Rules for private car park businesses

If you operate a private car park, you must obey the Australian Consumer Law (ACL). You need to know the rules when designing your advertising and business management practices.

You can’t:

• mislead or deceive customers
• use bait advertising (advertise a discount rate, only to have minimal car spaces available)
• use unfair contract terms
• behave unconscionably.

Terms and conditions

Your terms and conditions should:

• be displayed prominently, legibly and in full, at every entrance to your car park, as well as being available online or in hard copy
• use plain English, not legal jargon
• contain only clauses that are upfront and easy to understand
• not include any unfair contract terms.

Contract terms may be considered unfair by a court if they:

• allow you to remove or move a car you believe to be in breach of your terms and conditions, and that limit your liability for damaging the vehicle
• suggest a consumer who enters your car park has automatically agreed to your terms and conditions
• seek to broadly limit liability (e.g. saying you have no, or limited, liability unless subject to the ACL)
• allow you to change the terms and conditions without notice
• suggest a consumer must reimburse you fully for all claims that you incur and losses you suffer that are caused by their actions
• suggest you are not liable for theft or damage to a vehicle and/or the contents.

Terms in a standard form consumer contract may be deemed unfair by a court if they:

• don’t fairly divide the parties’ rights and obligations
• aren’t necessary to protect your business interests
• would cause loss to the consumer.

Fees and charges

You may set your own fees and charges.

If you choose to issue a payment notice for a breach of your terms or conditions, you must not represent the notice as a fine.

Only governments or courts can issue fines.

To enforce the payment notice, you can:

• take action through the courts
• justify the breach of contract claim with evidence
• prove that your demand for payment is equal to your loss from the alleged breach of contract
• secure a ruling that your customer did not meet the terms and conditions of the contract and is liable to pay.

Disputing payment notices

If you have issued a payment notice, your customer may dispute it.

We strongly recommend you take all such disputes seriously, and treat each fairly and on its individual merit.

You must not threaten the customer, or misrepresent your right to payment for breach of contract.

Advertising

You need to make sure that your advertising and marketing techniques do not mislead or deceive.

You should always:

• think about your audience
• use plain English
• clearly state all key terms of the agreement
• make sure important contract terms are not in fine print.

For example, it could be considered misleading if you display a sign stating the maximum cost of parking without a valid ticket is $200, and you charge a customer $250.

Disclaimers and fine print

You may use discounts to attract customers. However, you must clearly state the terms and conditions associated with claiming the discount.

If you use fine print, make sure:

• an asterisk or some other symbol or descriptor is used to refer customers to the conditions
• the fine print does not change the meaning given by the more prominent advertising.

You must make the important facts of the advertisement (the real terms and conditions) clear and readable.

If you are not clear, you might mislead consumers or breach the ACL and be fined.

For example, it could be misleading if you advertise an early bird rate for $18*, but don’t state the customer must enter the car park before 8am.

Bait advertising

If you offer parking at a discounted rate, customers must have a reasonable chance of taking up the offer.

You must make it clear in the advertisement if:

• there is a limited number of car spaces available
• the discounted rate is only available for a period of time.

For example, it could be bait advertising if you:

• advertise a discounted rate
• only have minimal car spaces available
• know that you are likely to get many more customers wanting to use the discounted rate than you have discounted parking spaces available.

Pricing

Where you give part of the price of your service, you must also give a single total price at least as prominently. The single price must be the minimum cost to the customer as you calculate it at the time of advertising.

If a component cost can’t be calculated because it will vary between customers, you should explain the way the amount will be calculated and the minimum cost.

Remember when advertising your service that:

• all compulsory component costs must be included in the advertised single price
• any optional changes excluded from this total must be truly optional
• the price shown for any optional extra must include all relevant components for which the consumer will be charged.

For example, you advertise an online early bird parking rate of $20 per day, but every customer must pay an extra $3 for booking online. You must either:

• include this extra amount in the total
  or
• display it as prominently as you display the $20 per day rate.