Obligations of the seller and purchaser

powered by CoolJargon
 

Car sales must follow set procedures. The processes for buying from a motor trader or from a private seller are described. The seller must provide a roadworthiness certificate less than 30 days old. Roadworthy certificate checks do not search for mechanical problems. What to do about dangerous faults found in a car after purchase.

Where to find the procedures

The procedures relating to the sale of motor cars, transfers of registration and roadworthiness certificates required at the time of sale are regulated by the RSV Regulations, MCT Act and the Motor Car Traders Regulations 2008 (Vic) (“MCT Regulations”). The following procedures apply to registered vehicles.

If the seller is a motor car trader and the purchaser is not

The purchaser must:

1 complete and sign a transfer of registration application form and give it to the seller; and

2 give the seller the transfer fee payable.

Penalty: 10 pu (g 75 RSV Regulations)


NOTE

If you give the motor car trader written notice (at or before the time of purchase) that you do not require the trader to act as your agent for payment of stamp duty on the transfer of registration application, the above purchaser’s obligations do not apply. The purchaser’s obligations outlined below under “If neither party is a motor car trader” apply instead.


The seller must:

1 give you a current roadworthiness certificate before you take possession of the car (s 42A(1) MCT Act; penalty: 50 pu); and

2 lodge with VicRoads within 14 days after selling the car:

athe completed transfer of registration application;

bthe transfer fee payable; and

cevidence that a current roadworthiness certificate has been obtained.

Penalty: 10 pu (rr 71, 72 RSV Regulations)


NOTE

If you give notice under regulation 73(1) then the above seller’s obligations do not apply. The seller’s obligations outlined below under “If neither party is a motor car trader” apply instead. Also, the seller’s obligations above do not apply to a car disposed of in accordance with a court order or other legal process.


3 give the purchaser a prescribed form setting out cooling off rights before the purchaser enters into the sales contract; and

4 as soon as possible after the sale, give you a copy of:

athe sale contract (for information on what must be contained in the contract, seePrescribed particulars”);

bany extended warranty documents;

cthe prescribed notice (required by s 52 MCT Act) in the correct form (depending on whether the warranty under s 54 MCT Act applies or not); and

dany defect notice (under s 55 MCT Act).

Points (c) and (d) above only apply for used cars.


NOTE

These documents must also be retained by the trader for at least seven years (penalty: 50 pu (ss 83C, 83A MCT Act; reg 26 MCT Regulations)). They are dealt with more extensively in “Is there a warranty?” and “How to get out of the contract”).


5 for used cars, if the trader has agreed to:

ahave defects in the car repaired; or

bsupply and fit a part or accessory; or

cmake an arrangement or pay money in relation to the registration, duty or insurance,

densure that the terms of such an agreement are written in the sale contract.

Penalty: 10 pu (r 22 MCT Regulations)

If you suffer loss as a result of a motor car trader’s failure to provide a roadworthiness certificate, or failure to pay transfer or registration fees or stamp duty, you may make a claim to the Motor Car Traders’ Guarantee Fund to seek compensation for the loss (s 76 MCT Act).

If the purchaser is a motor car trader and the seller is not

The seller must: immediately after the disposal, complete and sign a transfer of registration application form and give it to the purchaser.

Penalty: 5 pu (rr 71, 72 RSV Regulations).


NOTE

This does not apply to a car disposed of in accordance with a court order or other legal process.


The purchaser must:

1 as soon as possible after acquiring the car, complete and sign the transfer of registration application form obtained from the seller; and

2 lodge with VicRoads within 14 days:

athe form; and

bthe stamp duty and transfer fee payable.

Penalty: 5 pu (r 75 RSV Regulations)


NOTE

The above purchaser’s obligations do not apply to a car acquired in accordance with a court order or other legal process. In this event, the purchaser must obtain, complete and sign a form of notification of a court order or other legal process and lodge this form and the stamp duty and transfer fee with VicRoads within 14 days after acquiring the car. Penalty: 5 pu (reg 76).


3 as soon as possible after the sale, give the seller a copy of:

athe sale contract; and

bany extended warranty documents.


NOTE

These documents must also be retained by the trader for at least seven years (penalty: 50 pu) (ss 83C, 83A MCT Act; reg 26 MCT Regulations). They are dealt with more extensively in “Is there a warranty?” and “How to get out of the contract”.


