If the firm's in Victoria, and it's a genuine legal firm but fake solicitor, the Legal Services Board may be a good avenue for complaint, rather than CAV.
http://www.lsb.vic.gov.au/
You could also make a compliant to the LSB where firms threaten legal action in circumstances where the success of such action is extremely doubtful.
Just another addition to this endless list of complaints in regards to those silly Notices from ANCP...
Had already received 2 letters from them demanding payment for the "fine" given on 28/11/2007 (2 years ago!!) @ St.Kilda's Safeway carpark which I don't remember neither getting nor actually being there physically on that day!!
So, after reading through both threads of this forum, I'm taking the most common advise from you guys which is to IGNORE the clowns from ANCP!.. Will be paying a visit to Vic Consumer Affairs later on today just to lodge yet another similar complaint to those they might be having by now...
Meanwhile, will be keeping my eye on this forum and further developments on this matter. Good luck to all!! :)
I suspect I can guess the answer you'll get from their 'appeals' process. Something along the lines of 'After careful consideration, we must unfortunately reject your appeal. Please pay $88 within 14 days or the amount charged will increase by $75 to cover legal costs.'
Paradoxically, writing to them is likely to increase, rather than decrease, the likelihood of them taking legal action. It is also fraught with risks.
This is because:
1) you indicate what your defence is likely to be
2) if you'd written to them in the same terms as your post, you would have confirmed who the driver was, meaning you'd lose one of your key defences
Therefore, I'd staple the pay and display ticket to the payment notice and file it away for that time in the next two weeks to two years when the threatening letters roll in.
To future posters: If you post on here, do not admit you were driving. This is to ensure that if PPCs link your post back to you, you won't have admitted anything. Always use neutral terminology such as 'The driver of the vehicle parked in the car park'.
I am not a lawyer and this post does not constitute legal advice.
I just had a thought about all this. Isn't ANCP etc racking up rather large bills with collection agencies and lawyers? If no one ends up paying them hey wont be able to pay their legal bills:)
i suspect all these debt collectors and solicitors are partner with ANCP, as they take commissions if they victims ended up pay the "fines".
I guess first they hand it to one party, if the party didn't collected the "fines", then they will hand it over to another party to chase the "fines" and so on....
Australian National Car Parks Scam: Don't pay those fines! They're illegal
Posted August 15th, 2009 by Mulligrubs
Australian National Car Parks have set up a scam which is being investigated by the Office for Fair Trading. Many of these car parks display a sign stating that parking is free for the first two and a half hours. If you are in a hurry, you won't notice that it also states you are supposed to get a ticket and place it near your windscreen before walking away, even if you only plan to do two minutes' shopping. You will then be issued with a 'fine' for $88, but the letter which you receive will be very intimidating. In large capital letters at the top, it states 'NOTICE OF INTENTION TO SUE'. It will state that the matter is in the hands of debt collectors and the amount you will be required to pay is $163. Many people are paying the $163, terrified that a bailiff will knock on their door. On paying the $163, ANCP pocket the whole amount and do not refund the $75 that you have overpaid.
It is clear that ANCP have discovered there is more money to be made out of $88 'fines' than from normal parking fees. My guess is they make next to nothing out of parking fees accrued after the two and a half hours, but a fortune out of the $163 'fines'.
The Office for Fair Trading states this:
A driver using a private car park enters into a contract with the operator to abide by the terms and conditions stated on signs. The signs must be displayed prominently.
Under contract law, parties are not entitled to impose penalties for breach of contract but can seek "liquidated damages".
"Liquidated damages" are defined as a reasonable estimate of the damage suffered as a result of the contract being breached — if a court finds the estimate is not reasonable it is defined as a penalty and becomes invalid.
This is different from parking tickets given by councils or police which have legislated authority to issue "fines".
If damages are sought by a private car-park operators but resisted by the driver the issue may end up in court if the company successfully obtains the driver's address through the RTA database.
The company then has to demonstrate how the damage it suffered equals the damages it is seeking.
As a private company, ANCP does not have legal authority to administer fines.
When people use its car parks, they enter into a contract with the company, meaning any subsequent payment notices are demands arising from a breach of that contract.
Last August, then NSW fair trading minister Diane Beamer urged drivers to "exercise extreme caution" in ANCP car parks because the company could have been engaging in "improper, misleading and deceptive conduct".
As they are being deceptive and misleading, DO NOT PAY THESE FINES. IT IS A SCAM. THEY WILL THREATEN TO TAKE YOU TO COURT BUT IT'S AN EMPTY THREAT AS THEY DON'T HAVE THE GROUNDS TO WIN ANY CASE.
Joing the crowd and showing support. I too have received 3 letters from ANCP first two claiming I had a ticket year and half ago which I don't even remember ever being there. The third letter came with "NOTICE OF INTENTION TO SUE"or pay $163. I find the tone of the letter really intimidating. I hate to have to deal with the Credit rating issues.
