MOST OF US ARE RESIGNED to parking fines levied by councils, but where do you stand with private car parks?
A number of car parks are operated by private companies, often attached to shopping centres. In many cases, they allow a motorist to park for a specified time period for free; others have a fee scale that applies from the time you enter the car park. In some instances, they demand that you display a ticket on the car and then charge once you exceed the free period (typically two hours).
These companies have been issuing payment demands to consumers who fail to display a ticket on their car. The amount of the demand in Victoria (it varies in other states) is usually around $88, but the consumer is advised that if they pay within 14 days, they only pay $66. Should the consumer continue to ignore the requests for payment, the companies instruct solicitors and/or debt collectors and further sums are demanded. Eventually court action is threatened when the sum reaches around $300.
To issue the debt collection or solicitor letters, private car park operators must first obtain the personal details of vehicle owners. They do this by accessing records held by the state’s relevant motor registration authority, with the help of the Courts.
It is a controversial practice and a legally grey area.
Since 2012, private car park operators in New South Wales have been banned from accessing the personal details of registered car owners. In October 2013, the Greens and ALP tried to introduce laws in the Victorian parliament that would prevent VicRoads from providing personal information to private car parks operators.
The legislation wasn’t supported by the government, and therefore the amendment wasn’t successful – meaning it was ‘business as usual’ for car park operators who continue to issue payment demands.
But a recent tribunal finding has once again cast doubt on the practices of private car parks. In May 2014, the Victorian Civil & Administrative Tribunal (VCAT) ordered that a private car park operator’s claim of $88 of “liquidated damages” in relation to breach of a car park contract was a penalty – and therefore unenforceable.
In the case of Vico v Care Park Pty Ltd, (Civil Claims) [2014] VCAT 565, it was ordered that the consumer, Mr John Vico, did not have to pay the $88 amount to Care Park. The tribunal did not accept Care Park’s evidence in relation to how it justified the $88 amount, and found that its claim for loss was “overstated”. It also found the $88 amount was “wholly unexplained”, with “no forensic veracity” and “no legal or factual providence”.
VCAT’s conclusion once again throws doubt on whether a car park payment notice is enforceable.
It is highly questionable that consumers issued with payment notices by private car parks are liable for the full amount claimed. A private company has no legal right to impose a fine, however, they can demand reasonable expenses for recovering a debt. Consumers who have been issued with a payment notice could write a letter to the relevant operator, citing this finding and asking them to demonstrate that the amount claimed is justifiable, relates to their costs and is not an unlawful penalty.
Consumers who are threatened with legal action by a car park operator should seek legal advice.
seniordriveraus.com recommends seeking legal advice before taking action. Information contained in this article is for guidance only