Western Australian Current Acts Western Australian Current Acts (1) Where —
(a) a
vehicle has been sold by a dealer, not being a financier or car hire operator,
to a purchaser; or
(b) a
vehicle has been sold by a financier or car hire operator to a purchaser and a
dealer, not being a financier or car hire operator, arranged or procured the
sale of the vehicle,
and the Commissioner
is of opinion that the vehicle as so sold —
(c) was
substantially different from the vehicle as represented to the purchaser; or
(d) was
a vehicle in relation to which a notice was, pursuant to section 33, required
to be displayed but in relation to which no such notice was displayed,
the Commissioner may
apply to the Magistrates Court for an order for rescission of the sale of the
vehicle.
(2) An application
under this section shall set out the grounds on which it is made.
(3) After hearing the
Commissioner or a representative of the Commissioner and affording any other
person likely to be affected by any order made under this section an
opportunity of being heard, the Magistrates Court may —
(a)
order that the sale be rescinded; and
(b) make
such further or consequential orders (including an order as to the payment of
the costs of the application) as to it seem necessary or desirable.
(4) The power to make
further or consequential orders conferred on the Magistrates Court by
subsection (3) shall extend to the making of orders concerning any collateral
credit agreement associated with the sale.
(5) In making any
orders under subsection (3), the Magistrates Court shall so far as is possible
apply the following principles in the following order:
(a) That
there should be returned to the purchaser —
(i)
any moneys or other consideration paid or provided by him
under any agreement for the sale (not being moneys or other consideration
obtained by him under a collateral credit agreement associated with the sale
for the purpose of being so paid or provided); and
(ii)
any moneys or other consideration paid or provided by him
under any collateral credit agreement associated with the sale.
(b) That
—
(i)
where the vehicle was sold by a financier or car hire
operator, that financier or care hire operator; and
(ii)
any person who has provided finance under any collateral
credit agreement associated with the sale,
should be indemnified
by the dealer referred to in subsection (1) against any loss suffered by the
financier, person or car hire operator in consequence of any order made by the
Magistrates Court.
(c) That
the vehicle should be returned to the dealer, the financier or the car hire
operator.
(6) Notwithstanding
any Act or law to the contrary, upon an order rescinding a sale being made,
the rights and obligations of the parties under any contract or agreement
relating to the sale or under any contract or agreement relating to a
collateral credit agreement connected with the sale and, where applicable, of
any dealer referred to in subsection (1) who is not such a party, shall be as
provided for in that order or in any order ancillary to or consequential upon
that order and without limiting the generality of the foregoing it shall not
be a bar, to the making of an order rescinding a sale, that one or more of
those persons cannot be restored to the position or positions that existed
prior to the sale.
(7) In this section
collateral credit agreement means a contract or agreement for the provision of
credit by a person other than the dealer referred to in subsection (1) for the
purposes of the sale of a vehicle where that contract or agreement was
arranged or procured by that dealer.
[Section 41A inserted: No. 49 of 1979 s. 21;
amended: No. 4 of 2002 s. 29; No. 59 of 2004 s. 141.]