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Legal Advice - Abandoned Cars on Common Property

Towing and clamping

Ultimately, whether the vehicle is owned by a resident or non-resident is irrelevant in relation to the rights of the Owners Corporation to tow it away or apply a wheel clamp to it.

Section 90C of the Road Safety Act 1986 (“RS Act”) provides that: (1) A person, not being—

(a) a police officer; or

(ab) an authorised person under Part 6A; or

  1. (b)  the sheriff or any other person authorised by law to execute a warrant against the motor vehicle; or

  2. (c)  a person authorised to do so by or on behalf of the owner or driver of the motor vehicle—

must not detain or immobilise (whether by wheel clamps or any other means) a motor vehicle that has been parked or left standing (whether attended or not) on land to which this section applies.

-Liability limited by a scheme under Professional Standards Legislation-

23 Milton Parade, Malvern VIC 3144 T: (03) 9042 2070 Fax: 03 9832 0610 Web: www.clplawyers.com.au

CLP Lawyers Pty Ltd ABN 52 608 368 341

For the avoidance of doubt, the common property of an Owners Corporation is land to which this section applies and the Owners Corporation is not an authorised person for the purposes of this section.

Accordingly, in relation to wheel clamping, the law is clear and the Owners Corporation cannot do it to any vehicle. As an aside, we note that even if it were allowed, clamping the wheel does not achieve the primary aim of having the car moved off the common property and the Owners Corporation would not have the legal right to demand any payment in return for the clamp being removed.

While there may be an argument that an Owners Corporation that authorises a towing company to tow a vehicle away is not technically detaining or immobilising the vehicle, as it is not the party carrying out the act of towing, in our view this is a weak argument. The towing company does detain the vehicle when it tows it (arguably as an agent of the Owners Corporation), so the Owners Corporation is essentially authorising and facilitating a breach of section 90C of the RS Act by engaging the towing company.

Further, both towing and applying a wheel clamp will likely constitute a trespass to property and the Owners Corporation will be liable for any damage caused to the vehicle, regardless of the fact that it was parked illegally.

Options

In relation to vehicles owned by residents, the Owners Corporation has the usual remedies available to it for a breach of rules. If the Owners Corporation knows who owns the vehicle, it should serve a complaint on the vehicle owner and go through the dispute resolution process as set out in the rules. If no resolution can be achieved, the Owners Corporation can then make an application to VCAT for an Order requiring the owner of the vehicle to cease parking illegally on common property and an Order that he/she pay a civil penalty. If the owner then breaches the Order by leaving the car on common property again, he/she can theoretically be held in contempt and fined by VCAT.

The bigger problem arises when the Owners Corporation does not know who owns the vehicle and/or the vehicle is abandoned. In these circumstances, all that the Owners Corporation can do, from a legal perspective, is to make an Application to the Magistrates’ Court for an Order enabling them to move/tow the vehicle. While this is an expensive and time-consuming process, unfortunately, there is simply no legal manner in which the Owners Corporation can unilaterally decide to tow away a vehicle.

Having said that, if the vehicle is registered then the Owners Corporation should, as a first step, call the police and ask the police to contact the owner to have the car moved. The police may also move a vehicle in circumstances where the vehicle is blocking a driveway or right of way.

Another option is for an Owners Corporation to enter into an agreement for parking enforcement under section 90D of the RS Act with its local Council. The agreement essentially allow Council officers to issue fines and infringement notices to vehicles that have breached

the parking restrictions on common property. If an infringement notice has been issued and the owner of the vehicle has refused to remove the vehicle, a police officer may then arrange for the vehicle to be towed.

Not all Councils will enter into this types of agreement, so this is not an option for all Owners Corporations. However, where the option is available, it should be strongly considered by those Owners Corporations with continuous parking issues.

Summary

In summary, an Owners Corporation cannot legally tow or detain any vehicle parked on common property, whether it be owned by a non-resident or resident.

For vehicles of residents, the Owners Corporation can pursue the vehicle owner for a breach of the Rules.

For vehicles of non-residents, the Owners Corporation should contact the police in the first instance, but if the police are unhelpful, then the Owners Corporation will either need to:

  1. Make an application to the Magistrates’ Court for an Order authorising the removal of the vehicle; or

  2. Contact Council to enter into a parking enforcement agreement pursuant to section 90D of the RS Act.

 

Mark Lipshutz

CLP Lawyers

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Legal Advice - Electronic Signing of Documents


23 Jun 2021

We refer to your request for advice regarding the use of digital signing services and the enforceability of documents signed in this manner.