I read all the above posts and could not see anyone actually been taken to court. Has anyone been taken to court and if so what happened ?
I hate to have to deal with the Credit rating issues.
There is no "credit rating issues." A claim for damages for breach of contract is not a notifiable event for the purposes of the Privacy Act and will therefore not affect your credit rating. If the ANCP had issued a bill for failing to pay the parking fee, for example, a bill for $3.00 and then you failed to pay that, they could then notify a credit reporting agency after the required period of time. However, this has not occurred.
Originally posted by EarthMan
I read all the above posts and could not see anyone actually been taken to court. Has anyone been taken to court and if so what happened ?
None of the posters on this thread have been taken to court and as far as I know no one else has been taken to court yet. If this does eventuate and I doubt it, I will be happy to draft a standard notice of defence.
As the proud owner of several ANCP parking (not-)fines for Free Parking I look forward to seeing if and when ANYONE, EVER, ANYWHERE ends up in court. I'd like to know exactly how much these guys are willing to spend on postage before they let up. They must have worked out how many letters they can afford to send out based on the percentage of people who cave and pay up their $88 - or whatever the latest amount is, I've stopped actually reading their letters though I think the last one gave me 48 hours notice for something or other.
I replied to one of their letters, which they ignored, and basically I don't have time to faff about writing letters to some evil morons who are trying to get my money. I should be charging THEM for the stress and inconvenience of having to open all their litter.
Hmmm, now there's a thought, maybe I should invoice THEM and threaten legal action...
Thanks for everyone's comments, Together with Stand!
Like everyone here I have become a victim of ANCP (i received the notice on 16/10/09). I have written a letter in response to their claims and I'm sure i will not make any action until they really take me to courts.
Which i don't mind going to court and argue about it, considering i have other parking infringement experiences with REAL PARKING OFFENSES!!
Location was Fairfield Forum Car Park
Cost: $163 (not $88 or $66).
They have decided to increase the cost at their own experience.
Whoa! Now that is an interesting turn of events. Because no one has had a hearing yet. I think you are the first. So did they summon you to attend court and then you got it moved to VCAT?
How did it wind up that you are having a VCAT hearing with them? Please let us know.
Cheers.
CapnKernel, when you say "copped one", what do you mean?
Did you cop a 'parking charge', a threatening letter or court papers? If it was either of the first two, you only had to ignore...
Did you do a pre-emptive strike by applying to VCAT? If so, I would respectfully suggest that it wasn't really necessary because the PPCs such as Care Park are unlikely to jeopardise their entire business model by taking this matter to court and running the risk of losing.
At any rate, now that you're heading to VCAT rather than the Magis Court, you can argue that if the $88 doesn't represent a penalty, it includes lots of the PPC's costs, which cannot be recovered under cl 28GG of Schedule 1 of the VCAT Act. See The Motel Pty Ltd v Allbern Printing Services Pty Ltd [2005] VCAT 2924 for more...
Edited by surroundfan - 22/October/2009 at 10:07
I am not a lawyer and this post does not constitute legal advice.
I got a letter form D&B so duly called the number and was told the fine was for me parking in Woolworth car park for too long. Thinking that was a bit odd (There is no woolworths in broadway sydney) I asked for exact address cited where the "fine" was issued for. Then went onto Google maps, Thanks street view, and there was not a shopping centre at the mentioned address it was an apartment block. I even drove by on way home as it was close to home and it is an apartment block.
So now not only do i have no idea of how got this fine as I never received one. D&B are providing incorrect information. As I see it calling it a fine is incorrect and I even asked, you mean like a parking fine? and lady said yes exactly like that. Any idea if there is a complaint mechanism when the debt collector is well short of better description lying to chase payment? Outside of the fact I am not paying it.
Dave
Go back through this thread mate, and the first thread (linked at the beginning of this one). You will find enough information to reassure you that it is NOT a fine. They do not have the statutory authority to issue fines.
I'm not a lawyer, but Id say D&B are definitely misleading and misinforming you on that matter. Good idea to write down the name of the person you spoke to and the time you spoke to them if you can.
Shame you didn't find this forum before contacting them. So far the best strategy seems to be to ignore ANCP and all their representatives. Still hang in there. I would ignore further correspondence from them. Stay in touch. The more information we can collate on this forum the more empowered we will all be in dealing with this.
I received one of those useless pieces of paper (litter) from those bastards at Australian Nazi Car Parks (ANCP).
At first, I was really peeved but after researching and finding this forum, I am happy for ANCP to incur the expense of employing those low life parking nazis with no corresponding income (if no one pays their extortion demands).
Australian Nazi Car Parks, go to hell.
Also, what happened to the Today Tonight story on this subject that was promoted for Thursday 22/10/09, it did not appear.
