I hate parking fines, especially as it makes a precedent for people to charge unjustifiable amounts of money to decent hardworking people whom patronise local shopping establishments.
VCAT finds Care Park $88 “fine” a penalty and unenforceable
On 2 May 2014, the Victorian Civil & Administrative Tribunal (VCAT) ordered that Care Park’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)  VCAT 565, Member Wilson therefore ordered that the consumer, Mr John Vico, did not have to pay the $88 amount to Care Park. Member Wilson 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”. The Member also found the $88 amount was “wholly unexplained”, with “no forensic veracity” and “no legal or factual providence”.
Private car parks cannot ‘fine’ consumers
Carefully consider your options if you get a demand for payment from a private car park
A number of car parks operated by private companies operate in Victoria, usually attached to shopping centres. Generally they allow consumers to park for free for up to a certain time period, for example two hours, if they display a ticket on the car. They normally charge for extra time in the car park, at around $3 per hour.
These companies have been issuing demands to consumers who fail to display a ticket on their car. The amount of the demand is usually around $66. This amount increases $88 if the consumer fails to pay within 14 days. 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 for a sum in the region of $300.
No statutory authority to issue fines
Private car park operators do not generally have a statutory authority to ‘fine’ consumers.
Private car park operators base their demands for payment on an alleged breach of contract. That is, these companies say that a consumer enters into a contract to park their car in a company’s car park, where it is a term of the contract to display a ticket. The company alleges that the consumer breaches the contract by not displaying a ticket and the demand for payment represents the loss suffered by the company.
While the legal position is unsettled, we take the view that if there is a binding contract – which may or may not be the case – the certain terms of that contract are arguably unfair and the amount demanded is a penalty rather than a genuine assessment of the company’s loss.
What to do?
Consumers who are being pursued for payment of ‘liquidated damages’ as a result of allegedly breaching the terms of operation of a private car park have a number of options:
1) Do nothing.
If you do nothing and do not write and provide your personal contact details to the company, it will need to apply to the Magistrates Court to obtain your details from Vic Roads.
It may be that this extra step will deter the private car park operator from taking action against you. However, we are aware that some companies have taken such steps and obtained details of drivers in this manner.
In our experience, it is unlikely that a private car parking company will sue you in Victoria for one off parking fines, despite their threats to do so.
However, we have been contacted by consumers who have been sued for racking up hundreds or thousands of dollars worth of fines. In the event that you are sued, you should contact us for help.
2) Write to the company.
If you were not the driver when the fine was allegedly incurred, you can write to the company claiming the ‘fine’ and disclose this fact and identify the driver of the vehicle at the time. The company will then pursue that person for payment. Denying liability on this ground is of course not likely to be successful unless you identify the other driver. Use a template to fight a parking fine from www.lettercrank.com
3) Issue legal proceedings in VCAT.
If you want to get on the front foot, you can issue proceedings in the Victorian Civil and Administrative Tribunal (VCAT). By taking your dispute to VCAT, you allow the matter to be litigated in a less formal and lower cost jurisdiction. However, this also has the disadvantage of bringing the dispute to a determination, when you may never have been sued. Consumer Action has taken one test case to VCAT, which settled before hearing by the car park operator refunding the entire amount of the ‘fine’ paid.
Every fine should be fought, at least before it gets to court, you can always reneg and then pay the fine if initial correspondence is unfruitful. For more information on how to fight speeding fines, how to fight parking fines and letter tempaltes for how to fight fines visit www.lettercrank.com