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01 September 2014

Private car park 'fines/payment notices'

Use this fact sheet if you:

have received a 'fine' or payment notice after parking in a private car park
want to know whether the 'fine' can be challenged

Car park 'fines'

A number of car parks are operated by private companies in New South Wales. The car parks are:

Usually attached to a shopping centre
Have signs about parking
Allow for a few hours of free parking and then charge per hour
Require a ticket to be displayed on your car

If you exceed the amount of time allowed for free parking without paying the hourly rate, or you park without displaying a ticket, you may be issued with a ticket on your car. The amount of the fine is usually around $66. This amount increases to $88 if you fail to pay within 14 days. If you continue to ignore the requests for payment, the companies instruct lawyers and/or debt collectors to pursue the money and further sums are demanded. Eventually court action may be threatened.

Letter from Roads and Maritime Services (RMS)

You may have received a letter from RMS telling you that your name and address details will be released to an operator of a car park (including Care Park Pty Ltd or Australian National Car Parks Pty Ltd).
RMS was ordered under a 'preliminary discovery order' by the Court to release this information to the car park operator. RMS has tried on several occasions to resist the car park operator's applications to release this information, but has been unsuccessful, so by law they must give the car park company your details. For more information about 'preliminary discovery orders' see http://www.rta.nsw.gov.au/gipa/privacy/discovery.html.
If you received a letter from RMS, it is likely that you will soon receive a letter from the car park company demanding payment of a parking 'fine'.

No legal authority to issue fines

Only the government can issue 'fines' so if a private car park describes the ticket as a 'fine' this is arguably misleading. Payment notices that are issued that look like fines may also be misleading.

How can the car park company issue a ticket?

The private car park company posts signs in the car park listing the conditions for parking there. They argue that by parking in the car park you entered into a binding contract. If you do not display a ticket or do not pay for your parking, then they argue that you are in breach of that contract.
While the legal position is complicated, we take the view that even if there is a binding contract - which may or may not be the case - the terms of that contract are unfair and the amount demanded is a penalty rather than a genuine assessment of the private car company's loss.

What can I do if I receive a 'fine'?

If you are being pursued for payment of 'liquidated damages' as a result of allegedly breaching the terms of operation of a private car park you have a number of options:

Do nothing.

This is not recommended. The private car park may start legal proceedings against you in court and add further fees for doing so.
Write to the company.

You could send a letter to the private car company disputing the 'fine'. You should use the matters listed in the section below - 'What should I write in the Defence?' to raise a dispute.

If the dispute is that you were not the driver you will probably be asked to identify who was the driver of the car. It is your choice whether to identify the driver or not. If you can identify them it will make it easier for you to successfully deny that you were the driver. If you have evidence and witnesses that you were somewhere else that will also be helpful. Of course if a lot of time has passed you may not know who the driver was.
Lodge a complaint in the Consumer, Trader and Tenancy Tribunal (CTTT).

The CTTT is a low cost consumer-friendly Tribunal. There are no costs awarded against you if you lose. This means that the worst-case scenario is you will have to pay the 'fine'. You may do a lot better than that and get the 'fine' waived.

If the car park company has threatened to start court proceedings you can stop this happening by lodging a claim in the CTTT. If you go to the CTTT first to dispute the 'fine', the private car park company cannot then start legal action against you in the Local Court.

Once the CTTT makes a decision it is binding and can be registered in the Local Court and enforced. An appeal can only be made to the District Court. Make sure you comply with all CTTT deadlines and attend all hearings listed.

You can dispute the 'fine' by completing a General Division Application form using the same information that is listed below in the section - 'What should I write in the Defence?'

For the CTTT form, information on fees and more information about the CTTT go to www.cttt.nsw.gov.au.
Pay the debt.

To avoid any risk of legal proceedings you can pay the amount demanded in full. Alternatively, you could offer a partial payment by way of full and final settlement. Any offer of a partial payment should be in writing and headed 'without prejudice'. The offer should clearly state that the amount is offered in full and final settlement of the debt claimed.

What can I do if legal action is started in the Local Court against me?

If the car park company starts legal action you will receive a court document called a Statement of Claim.
If this happens it will be too late to lodge a complaint in the CTTT. If you don’t defend the claim within 28 days the car park company can get an order from the court that you must pay the money (called a default judgment) and can take action against you to enforce the judgment. Additional costs (including court costs and legal fees) will be included in the judgment.
You can defend the proceedings by filing (completing and lodging) a Defence within 28 days of the date you were served with the Statement of Claim. If you lose the case you may have to pay the legal costs of the private car park. You should therefore seek legal advice immediately if you receive a Statement of Claim.
If you want to complete a Defence yourself see the section - 'What should I write in the defence' - below.

What should I write in the Defence?

In the 'Pleadings and Particulars' section of the Defence form you can use the following statements:

I deny that the car park company (who will be the 'Plaintiff' in the Statement of Claim) is entitled to make the claim against me.
The amount claimed by the Plaintiff constitutes a penalty and is unenforceable and void.

PARTICULARS
I refer to and rely upon the general law and say that the Plaintiff seeks to recover damages in excess of a reasonable pre-estimate of loss suffered as a result of the breach
The amount of parking fees claimed by the Plaintiff is extravagant, unconscionable and grossly disproportionate to any loss (if any) that the Plaintiff suffered.
If the fines were for you overstaying the hours permitted in the car park you can say:

The loss suffered by the Plaintiff (if any) would be an amount commensurate with [insert the hourly rate you were required to pay] per hour for each hour of overstaying.
If the fines were for not displaying your parking ticket you can say:

The fines do not represent a loss, if any, the Plaintiff would have suffered as parking was free for the first [insert number of hours the parking was free].
If the sign was not clearly visible or you were unaware of the conditions you can say:

I was unable to read/or understand the terms and conditions because [state reason].
If you were not the driver at the time the fine was issued you can say:

I was not the driver at the time the fine was issued.

Can I complain about the car park's actions?

You can lodge a complaint with NSW Fair Trading:
Phone: 13 32 20
By Post: NSW Fair Trading, PO Box 972, Parramatta NSW 2124
Online: www.fairtrading.nsw.gov.au (Click on'Lodge a complaint' and select 'Lodge a general complaint online')

Will my credit rating be affected?

A debt owed due to breach of contract is not a debt which can appear on your credit report. It will be listed on your credit report if the private car park obtains a court judgment against you.

Where can I get more help?

For more information about how to defend a claim in court, including how to complete a Defence and for copies of this form, visit the LawAssist website (click on the link 'Representing yourself in court? Visit LawAssist' and select 'Debt - small claims'.

Ref: http://www.legalaid.nsw.gov.au/publications/factsheets-and-resources/private-car-park-finespayment-notices