Car park fine

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.

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.

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!!

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).