Section 9 of the Electronic Transactions (Victoria) Act 2000 (“ET Act”) governs the legality of electronic signatures in Victoria for most documents. Section 9 of the ET Act provides as follows:

(1) If, by or under a law of this jurisdiction, the signature of a person is required, that requirement is taken to have been met in relation to an electronic communication if—

  1. (a)  a method is used to identify the person and to indicate the person's intention in respect of the information communicated; and

  2. (b)  the method used was either—

    1. (i)  as reliable as appropriate for the purpose for which the electronic communication was generated or communicated, in the light of all the circumstances, including any relevant agreement; or

    2. (ii)  proven in fact to have fulfilled the functions described in paragraph (a), by itself or together with further evidence; and

  3. (c)  the person to whom the signature is required to be given consents to that requirement being met by way of the use of the method mentioned in paragraph (a).

    -Liability limited by a scheme under Professional Standards Legislation-

    23 Milton Parade, Malvern VIC 3144 T: (03) 9042 2070 Fax: 03 9832 0610 Web: www.clplawyers.com.au

CLP Lawyers Pty Ltd ABN 52 608 368 341

EMAIL LETTER

Our Ref: 20374

  1. (2)  This section does not affect the operation of any other law of this jurisdiction that makes provision for or in relation to requiring—

    1. (a)  an electronic communication to contain an electronic signature (however described); or

    2. (b)  an electronic communication to contain a unique identification in an electronic form; or

    3. (c)  a particular method to be used in relation to an electronic communication to identify the originator of the communication and to indicate the originator's intention in respect of the information communicated.

  2. (3)  The reference in subsection (1) to a law that requires a signature includes a reference to a law that provides consequences for the absence of a signature.

By way of summary, under the ET Act contracts and agreements may be signed electronically if:

  1. a reliable method is used to:

    1. identify the signatory; and

    2. the signatory indicates his/her intentions to be bound by the document being signed electronically.

  2. the other party to the agreement consents to the signing method being used.

From a practical perspective, there is no requirement for a formal verification of identity to be carried out. However, the name of the person signing the document electronically should be made clear and inserted under the signature. A statement should also be inserted under the signature that the person signing electronically consents to entering into the contract/agreement using the method chosen and agree to be bound by the document being signed in that manner.

Consent to the electronic signing is highly likely made out if the other party also signs digitally/electronically. However, if the other party is physically signing the document with wet ink, then it would be best to either:

  1. insert a condition in the document that states, “the parties consent to this document being electronically signed by any party and any party signing electronically acknowledges that they will be bound by their electronic signature”; or

  2. obtain the written consent (by email) of the other side to the electronic signing of the document.

We also note that the ET Act does not define an ‘electronic signature’. Therefore, an electronic signature may be produced in one of the following forms unless the document/correspondence expressly excludes otherwise:

  • an image of the person’s handwritten signature (i.e. by using ‘fill & sign’ in PDF etc.);

  • a signature electronically written (i.e. by using a stylus or finger);

  • the person’s typed name (i.e. on the area to be signed or if appliable in the circumstances, at the bottom of an email); or

  • a digital signature (i.e. DocuSign, AdobeSign, DigiCert etc.).
    Given the added security of using a digital signature, it is preferable to use this method through

    programs such as DocuSign and DigiCert where possible.

    Exceptions

    Notwithstanding the advice given above, there are certain documents that cannot ordinarily be signed electronically. They include, wills, statutory declarations, affidavits, powers of attorney. There is also a question mark as to whether deeds can be executed in this manner.

    However, new laws have been brought in to enable electronic execution of these documents as a result of Covid-19. This is set out in COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 (“Regulations”).

    The Regulations provide that for affidavits, deeds and mortgages, statutory declarations, powers of attorney documents, wills, codicils and other testamentary instruments, if an electronic signature is used, the person signing the document electronically must write or stamp under their signature a statement that the document was signed electronically in accordance with the Regulations.

    Put simply, the following needs to be written under the signature, “This document was electronically signed in accordance with the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020.”

    The electronic signing of the document must be witnessed using an audio-visual link (eg. Zoom) and the witness will still need to be satisfied of the identity of the signatory. The witness must also ensure that the following statement is written on the document, “This document was witnessed by audio-visual link in accordance with the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020.”

Summary

In summary, signing contracts and agreements electronically or by using digital signing services such as DocuSign is largely acceptable in Victoria, provided that conditions set out in this advice are met.

Other documents, such as wills, affidavits and statutory declarations may, for the time-being, be signed electronically pursuant to the Regulations. However, this may well change once Covid-19 has passed.

Should you have any further queries, please do not hesitate to contact us. Yours faithfully

Mark Lipshutz

CLP Lawyers