If you suffer loss as a result of a motor car trader’s failure to pay transfer or registration fees or stamp duty, you may make a claim to the Motor Car Traders’ Guarantee Fund to seek compensation for the loss (s 76 MCT Act).

If neither party is a motor car trader

The seller must: immediately after the disposal, do the following:

1 complete and sign a transfer of registration application form and give it to you; and

2 give you a current roadworthiness certificate (unless you are the seller’s spouse or domestic partner).

Penalty: 5 pu (reg 71 RSV Regulations)


NOTE

The seller’s obligations above do not apply to a car disposed of in accordance with a court order or other legal process.


The purchaser must:

1 as soon as possible after acquiring the car, complete and sign the transfer of registration application form obtained from the seller; and

2 lodge with VicRoads within 14 days:

athe form;

bevidence that a current roadworthiness certificate has been obtained; and

cthe stamp duty and transfer fee payable.

Penalty: 5 pu (reg 75 RSV Regulations)


NOTES

(2)(b) above does not apply to the acquisition of a light trailer, specially constructed car or recreation motor cycle, or if you are the seller’s spouse or domestic partner (reg 75(4)).

The above purchaser’s obligations do not apply to a car acquired in accordance with a court order or other legal process. In this event, you must obtain, complete and sign a form of notification of a court order or other legal process and lodge this form and the stamp duty and transfer fee with VicRoads within 14 days after acquiring the car (penalty: 5 pu) (reg 76).


Joint purchasers

Cars can only be registered in the name of one person (aged 17 years or more) or a corporation. Joint owners must therefore nominate one person for registration as the car’s registered operator (reg 22 RSV Regulations). A joint owner can transfer registration to another joint owner (reg 78).

Roadworthiness certificates

Subject to certain exceptions (see regs 72, 75 RSV Regulations), all registered cars must be roadworthy when sold or otherwise disposed of.

Section 42A of the MCT Act provides that a person must not sell a registered car (this includes a car with suspended registration) without a current roadworthiness certificate unless either the buyer is a licensed motor car trader or a special trader or the car is sold at a public auction by a licensed auctioneer acting on behalf of the owner (penalty: 50 pu). A roadworthiness certificate is current if it has been issued within the past 30 days (s 42A(4)).

In order to be sold without a roadworthiness certificate, a car’s registration must be cancelled before the sale (unless the sale falls within one of the exceptions above).

You should think carefully before buying a used car that is being sold without a roadworthiness certificate. Subject to certain exceptions (see reg 12 RSV Regulations), it is an offence to drive an unregistered car (s 7 RSA). Before registering a car, VicRoads may request evidence verifying that the car complies with the standards for registration (reg 15 RSV Regulations). In the case of a used car, this is usually a roadworthiness certificate (reg 15(b)).

Insurance companies also generally require proof of roadworthiness before they will insure a car. If the car has significant problems that need to be fixed in order to get a roadworthiness certificate (such as rust), the cost of these repairs may well exceed the car’s purchase price!

Warning about roadworthiness certificates

A roadworthiness certificate is primarily a test of the safety of a car, not its mechanical soundness. If you want to check the mechanical soundness of a car, you should get it inspected by an organisation such as the RACV or the VACC.

If you believe that the roadworthiness certificate misrepresents the condition of the car, you should get another roadworthiness certificate from a licensed tester within 30 days of the date of the certificate provided by the seller. You should then go back to the original tester to discuss any faults that were verified by the second test. If you take the car along, you should ask the tester to contact the tester’s area supervisor to discuss the car.

If the faults appear to be substantially dangerous, the tester refuses to cooperate or you suspect the car was actually not at the original tester’s premises on the day the certificate was issued (i.e. that the car was not inspected), you should contact VicRoads. Your complaint will be assessed and referred to VicRoads Roadworthiness Supervisors if necessary. Although VicRoads cannot force the tester to rectify the faults or compensate you, it can penalise the tester or cancel their licence (s 15A RSA; reg 211 RSV Regulations). If you want to pursue the tester for compensation, you should seek legal advice about taking civil action at VCAT or at court.

If the seller is a motor car trader and the roadworthiness certificate obtained by you is significantly different from the one provided by the trader, then you could use the new certificate as evidence to try to force the trader to cancel the sale contract. You can also complain to Consumer Affairs Victoria (seeFurther assistance”).