faq02
Disclaimer: the author of this website is not a lawyer and this site does not constitute legal advice.
Question: Do I have to pay parking infringment notices from private car parking companies?
Answer:
You don't have to automatically pay infringement notices from private car parking companies. In order for the claim from the parking company to stand up in court, the companies must firstly clear three hurdles. These three hurdles also become your defence to the fines in many circumstances.
1. There must be a valid contract present.
2. The company must be able to identify the driver.
3. The company can only claim a reasonable pre-estimate of the damage caused.
First hurdle/ defence one - the contract. There is no specific legislation that covers what a private car park can do if you park unlawfully in a signed car park. The rules are covered by general contract law and laws relating to trespass. Therefore, the parking company needs to prove that a valid contract existed between you and them. The company must have a sign somewhere in the car park (usually at the entrance) stating that by entering into their carpark, you are entering into a contract with them. These signs are sometimes in small writing, and sometimes not near the entrance that you drove into. One of the issues with their liquidated damages claims is that the signs might not be prominently enough displayed and so therefore the driver never entered into a contract with them, because it was not reasonably possible to see a sign when you drove in. Often the signs are not visible at certain entrances, or not visible if you enter the carpark from a certain direction (for example, a left hand turn in, instead of a right hand turn in). If you never entered into a contract (because it was not possible to see a sign the way you drove in) with the carpark company, then you can stop here, and don't have to worry about points two or three below. In either case, you should take photos of the entrance to the car park that you drove into, in case you need them later (to prove that the signs weren't clear). These photos should show the location of the signs in relation to the entrance of the car park . You should also take photos of the area where you parked, and also take closeup photos of the sign with the small print that contains the contract, as well as any other signs in the carpark. The companies can change these signs before writing to you, so if you have received a fine, you should keep copies of you photos in case you ever need them.
Second hurdle / defence two - the driver. Assuming a valid contracts exists (ie. signs and terms and conditions were reasonably visible and clear), then the company can only claim liquidated damages from the actual person who entered into a contract with them. And this person is the driver of the vehicle who parked the car in the car park. If you are just the registered owner of the vehicle and not the driver (perhaps your spouse, adult child, friend or some-else was driving you car) then there is no legal requirement for you to pay any liquidated damages to the company. The private car parking company will likely not know who was driving the car, and simply posts the fine to the registered owner of the vehicle after obtains it from the state authority. However, the private car parking needs to be able prove who was actually driving. They need a photo of the driver in the car park, or some other proof of who was driving. The companies will sometimes send photos of the car to the registered owner of the car in the mail, claiming that this is proof. But in fact, it is not proof at all. Photos of your car in a car park are perhaps proof that your car was parked in their car park, but it is not proof of who parked the car there. If you are simply the registered owner of the vehicle and not the driver who actually parked the car there, then the company cannot claim damages from you, although it may try. The parking company also cannot require the registered owner to name the driver nor can they require the registered owner to provide a statutory declaration of any sort to prove the owner wasn't the driver. In any case, most people don't keep records of who was driving their car, unless they are running a business of some sort. A lot of people are confused by this point because with council parking fines and police speeding fines the law says it is owner onus and that if you, the registered owner, cannot (or will not) identify the driver of the car, then the registered owner must pay the fine. However, with private car parking companies the law of owner onus does not apply so therefore if the company cannot show who was driving at the time the car was parked, then the owner of the vehicle has no legal requirement to pay the fine and no legal compulsion to identify the driver (should they even know who the driver is). In the unlikely event it ever went to court, the burden of proof turns to the parking company who needs to provide proof of who it was that they entered into a contract with. This defence is very effective and is how lawyer Sean Hardy got multiple vehicle owners off the hook once when Care Park tried to take a number of people to court. This is why it is important not to write to the company if you receive an infringement notice on your windscreen. Because if you write to them at that stage, you are admitting you know who parked there (because how else would you have known about the fine on the windscreen unless someone you know told you about it).
Third hurdle / defence three - genuine estimate of loss. Assuming it can be established that you entered into a contract with the parking company, and that they have proven you were the driver (this is most unlikely unless you have written to them telling them you were driving or unless they take photos of all cars entering and leaving), then the parking company may have a valid claim against you. However, it can only claim an amount equal to the damage that you made.
Under contract law, parties are not entitled to impose penalties or fines for breach of contract but can instead only 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 or fine and it becomes invalid.
If the company claims an excessive amount, or cannot justify the amount being claimed, then it becomes a penalty or fine and is not enforceable, because only government bodies can issue fines. In order to stand up in court, the amount the company is claiming from you must be in proportion to the loss they have experienced from you parking in their car park.
In the case of free parking (where you failed to obtain and display a ticket for that free parking), then it is difficult to see how there could be any loss to the company as the parking was free in the first place.
In the case where the parking fee was say $5.00 for a day and you didn't obtain a ticket, then it is hard to see how the parking company's loss could be anything more than $5.00, but they proceed to charge you $66.00, when the most you might owe is $5.00 (or perhaps $20.00 including an administration charge). But hold on, don't send them a cheque for $5.00 or $20.00, because if they are charging $66.00 or an amount that is considered more than the loss they experienced, then then the law considers this to be a fine rather than damages, which makes their claim illegal, in which case you don't need to pay anything at all. If the case went to court, then the company must be able to provide an itemised list as to what damage they sustained from you parking in their car park. If they are not able to prove costs of $66.00 or $88.00, then the case can be thrown out, as it was in John Vico's case in VCAT in 2014.
Refer to the section "penalty clauses" on page 12 of this Consumer Affairs Victoria document. Similar provisions apply in other states. See also page 21 of the same document which refers to National Consumer Law (applying Australia wide) - it says in part c) that "a term that penalises, or has the effect
of penalising, one party (but not another party) for a breach or termination of the contract" is an example of an unfair contract.
Conclusion
This is why private parking companies are rarely successful in suing anyone in court, because of the difficulty that they have in clearing the above three hurdles. And this is also why they are unlikely to take you to court. However, they do occasionally take people to court, so you should get independent legal advice from a qualified practitioner if you are unsure about your rights, or if you receive court papers.
Note
Note that this websites does not condone, nor encourage, people who are aware of the parking rules in a private car park to deliberately breach the terms and conditions. The terms and conditions are put there for a purpose, and that purpose is to ensure there is a regular turnover of vehicles. The car parks are on private land and you should use that land with respect. Once you are aware of the terms and conditions in a private car park, you should follow them. This website will not assist anyone who willfully disobeys the parking rules.