File image. Photo: RNZ / Richard Tindiller
A man hit with a $65 ticket after spending too long in a supermarket carpark has managed to get his fine waived after proving he was not behind the wheel so cannot be held responsible.
The owner of the car claimed that the signposted 'contract' with the parking company to park for no longer than 90 minutes was between the company and the driver of the vehicle.
In this case the driver was a person he had loaned the car to. Luckily for that person, the car's owner successfully fought to keep their name secret, despite the parking company demanding he reveal their identity so the fine could be passed on.
A consumer watchdog said motorists should be wary of parking companies that try to pass on the fines, saying the condition they rely on to do so was meaningless and misleading.
According to a recently released Disputes Tribunal decision, a car registered to the man was parked in a supermarket car in Feburary for 124 minutes - longer than the 90-minute signposted limit.
The man, the parking enforcement company and the supermarket are not identified in the decision.
Under New Zealand contract law, when parking on private property the driver of the vehicle is subject to the signposted conditions of parking. By parking there, it forms a 'contract' between the driver and the enforcer.
But many parking enforcement companies also claim on their signs that the owner of the vehicle is also bound by the conditions of the sign.
As a result, the man received a $65 breach notice as the car's registered owner. However, he argued he was not behind the wheel and provided the tribunal with a signed letter from his boss proving he was at work when the breach occurred.
His claim posed an interesting question for the tribunal; how can the owner of the vehicle be liable to the terms of a contract they have never seen?
The tribunal agreed that, as he was never a party to the 'contract', the vehicle's owner could not be liable.
"Because [the owner] can prove that he was elsewhere when the car was parked in the car park, he is not a party to the contract that was formed when the car entered the car park. The parties to the contract are the owner of the car park and the driver of the car," the tribunal referee found.
The parking company disagreed, pointing to the condition in its signposted conditions which states "you also bind the owner of the vehicle" to the contract.
The tribunal ruled this condition was meaningless and inconsistent with the law.
"It is a fundamental principle of contract law that a contract cannot impose obligations on a person who is not a party to the contract. This is called privity of contract," the referee ruled.
The parking company then went a step further, saying when rental cars break the rules, the rental company always passes the breach notice onto the driver. They said in this case, the owner should reveal who was driving the car.
But the man flatly refused, and the tribunal agreed that he had no obligation to share the details of the driver.
Vanessa Pratley, an investigative writer at Consumer NZ, said motorists should be aware of their rights.
"If the owner of the vehicle is not the driver, like in this instance, there is no acceptance and there is no intention to be legally bound. It means the contract at large is unenforceable against the owner."
She said companies that state on their signs that the registered owner of the vehicle is also bound to the conditions could be preying on the public's naivety.
"It certainly has the potential to mislead owners of vehicles to pay a fine when they are not actually liable to do so. It may be that the operator is relying on the laypersons' knowledge of the law to influence payment of the fine."
This story was originally published by the New Zealand Herald.