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356 The Law HandbookMotor cycles Kilometres Period of warrantytravelledMotor cycle (that has been driven for less than 10,000 (after 6 months less 1 month for each7000 km at the time it is sold by dealer) manufacture) 2000 km that the motor cycle hasbeen driven before sold by dealerMotor cycle (not being a motor cycle that is of such 3000 (after sale) 3 monthsdesign as to be incapable of being registered in NewSouth Wales, or a second-hand motor cycle) that hasbeen driven for 7000 km or more at the time it is soldby dealerMotor cycle (not being a second-hand motor cycle) 5000 (after sale) 3 monthsthat is of such design as to be incapable of beingregistered in New South WalesSecond-hand motor cycle (not being a motor cycle of 3000 (after sale) 3 monthssuch design as to be incapable of being registered inNew South Wales) that has been driven for not morethan 30,000 km and was manufactured not morethan 5 years before the time it is sold by dealerOther motor vehicles Kilometres Period of warrantytravelledMotor vehicle (not being a second-hand motor 20,000 (after 12 months less 1 month for eachvehicle) that has been driven for less than 15,000 km manufacture) 2000 km that the vehicle has beenat the time it is sold by dealerdriven before sold by dealerMotor vehicle (not being a second-hand motor 5000 (after sale) 3 monthsvehicle) that has been driven for 15,000 km or more atthe time it is sold by dealerSecond-hand motor vehicle that has been driven for 5000 (after sale) 3 monthsnot more than 160,000 km and was manufacturednot more than 10 years before the time it is sold bydealerThe effect of this scheme is that there is nodealer warranty where a motor cycle hastravelled more than 30,000 km or is morethan five years old, or for other vehicles, thevehicle has travelled more than 160,000 kmat the date of sale, or is more than 10 yearsold. There are some exceptions to itemswhich must be repaired. These includeconsumable items, such as batteries andtyres, as well as chains and sprockets formotor cycles. The obligation does not extendto damage occasioned in an accident or bymisuse by the driver (not necessarily theowner), or arising from the use of thevehicle for racing or rallying. In addition, itdoes not extend to superficial damage topaintwork or upholstery, if that were apparenton a reasonable inspection at the time ofsale. Finally, it does not cover any defectdescribed either in an inspection report, orin a notice attached to a second-hand vehicle.The warranty obligation of a dealer must beset out in a notice given to the purchaser atthe time of sale.There are some provisions of more generalapplication. A notice in the prescribedform must be attached, and essential informationon the form includes the identificationof the vehicle with the inclusion of theregistration and the Vehicle IdentificationNumber, the distance the vehicle has travelledand the price demanded at the timethe notice is affixed. The notice must also setout the sum for which the vehicle is actually
11 Consumers 357sold and the distance it has covered at thetime of sale. If the vehicle sold is excludedfrom the statutory warranties set out above,this must be set out on the notice. A similarnotation must be on the notice attached to avehicle being sold at auction.Complaints about motor vehicles form amajor area of consumer disputes, both inrespect of alleged breaches of the dealer’sobligation to repair under the Motor DealersAct, and alleged breaches by the dealer ormanufacturer of the vehicle under the consumerprotection provisions of the Competitionand Consumer Act. In the first instance, ifthe consumer is unable to reach a satisfactoryarrangement with the dealer, the purchasershould contact a Fair Trading Centre.Should that not be effective, a claim may belodged with the NSW Civil and AdministrativeTribunal. Such disputes are dealt within the Consumer and Commercial Divisionof the NSW Civil and AdministrativeTribunal. It may be worth noting that whilethe upper limit which that Tribunal mayaward on a consumer claim is currently$40,000 (in respect of applications filed on orafter 9 May 2014), the usual limits do notapply in relation to a consumer claim arisingfrom the supply of a new motor vehicle (ie avehicle that does not come within thedefinition of a “second hand motor vehicle”in the Motor Dealers Act, and such definitionincludes demonstrator motor vehicles) thatis used substantially for private purposeswithin the meaning of the Motor VehiclesTaxation Act 1988 (NSW). There is no maximumsum which may be ordered where theclaim concerns such a vehicle.There are some other obligations on motordealers. A roadworthiness certificate musthave been obtained within the month priorto the sale. There is also a guarantee of title.A purchaser who buys in good faith from adealer gets an unencumbered title to it onpurchase, even if there is money outstandingunder a prior finance arrangement.The protections given in a purchase froma private person are much more limited. Theconditions of merchantability and fitness forany purpose made known at the time thecontract was formed, implied by the Sale ofGoods Act, s 19, remain. None of the consumerprotection provisions of Pt 8 of thatAct, or those in the Australian ConsumerLaw, apply. There is no cooling-off period,the warranties given under the Motor DealersAct do not apply, and there is no guaranteeas to title. A purchaser in these circumstancesshould have a mechanical inspectionbefore agreeing to buy, and carry out aREVS check.Importantly, the law relating to the rightsof consumers regarding the sale of motorvehicles by licensed dealers, or the repair ofvehicles by licensed repairers, will changewhen the Motor Dealers and Repairers Act2013 (NSW) is proclaimed. This legislationwas assented to by NSW Parliament on27 November 2013, but has yet to beproclaimed as Regulations to the Act are inthe process of being finalised. It is anticipatedthe legislation will come into effect inlate 2014. The legislation will replace theMotor Dealers Act and the Motor VehicleRepairs Act 1980 (NSW). Although the dealerwarranty provisions of the new Act remainbroadly consistent with the Motor DealersAct, an important change in the new legislationis that consumers will be able, prior tocommencing legal proceedings, to make acomplaint to NSW Fair Trading about “unjustconduct” by dealers (including thefailure to comply with the dealer warrantyon the vehicle, or failing to adequatelyrepair the vehicle) and NSW Fair Tradingwill have the power to order that the dealerperform repairs to the vehicle.[11.160] Extended warrantiesA common practice amongst dealers is tosell to a purchaser an extended warranty. Asales technique is to offer such a warranty asa means of closing a sale at a particularprice. These are not warranties offered bythe dealer, but by a separate company. Theynormally limit the protection given by excludingliability not just for consumableitems such as tyres and batteries, but alsofor damage resulting from overheating theengine, and for failure to follow a manufacturer’smaintenance schedule. If the warrantyprovider refuses to repair the vehicle,or repairs it inadequately, in circumstances
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