Car park fine

I too am a mere humble law student (and also work a bit in the field).

I was looking over Cheshire and Fifoot and they suggested the de minimis maxim was a bit shaky. I also think that, trivial though it is, the scumbags may argue (in the extremely unlikely event that the matter is taken to court) that getting the ticket was a condition of the contract and not getting one breached that condition fundamentally in their view (in that they gave the driver a payment notice). Therefore, they would be able to get damages* to put them in the same position they would have been in if the contract had been performed and these damages would total... errr... oh wait... that's right... nothing!

The first line of argument (and the most effective in almost all circumstances) in these matters is the owner/driver one. They know (and we know they know) that if push comes to shove, they can't go after the owner in any matter without far more evidence demonstrating who the driver was (and no, a photo of the car in question does not prove who the driver was!) because the owner may not be the driver, and in such cases would not be privy to the contract.

Only if they can prove who the driver was is there a need to move on to arguments about whether the amount of liquidated damages claimed represents a penalty...

* But probably not liquidated damages, because the clause does not represent a genuine pre-estimate of the loss the scumbags experienced in part because the same amount of damages apply regardless of whether you park for two minutes or two weeks. (See Dunlop Pneumatic v New Garage).

Has anyone considered if the info obtained from VIC Roads/RTA is the owner at the time of the offence, and not just current owner.

I have two of the $88 bastards, and I personally have never driven into the car park in question.

I bet Care Park are monitoring this forum!!! LOL!!

IF YOU ARE.... YOU WILL NEVER WIN!!! Just be happy getting money out of the people who are stupid enough to pay it!!!! ...and leave us all alone!!!!! SCUMBAGS!!

This is from the small print signs that are virtually impossible to read - located at the ticket machines. The larger sign, located at the entry (not really possible to stop and read in the car) does not have this information. The signs are inconsistent. (Barkly Square VIC)

4. You agree you are liable for any liquidated damages in accordance with conditions 1-3 and for any damages IAW with condition 7 and 8:
      a.   as the owner of the vehicle; or
      b.   if you are not the owner of the vehicle, as the authorised agent for the owner of the vehicle.
(your liability as the owner under (b) may be disputed by you if it is not correct: for example if the vehicle was stolen or not used with your authority as the owner)


Para 7 & 8 refer to damages to vehicle etc.

The larger sign, continually refers to YOU, ie the driver, not the registered owner.

It is hard to imagine that if you received a NIS as the registered owner, but WERE NOT THE DIVER, how they could possible claim that you entered into a contract with them.

Originally posted by NotGuilty Originally posted by tigermoth .... I have never entered into a ‘contract’ with ANCP regarding the use of their car parks, and as such, am not in breach of contract. It therefore follows that I am not liable to pay damages for the alleged ‘breach of contract’ payment notice wrongfully issued to me. .... You would have entered into a contract with ANCP if the terms of use of the car park were displayed in a reasonably prominent position near the entrance of the car park. Therefore, depending on the facts, pursuing the no contract argument may not be persuasive. A stronger argument would be that quantum of damages is a contractual penalty and that the terms of the contract are unfair under the relevant legislation. If you want to read a short case with respect to what constitutes a contractual penalty at common law, I suggest the NSW Court of Appeal decision of Luong Dinh Luu v Sovereign Developments P/L & 2 Ors (2006) NSWCA 40. In the above case at para [29] the court cites the case of Ringrow v BP Aust [2005] HCA in which the High Court states: "The law of penalties, in its standard application, is attracted where a contract stipulates that on breach the contract-breaker will pay an agreed sum which exceeds what can be regarded as a genuine pre-estimate of the damage likely to be caused by the breach."

Such penalties have to be 'out of all proportion' too per Ringrow [32]. Paying $88 in liquidated damages for parking in a 'free' space is, to my mind, out of all proportion though.

Anyhoo, I've tweaked the proposed letter above to have a nice generic 'take it up with the driver' paragraph that neither confirms nor denies who was the driver in question.

Essentially, there are solid privity, consideration (does getting a ticket from a machine to park in a free spot constitute sufficient consideration?), damages, express terms (Denning's 'big red hand' should be pointing out the onerous liquidated damages clauses) and fair trading arguments to be run.

DIRCT NUMBER FOR ANCP 02 9660 3654 OR ONE OF THE MANY THEY HAVE.
GIVE EM HELL!!

Originally posted by tigermoth Is this the type of thing I should send to D&B: ? WITHOUT PREJUDICE I refer to your letter dated xxxxx I am currently disputing this matter with Australian National Car Parks PTY LTD (ANCP). I absolutely deny that the amount claimed, or any amount at all, is due to be paid to ANCP by me. ANCP appears to have commenced this action on the basis that I was both the registered owner and driver of the vehicle in question at the time the alleged breach of contract occurred. While I admit to being the owner of the vehicle in question on the date the contract was alleged to have been formed between the driver of the vehicle and ANCP, the grounds on which ANCP asserts that I was the driver of the vehicle in question at the time the breach of contract was alleged to have occurred are not clear. As such, ANCP will need to pursue this matter with the driver concerned. I intend to defend any legal proceedings that are brought against me and therefore request that you refer this matter back to your principal. [If you're in Victoria, something along the lines of the following sentences might be worthwhile too... Please inform your principal that if an attempt is made to bring proceedings in any court other than the Victorian Civil and Administrative Tribunal, I will make an application to VCAT under s 112A of the Fair Trading Act 1999 prior to any hearing. This is to ensure that the claim is instead heard as a small claim at VCAT and that no costs can be recovered in accordance with cl 28GG of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998.] In accordance with Part 12 of the ACCC/ASIC debt collection guidelines, I also demand that you cease and desist from further contact with me regarding this matter. If you fail to do so, I may lodge a formal complaint with the ACCC about your conduct, which would be in breach of both the debt collection guidelines as well as the prohibition on coercion and undue harassment contained in s 60 of the Trade Practices Act. Yours sincerely

Some suggested changes for your consideration. I've tried to incorporate a tone of expense and difficulty, with a hint of righteous indignation...

