Spotlight Wellington Fining Customers For Overstaying.

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#3028697 29-Jan-2023 12:11

Just wondering. If you drove into one of these screw the customer car parks with a clearly legible sign in your car window saying I am not liable for any excess parking charges you try to impose and/or any excess charges you try to impose will be equaled by my charges for personal time used in paying charges, think it'd work ?

“The modern conservative is engaged in one of man's oldest exercises in moral philosophy; that is, the search for a superior moral justification for selfishness.” -John Kenneth Galbraith

rb99

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SirHumphreyAppleby

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#3028699 29-Jan-2023 12:17

rb99:

Just wondering. If you drove into one of these screw the customer car parks with a clearly legible sign in your car window saying I am not liable for any excess parking charges you try to impose and/or any excess charges you try to impose will be equaled by my charges for personal time used in paying charges, think it'd work ?

No, because there is no binding contract. The whole parking farce is based on the distress damage feasant, "... a common law remedy whereby a person who is in possession of land may impound a chattel which is wrongfully on that land to secure the payment of compensation for damage caused by it" (Wikipedia).

The key is damages. Incurring extra costs, such as towing, should only ever be done if the damages exceed those costs IMO. The whole industry needs a damn good rethink.

rb99

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#3028700 29-Jan-2023 12:21

The whole industry needs a damn good thrashing....

But anyway does that mean what they're doing shouldn't work any more than my own little idea ?

“The modern conservative is engaged in one of man's oldest exercises in moral philosophy; that is, the search for a superior moral justification for selfishness.” -John Kenneth Galbraith

rb99

Kyanar

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#3028768 29-Jan-2023 12:48

rb99:

But anyway does that mean what they're doing shouldn't work any more than my own little idea ?

No. Because they presented the contract to you for consideration prior to entry, their contract is valid. You cannot unilaterally impose a contract on another party. You certainly could not impose a contract on a company simply by operation of one of their employees without authorisation to enter into contracts on their behalf reading a notice.

However, the bit that falls flat is that private individuals and corporations cannot levy penalties - they can only pursue amounts to the maximum of a reasonable calculation of the damages they have incurred as a result of your breach.

In a free but time limited carpark, their damages can only ever be zero, as you cannot actually financially harm them by overstaying - they have not lost revenue as a result of someone else being unable to park, and they cannot pursue claims for the damages suffered by third parties (e.g. the store that contracted them to operate the carpark).

In a paid carpark, their damages could not exceed the amount that they would have received had the parking been validly paid for.

Jumping back to my first para though - I mentioned that you can't impose a contract on a company simply by having an employee read a notice? This cuts both ways - these companies rely on you believing that they have legal claim simply because they saw your vehicle parked in the carpark. This isn't the case - just like their employees can't create a binding contract on their behalf, your car cannot create a binding contract on your behalf.

Bung

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#3028769 29-Jan-2023 12:51

rb99:
Just wondering. If you drove into one of these screw the customer car parks with a clearly legible sign

What you need is the opposite. 007 had rotating numberplates on one of his Aston Martins. For Spotlight maybe a pair of roller blinds you could hoik over the plates just before the cameras would be appropriate.

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#3028770 29-Jan-2023 12:57

I'd definitely never have been a lawyer, but ten most things are beyond me. They stick up a notice and its valid because I still drove in, I stick up a notice and its not valid even though they let me drive in...

I do get the fines / penalties thing though 😀

...I'm glad I live in a small town where there's non (or very little) of this nonsense.

“The modern conservative is engaged in one of man's oldest exercises in moral philosophy; that is, the search for a superior moral justification for selfishness.” -John Kenneth Galbraith

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Eva888

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#3028895 29-Jan-2023 15:00

So what’s the consensus. Do I respond to the company that sent the notice telling them I was a customer in that carpark and have two dockets showing proof of purchase or just ignore it?

I have written such an email to Spotlight and waiting for their response first.

Lots of interesting takes on this issue which points to a need for some sort of regulation to protect the consumer who receives a notice from some entity.

In fact, how am I to know that this isn’t just a scam by someone who has gone to the carpark photographed the car, got my details from NZTA and sent me a notice to pay them into an account via a scam website. Just saying,

JimmyH

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#3028911 29-Jan-2023 15:51

They also don’t mention Spotlight, just the address as 120 Old Hutt Road. Had to look it up to see where it was I had been.

Thanks for the warning. We go in to that spotlight quite a bit, as my "other half" likes to shop there for sewing stuff and various other bits and bobs. If that's the way they are behaving towards customers, I don't think we will be patronising that outlet any further.

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#3028929 29-Jan-2023 16:47

JimmyH:
Thanks for the warning. We go in to that spotlight quite a bit, as my "other half" likes to shop there for sewing stuff and various other bits and bobs. If that's the way they are behaving towards customers, I don't think we will be patronising that outlet any further.

It could just as easily been the electrical wholesaler that pushed for parking control. Rather than restrict where you can shop use it as a reason to get on with it. 90 minutes must be long enough.

I was only half joking when I mentioned the cafe up the road. I suspect quite a few customers use the J A Russell/Spotlight car park.

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#3028996 29-Jan-2023 17:42

Eva888: The notice they sent is menacing looking with lots of white on black font and red highlights telling you Do Not Ignore.

IANAL

Following on from @michaelmurfy's excellent post... The above part is exactly correct - Do Not Ignore. If you do they will pass it on to a debt collection who will then lump their fees on top of what is already being claimed and your credit rating will be affected. You must dispute this with the issuing company within the 2 weeks or however long it is they have said you must pay within.

