ANCP

In this reminder letter from ANCP you will notice ANCP use the words "By entering and remaining in the car park, drivers are deemed to have read and accepted the Contractual Terms and Conditions". In the Victorian Supreme Court case of Consumer Affairs Victoria versus Parking Patrols and Ace Parking, the court made a judgement that merely entering a car park is not sufficient to establish that a contract had been entered into, because the driver may not have seen or read the terms and conditions.

In this notice of intention to sue, it says "you, the owner, are liable on the basis that the vehicle was driven by you. If this is not correct, a statutory declaration may be sent with the notice below". ANCP have no right to assume you were driving and if you weren't and ANCP are not a statutory body. It goes on to say: "In order to avoid these additional costs of recovery of this debt, you must immediately pay the amount of $440.00." This is questionable, because ANCP's letter implies it is a forgone conclusion that the person who received this letter will have to pay the cost of recovery. However, in order for this person to have to pay for the cost of recovery, ANCP would firstly have to commence legal proceedings and serve the proceedings on the vehicle owner. The vehicle owner would then have the opportunity to defend themselves. If the vehicle owner won the case, then no additional costs would be payable. Finally ANCP's demand says, stamped in red: "Pay immediately to avoid costs". Again this is questionable, because if the car owner was not liable for this fine, there would be no costs to avoid.

In this letter from ANCP's old debt collectors, Dun and Bradstreet it says "the judgement debt can be recovered by the following actions". However, there is no judgement debt. If they said "a judgement debt, if obtained ...", it wouldn't be so bad, but it doesn't say that. It says "the judgement debt" which implies to me there has already been a judgement by a court (but, in fact, there hasn't been any judgement at all).

Here is another letter of demand that comes on Michael Roper's letterhead. You will note that in this letter, ANCP readily admits they have no proof the owner was in fact driving the car. See ANCP's statement "as you are the Registered Owner of this vehicle, it is assumed that you were the driver." In contract law, the person alleging the debt requires proof of a liability, and mere assumption is insufficient. This letter also demands a statutory declaration if the owner wasn't the driver. This letter from ANCP contrasts with the ACCC Debt Collection Guidelines, which states that creditors cannot demand an alleged debtor produce a statutory declaration to prove that they are not responsible for the debt.

In this letter of demand from the new ANCP debt collectors (ARC), they say "Failure to comply may result in the commencement of legal proceedings without further notice and will include recoverable legal costs and interest to be paid by the defendant". This again is questionable because legal costs and interest would only be payable by the defendent if ANCP won the case. In most cases ANCP withdraw the case at the last minute in which there would be no recoverable legal costs and no interest payable. Also, if you won the case, then you would not have to pay any costs, and in fact, ANCP may have to pay your legal costs.