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Odd parking fine loophole gets Aussie driver out of $300 penalty

Parking at a Woolworths earned this driver a penalty notice, but legal experts have revealed why they don't need to do a thing.

A driver in Melbourne was recently hit with an infringement after parking their car at a spot at Woolworths. This was the only spot they could get all-day parking as there was ongoing construction where they lived.

The private parking lot only allows motorists to park for free if they're there for less than 90 minutes. The driver returned to find a slip on their Toyota informing them they had "overstayed", with a fine that could balloon to $300.

But, after flipping the infringement over, the car owner found a very confusing clause.

Fine inset over a Woolworths parking lot.
A man parking in a Woolworths lot in Melbourne found a penalty notice on his windscreen, but after flipping it over, realised he didn't need to pay. (Google Maps/Reddit)

Have you been hit with an unfair fine? Email stew.perrie@yahooinc.com

"This is not a fine," the slip read. "The operator is claiming the Amount Due as liquidated damages as a result of You breaching the Parking Terms.

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"The Parking Terms are displayed at the Car Park. You accepted the Parking Terms by leaving the vehicle in the Car Park. By accepting the Parking Terms, You agreed to pay the Amount Due by way of liquidated damages if You breached the Parking Terms."

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The driver was warned that if the amount wasn't paid within 28 days then the operator could "commence legal proceedings" against the driver for "breach of contract".

Do I have to pay this parking fine?

The Consumer Action Law Centre told Yahoo Finance that private parking companies can't fine you because they don't have the "statutory authority"; that power only rests with authorised government bodies like the police or council parking inspectors.

"These companies have been issuing demands to consumers who fail to display a ticket on their car," the law centre said.

Parking fine
The infringement on the slip indicates that it is definitely 'not a fine'. (Source: Reddit)

"The amount of the demand is usually around $66. This amount increases to $88 if the consumer fails to pay within 14 days. Should the consumer continue to ignore the requests for payment, the companies instruct solicitors or debt collectors and further sums are demanded.

"Eventually, court action is threatened for a sum in the region of $300."

How can I contest an illegitimate parking fine?

In reality, these penalties are not really "fines". The legal pursuit will come as operators will try to allege that you've broken a contract that was agreed upon when you entered the parking garage, the law centre said.

If you don't want to pay? Their advice: "Do nothing."

"In our experience, it is unlikely that a private car parking company will sue you in Victoria for one-off parking fines, despite their threats to do so," they said.

The law centre said you could also pay the fine, contact the operator, or issue legal proceedings in the Victorian Civil and Administrative Tribunal (VCAT).

A 2014 case saw VCAT declare Care Park's claim of $88 of liquidated damages against driver John Vico for breaching the contract of the car park was a penalty and, as a result, was unenforceable.

Vico said the $88 charge was "wholly unexplained" and there was "no forensic veracity" to the claim.

'Clearly disguising they aren't fines': Warning for motorists

The Sydney Criminal Lawyers said infringements issued by private car parking operators look "very similar" to fines issued by government agencies because they are "clearly attempting to disguise the fact that they are not actually fines".

"According to basic contract law, however, the car park company might have a tough time recovering damages (ie money) from you," it said. "This is because it would be difficult to prove that you were the driver at the time, and they incurred a loss due to your actions."

Melbourne-based traffic court barrister Sean Hardy added that the company's argument that you've broken a contract with them is "flimsy".

"The contract cannot lawfully claim a sum that is greater than the reasonable loss suffered by the company as a result of the breach of contract," he said, while estimating that any reasonable loss wouldn't be more than $10.

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