Once disputed they cannot legally pass this on to a debt collection agency. If they do, when the debt collector contacts you simply tell them you have previously disputed the matter and offer to send evidence. They should pass the matter back to the issuing company and have no more involvement.

In regards to few other comments in this thread, the malfeasance matter has, to the best of my knowledge, been done away with and it's now a matter of liquidated damages. Happy to be corrected if I'm wrong... In a free car park it's hard to see how liquidated damages could be more than $0.

When you dispute this matter:
- point out that under contract law they can only seek liquidated damages
- ask them to prove how much has been lost through their claim you overstayed (ask for an itemised list of their 'costs')
- point out that their admin costs are sunk and DT case law from a good 12 or so years ago (and as yet undisputed in a higher court) has already stated they cannot claim these (i.e. they existed with or without your parking)
- ask them to provide a link to the legislation which gives them a statutory power to issue fines

This process has worked for me in the past on the [two] occasions I've received a ticket from such companies.

Another avenue you could possibly consider (although it would mean you wouldn't be able to mention the receipts you have) is to ask for proof of identity. Just because you are the registered owner of the vehicle doesn't mean you were driving it... Any contract (whether it be legally valid/enforceable or not) would be with whomever was driving your car on the day. Asking them for proof of identity could be interesting - they may try and do a social media scrape if they do actually have a photo of the driver [unlikely]. If your social media accounts are private and don't have a photos of you on their cover they'll be a little out of luck. Unlike police, they don't have any legal powers to require you to tell them who was driving.

Good luck!

Kyanar

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#3029050 29-Jan-2023 20:35

rb99:

I'd definitely never have been a lawyer, but ten most things are beyond me. They stick up a notice and its valid because I still drove in, I stick up a notice and its not valid even though they let me drive in...

I do get the fines / penalties thing though 😀

...I'm glad I live in a small town where there's non (or very little) of this nonsense.

It's simple really, they stuck up a contract proposal, and you were given the opportunity to read the terms before entering the carkpark (and therefore receiving the consideration, in this case parking) and creating a binding contract. They offered, you accepted. Your proposal is invalid because you are attempting to bind them into a contract without consideration (a contract where one party receives no consideration or benefit is typically invalid) or intent (by driving into the carpark, you signalled intent to enter into their contract. You're trying to bind them through lack of intent, which is not legal).

Dratsab:

Following on from @michaelmurfy's excellent post... The above part is exactly correct - Do Not Ignore. If you do they will pass it on to a debt collection who will then lump their fees on top of what is already being claimed and your credit rating will be affected. You must dispute this with the issuing company within the 2 weeks or however long it is they have said you must pay within.

The above is not correct. They cannot send it to a debt collector as they must provide evidence of a valid debt before they can do so. The presence of your car is not evidence that you entered into the contract. No legitimate debt collector will touch it, which is why they have a pet "law firm" by the name of Force Legal that sends all the threats.

As to your credit file, also no. Debts less than $150 cannot be lodged for a start, and even if the debt goes over $150 due to nonsense fees, only credit providers can lodge defaults. They would need to get a court judgement to put it on your credit file.

You can safely completely ignore these speculative invoices.

Handle9

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#3029066 29-Jan-2023 21:49

Kyanar:
No. Because they presented the contract to you for consideration prior to entry, their contract is valid. You cannot unilaterally impose a contract on another party. You certainly could not impose a contract on a company simply by operation of one of their employees without authorisation to enter into contracts on their behalf reading a notice.

It’s a bit more complicated than that. The battle of the forms is a common strategy by many businesses. Courts in that situation have acknowledged both the “first shot” and “last shot” as binding depending on the circumstances. Like a lot of contract law the devil is in the detail.

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#3029087 29-Jan-2023 23:12

Kyanar: The above is not correct. They cannot send it to a debt collector as they must provide evidence of a valid debt before they can do so. The presence of your car is not evidence that you entered into the contract. No legitimate debt collector will touch it, which is why they have a pet "law firm" by the name of Force Legal that sends all the threats.

As to your credit file, also no. Debts less than $150 cannot be lodged for a start, and even if the debt goes over $150 due to nonsense fees, only credit providers can lodge defaults. They would need to get a court judgement to put it on your credit file.

You can safely completely ignore these speculative invoices.

Force Legal operate in Australia, not NZ. I was contacted by a debt collector in relation to one of my 2 'fines' (issued by Parking Enforcement Services, aka Wilsons) after disputing it. The debt collector (Baycorp iirc, it was about 14 years ago...) said they wouldn't bother me again after I told them the fine had already been disputed.

Since 01 October 2019 the minimum debt that can be lodged with a credit reporting company in NZ is $125, prior to that it was $100. Debt collectors can here can report debts - they sit on your file for 4 years.

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#3029113 30-Jan-2023 01:21

Dratsab:

Force Legal operate in Australia, not NZ. I was contacted by a debt collector in relation to one of my 2 'fines' (issued by Parking Enforcement Services, aka Wilsons) after disputing it. The debt collector (Baycorp iirc, it was about 14 years ago...) said they wouldn't bother me again after I told them the fine had already been disputed.

They would have a pet firm in New Zealand as well. Their business model relies on being able to send out letters as threatening looking as possible. But again, just don't engage. It's completely unenforceable.

Since 01 October 2019 the minimum debt that can be lodged with a credit reporting company in NZ is $125, prior to that it was $100. Debt collectors can here can report debts - they sit on your file for 4 years.

Not true. Only a credit default or court judgement can be lodged with a credit reporting agency, and they remain on file for five years, not four. These speculative invoices are not credit contracts, and cannot be listed on a credit report. If they took it to court (spoiler: they won't) then the court judgement would be added to your credit report.

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#3029114 30-Jan-2023 01:42

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