any amount paid by the consumer must be refunded and the goods returned. Any damage to the goods (other than depreciation or damage due to normal use or beyond the control of the consumer) must be borne by the consumer.

By “returning the goods” the Act states that the goods need only be made available for collection at the place of receipt. If they are not collected by the supplier within 28 days, then the goods become the property of the consumer.

The Act imposes strict rules that govern the sales behaviour of the salesperson, including the need to provide official identification, the hours during which the salesperson can visit, the format of the documentation and even the order in which the documentation is to be given to the consumer.

MOTOR VEHICLES

The purchase by consumers of second hand motor vehicles is one of the areas from which the Department of Consumer and Employment Protection (DoCEP) most commonly receives complaints from consumers. The Motor Vehicle Dealers Act 1973 (WA) seeks to protect consumers by the following:

Licensing of car dealer, yard managers and sales persons

The Act provides that no person may engage in the business of selling second hand motor vehicles unless licensed to do so by the Motor Vehicle Dealers Licensing Board.

Yard managers and salespersons must also obtain a licence from the Board. They must be over 18 years of age and be of good character and repute and be fit and proper people to hold such licences. They must understand any obligations placed on them by the Act and must be employed by a person licensed under the Act.

Statutory Warranty Period
Age of car entitlement	Km travelled at time of sale	Warranty
Not more than 10 years	Not more than 150,000	3 months or 5,000km (whichever happens first)
Between 10-12 years	Between 150,000 – 180,000	1 month or 1,500km (whichever happens first)
More than 12 years	More than 180,000	Nil
Age of motorcycle	Km travelled at time of sale	Warranty
Not more than 8 years	Not more than 80,000	3 months of 5,000km (whichever happens first)
More than 8 years	More than 80,000	Nil

Display of information

The Act is designed to assist potential purchasers of used cars by requiring the dealer to affix to the car certain minimum information about the vehicle.

Warranties

Section 34 provides for a statutory warranty by the dealer for any defect that is likely to make the vehicle un-roadworthy or unserviceable. The defects must be repaired by the dealer at the dealer’s expense. It is up to the consumer to bring a fault to the dealer’s attention. The dealer does not have to use new parts in the repairs. The vehicles must be put into a reasonable condition having regard to its age.

Some vehicles do not have this warranty. Vehicles excluded from the warranty are vehicles sold for less than $4,000, and some exempted vehicles. Exempted vehicles include:

• Motor vehicles built to carry goods or materials used in trade, business or industry and which have only one row of forward facing seats. This excludes most utilities and panel vans. Dual cab vehicles can be covered;
• Buses and vehicles licensed to carry more than eight passengers;
• Caravans built to be towed by a motor vehicle; and
• Single rider motorcycles built for off-road use.

Statutory warranties relate to the age of the vehicle, and the number of kilometres it has travelled, in accordance with the above table. The warranty does not cover faults with the battery, tyres or accessories (such as air conditioner, radio-cassettes or compact disc players) that do not affect roadworthiness or serviceability. The dealer can also exclude liability for a particular fault by displaying a prescribed notice describing the fault with an estimate of its repair.

Full details of the types of vehicles covered by warranty, and the defects covered, are shown on the DoCEP website which is www.docep.wa.gov.au.

The Motor Vehicle Dealers Act Warranty/Trade Practices/Fair Trading Acts Warranty

Although the Motor Vehicle Dealers Act gives certain rights, these rights have a fairly short use by date. It is essential to note that the warranties provided by the Motor Vehicle Dealers Act as described above in no way remove the rights of the consumer to rely on the TPA/Fair Trading Acts. So if, for example, the Motor Vehicle Dealers Act warranty period has expired (that is, the car has travelled more than 5,000 km) then if it exhibits a defect, although the consumer has no claim under the Motor Vehicle Dealers Act, the consumer can still seek the protection of the Trade Practices/Fair Trading Act and argue, if the facts will support the claim, that the car is not fit for its purpose or is not merchantable.

Of course, the consumer can at any time, even while the Motor Vehicle Dealers Act is still running, elect to use the TPA/Fair Trading Acts rights rather than those afforded by the Motor Vehicle Dealers Act. The advantage of this would be that under the Motor Vehicle Dealers Act, the obligation of the dealer is to repair the fault. It may well be that the consumer does not want the fault corrected, but rather to get rid of the car or alternatively perhaps get the car corrected and also seek compensation.

The TPA provides a greater smorgasbord of remedies for the consumer, including cancelling the contract and affording compensation, and in many instances may well be a more satisfactory way of claiming some kind of remedy for defects. However, it should be noted that, if all that the consumer wants is the car to be fixed, then certainly the Motor Vehicle Dealers Act provides a user-friendly way to get some kind of solution.

Most disputes are resolved by the consumer asking the Commissioner for Fair Trading to negotiate with the dealer. Other remedies include going to court. There is also a provision for the Commissioner to hold a “determination” hearing; any order made can be enforced as a court order if necessary.

Exclusion clauses

It is not possible for a consumer without the prior written consent of the Commissioner to waive any rights conferred by the Motor Vehicle Dealers Act.

THE CHATTEL SECURITIES ACT

Under the WA Chattel Securities Act 1987 the Department of Consumer and Employment Protection operates the Register of Encumbered Vehicles (REVs). The Register records any financial encumbrances (interests) that third parties such as finance companies may have over motor vehicles, trailers, caravans, boats or semi-trailers. This information is available by telephoning 1300 304 024 and seeking information, using the registration number, engine number, or chassis/vehicle identification number (VIN) for a motor vehicle, or the hull identification number (HIN) for a power boat. REVS can also be accessed on-line at: bizline.docep.wa.gov.au/revs.

Before buying, a certificate should be obtained from REVS stating that no third party has a security interest in the vehicle or vessel concerned, that is. there are no mortgages, hire-purchase or lease agreements in relation to it. The holder of the REVs Certificate has proof of clear title in any dispute with a finance company. If the register is wrong, the purchaser can get compensation, but only if a certificate is obtained. A phone inquiry will not be enough to be entitled to compensation. The certificate can be purchased by phone, using a credit card.

Because the Register determines financial encumbrances rather than ownership, a purchaser may still lose ownership to the original owner, for example, if a car or boat is stolen. In these circumstances, the purchaser can sue the seller for any loss, although the seller may not have enough assets to make this worthwhile.