Victorian Consolidated Legislation

Motor Car Traders Act 1986 - SECT 47

Powers of Magistrates' Court and Tribunal

47. Powers of Magistrates' Court and Tribunal





(1) Upon any application to the Magistrates' Court or the Tribunal for an
order for rescission, the Court or the Tribunal, after hearing the applicant
and affording any other person likely to be affected by any order made under
this section an opportunity of being heard-

   (a)  may order that the sale be rescinded; and



   (b)  may make such further or consequential orders (including an order as
        to the payment of the costs of the application) as are necessary or
        desirable.

(2) The power to make further or consequential orders conferred on the Court
or the Tribunal by subsection (1) extends to the making of orders concerning
any collateral credit agreement.

(3) In making orders under subsection (1), the Court or the Tribunal must so
far as is possible apply the following principles in the following order-

   (a)  that there should be returned to the purchaser any money or other
        consideration paid or provided by the purchaser under any agreement
        for the sale (not being money or other consideration obtained by the
        purchaser under a collateral credit agreement associated with the sale
        for the purpose of being so paid or provided);

   (b)  that, if any person has provided finance under any collateral credit
        agreement associated with the sale (in this section called a lender)-

   (i)  there should be returned to the lender any money or other
        consideration paid by the lender by or on behalf of the purchaser; and

   (ii) the collateral credit agreement should be discharged to the extent
        that it was entered into for the purposes of purchase of the motor
        car;

   (c)  that, if a motor car trader acted on behalf of the vendor in the
        making of the sale, the vendor should be indemnified by the motor car
        trader against any loss suffered by the vendor in consequence of the
        rescission;

   (d)  that the lender should be indemnified by the vendor or any motor car
        trader who acted on behalf of the vendor (as the case requires)
        against any loss suffered by the lender in consequence of any order
        made concerning the collateral credit agreement but not exceeding the
        amount of the interest that has accrued under the collateral credit
        agreement;

   (e)  that the motor car should be returned to the vendor or, if there is a
        collateral credit agreement secured by a mortgage.

   (i)  if the motor car is in the purchaser's possession, that the motor car
        should be delivered to the lender; or

   (ii) if the lender has possession of the motor cars or obtains possession
        by an order under this section, that the lender should be entitled to
        retain possession until the lender has been paid the amount for which
        the vendor is liable to the lender under paragraph (d).

(4) Upon an order rescinding the sale being made, the rights and obligations
of the parties to any agreement relating to the sale or under any agreement
relating to a collateral credit agreement associated with the sale shall be as
provided for in the order or in any order ancillary to or consequential upon
that order but it is not a bar to the making of an order that the parties
cannot be fully restored to the positions that existed prior to the sale.