This will get D&B off your back but may provoke ANCP though. However, if you're in Victoria, point out that it will cost them far more to pursue the matter than they will get back in liquidated damages.

I still haven't heard back from ANCP (or D&B) - it's been three weeks.

[EDIT - slotted in a 'Without Prejudice' to limit when your letter can be adduced as evidence, and added a reference to s 112A of the Fair Trading Act to highlight the costs that ANCP will face if they pursue you.]

Edited by surroundfan - 15/September/2009 at 23:17

I have been stung like so many others by these scumbags, being wrongly 'fined' even when I had followed the rules and used a ticket! Unfortunatley, i didn't keep the ticket because there was no fine when i returned to my car, I only got it 10 months later!

After ignoring the initial sue notices I have now received a letter from Dun & Bradstreet (Debt Collectors) for the amount of $163! (from $66)

I'm really unsure of where to go from here. Any help/suggestions would be greatly appreciated.

I received some kind of reminder notice from the subject company yesterday stating that a ticket issued in October, 2007 has still not been paid!!!!??? As such they are requesting immediate payment etc etc!!
I don't remember ever getting this fine..and as a guy who never owes money and have always paid my fines asap, this sounds very very dodgy to me...

very angry at whoever is behind this!

For those people receiving letters from Dun and Bradstreet, you should contact them immediately to inform them that the matter is in dispute and to refer the matter back to their principal. Part 12 of the ACCC/ASIC debt collection code of practice explains what to do in these circumstances:

http://www.fido.asic.gov.au/asic/pdflib.nsf/LookupByFileName/ACCC-ASIC_Debt_Collection_Guideline.pdf/$file/ACCC-ASIC_Debt_Collection_Guideline.pdf

If Dun and Bradstreet records a default against you for failure to pay the amount, then they may breach the Privacy Act 1988 (Cth). Section 18E lists all the information that can be contained in a credit information file. In this context, D&B can only record defaults by 'credit providers' with 'credit' being defined in s 6 as 'a loan sought or obtained by an individual from a credit provider in the course of the credit provider carrying on a business or undertaking as a credit provider, being a loan that is intended to be used wholly or primarily for domestic, family or household purposes.' Loans are considered to be 'a contract, arrangement or understanding under which a person is permitted to defer payment of a debt, or to incur a debt and defer its payment, and includes:
(a) a hire‑purchase agreement; and
(b) such a contract, arrangement or understanding for the hire, lease or renting of goods or services, other than a contract, arrangement or understanding under which:
(i) full payment is made before, or at the same time as, the goods or services are provided [EDIT - added emphasis]; and
(ii) in the case of a hiring, leasing or renting of goods--an amount greater than or equal to the value of the goods is paid as a deposit for the return of the goods.'

Simply put this (unlike say a phone bill) is unlikely to be considered a loan because it was not clear that any purported contract that exists was intended to be a credit contract (see C v Service Provider [2004] PrivCmrA 17 about an unpaid bill for ambulance services - http://www.privacy.gov.au/materials/types/casenotes/view/5945 and R v Medical equipment supplier [2006] PrivCmrA 17 about a default on a bill for medical equipment supplies - www.privacy.gov.au/materials/types/casenotes/view/6789). In addition, I'm pretty sure that at the time of acquiring the information, ANCP had not disclosed that your personal information may be disclosed to a credit reporting agency.

Edited by surroundfan - 14/September/2009 at 11:50

Thought I would add my experience if it helps. Being a first time user of such a system at Barkly Shopping Centre Brunswick last November (almost 1 year), I was issued with a notice for having parked there for 30 to 40 minutes. Needless to say it was upsetting especially as I had parked for such a brief period after purchasing from 2 or 3 stores in the centre. The notice was time stamped within 10 minutes of my walking away from the car, these folks are vultures in my view. As soon as I got home I searched online and uncovered many complaints and similar victims. I found a standard letter on this site and immediately faxed a response to ANCP offering all of my details so there was no ambiguity of who drove, what time I got there and left, what I purchased including receipts with date and time stamps, and challenged them (including how they came up with $66 for 40min when patrons can park there for free if under 3 hours). First response from ANCP basically said something along the lines of "obviously you ignored the sign.." and that I must pay within the 14 days or incur another notice for $88, after which . I wrote back a second and last time as I felt we would only go around circles - I had made my point having provided all necessary information and details upfront and within 2 hours, such that any fair minded and reasonable person would have concluded was grossly inappropriate to pursue further.

There is no doubt in my mind that ANCP hide behind their corporate logo and letterhead (cowards) wanting to scare and intimidate individual consumers, and unfortunately most people do not stand up to them. ANCP will respond with a notice and intention to sue, they are cowards that never put a name to a letter even though it is obvious they had to adapt a generic response to acknowledge specific content. I also contacted Consumer Affairs Victoria and they basically advised me not to pay and that they were dealing with ANCP. I called CAV on three occasions to find out the status of their investigation and discussion with ANCP, each time I was told it was ongoing. In any case it is almost one year now and I have not heard back since their notice of intention sue for $163 - I gave them all details and am happy to see it go to court - something which I doubt, in my view they are cowards and will prey on weakness - you just need to decide whether you want to be weak, or whether you are going to pushback. If no-one pushes back then all power to them - and that would be very sad (and unnecessary).