CapnKernel, when you say "copped one", what do you mean?
Did you cop a 'parking charge', a threatening letter or court papers? If it was either of the first two, you only had to ignore...
It was a payment notice. I can't really say much more than that at this time. However I will let y'all know what happens after the hearing.
Originally posted by surroundfan
you can argue that if the $88 doesn't represent a penalty, it includes lots of the PPC's costs, which cannot be recovered under cl 28GG of Schedule 1 of the VCAT Act.
Now that's interesting. I had been going on this ACCC ruling:
The ACCC considered that the arbitrary nature of the 20 per cent flat rate meant this clause could be a penalty clause and, to that extent, may go beyond Bramalco's right to claim an amount to cover the company's loss incurred as a result of a consumer breaking the contract.
The ACCC's view is that liquidated damages would encompass any losses incurred by Bramalco directly as a result of a cancellation but would not necessarily extend to a claim covering general business costs incurred by Bramalco, such as advertising or administration.
(italics are mine)
But the ACCC is not a court. That VCAT case is much stronger.
I'm not sure how successful the argument will be regarding the bill containing costs, but it's worth a shot if all else fails (and in this case, 'all else' constitutes a lot of arguments in your favour).
In my bumf errr... I mean vitally important reminder notice, ANCP stated that the $88 represented "loss of revenue (where advertised) together with related costs [my emphasis] of issuing the payment notice following with identifying you and contacting you as the registered owner/driver". The costs of identifying and contacting a person are likely to have involved legal costs.
Hence, my strategy would be something along the lines of:
1) ANCP has not adduced any evidence to suggest you were the driver of the vehicle. Any putative contract is with the driver, not the owner. (Case: ANCP v RTA). If not the driver of the vehicle, the owner is not privy to the contract. (Case: Trident General Insurance v McNiece)
2) If it is held that you are the driver on the balance of probabilities, it was the land owner, not ANCP, that granted the contractual licence to enter their land. Hence, no contract could be formed with ANCP. [Not sure about this, but worth a shot. Don't dwell on it though]
3) If it held that a contract was validly entered into, the contractual term containing the liquidated damages was not validly incorporated into the contract because it was unreasonable and not prominently displayed. (Case: J Spurling v Bradshaw. You may want to get photos to show this in VCAT.)
4) If the term is held to have been validly incorporated, it was an unfair penalty within the meaning of sections 32W and 32X(c) of the Fair Trading Act 1999 (Vic) in that it penalised the consumer but not the supplier for a breach or termination of the contract.
5) If the term is not held to be an unfair penalty, it is nevertheless a penalty at common law because it did not represent a genuine pre-estimate of the loss experienced by ANCP at the time of the alleged breach and was out of all proportion to the actual loss suffered by ANCP. (Cases: Dunlop Pneumatic v New Garage Motor, BP v Ringrow)
6) If the amount of damages claimed is held not to be a penalty, it nevertheless contains a large amount of ANCP's costs in pursuing this matter. (Case: The Motel v Allbern)
Edited by surroundfan - 24/October/2009 at 11:30
I am not a lawyer and this post does not constitute legal advice.
The claim for liquidated damages must represent a reasonable estimation of damages for breach at the time of the breach. For I cannot imagine that there would be any consequential damages in the present case. It cannot represent administrative or legal costs associated with pursuing the defendant as these are not damages.
The ANCP state, as quoted in surroundfan's post, that the $88.00 represents "loss of revenue (where advertised) together with related costs of issuing the payment notice following with identifying you and contacting you as the registered owner/driver". This explanation is interesting for two reasons. Firstly, the loss of revenue is relatively small. Secondly and more importantly, at the time the payment notice is issued, ANCP will not know whether they will need to pursue the offender or not, so how could the $88.00 include future costs?
In my opinion it was unwise of CapnKernel to bring a case against Care Park. The most you can hope for is a declaratory judgment which is discretionary at common law. In addition, as you are bringing the case you have the burden of proof.
I am not saying you won't win. As a defendant, you have an excellent case, but as an applicant, you have a less than excellent case.
For everyone's information I've included a copy of a Care Park payment notice front and back, and a copy of the back of a receipt for payment ticket that was provided to me. The parking fee is $0.50 per hour.
OK After a few more threatening letters from D&B etc, I've now received a letter from A'beckett stating that I have till the 2nd Nov to pay then the client will have no choice but commence legal proceedings to recover the debt blah blah blah. Which is similar to all the other crap I've been receiving. They're just worded differently.
What a dirty lot of scumbags. I don't have any legal training whatsoever and am using you guys as my support not to freak out. I'm just going to sit this out and fight it.
As if I haven't got enough to worry about without this crap landing in my letter box on a weekly basis. I'm fighting a bloody persistant illness and it's made me more determined not to let these scumbags win. Bring it on ANCP. This old bird is in fighting mode.
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