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CONSUMER AFFAIRS VICTORIA FAIR TRADING ACT 1999 ENFORCEABLE UNDERTAKING Section 146 The commitments in this undertaking are offered to the Director of Consumer Affairs Victoria by: FULLARTON MOTORS PTY LTD TRADING AS TREVOR LEE’S CAMPERDOWN AUTO SALES - LMCT 1222 -and- TREVOR JOHN LEE BACKGROUND 1.0 Description of the conduct that Consumer Affairs Victoria investigated. 1.1 Fullarton Motors Pty Ltd (the Company) trading as Trevor Lee’s Camperdown Auto Sales LMCT 1222 is an Australian proprietary company limited by shares, which was incorporated in Victoria on 2 August 1978. It lists its registered office and principal place of business at Camperdown Victoria (“the premises”). 1.2 Trevor John Lee is and was at all relevant times the director, secretary and shareholder of the Company. 1.3 The company’s core business is the buying, selling and repairing of motor cars but the company also retails a variety of 2 and 4 wheel recreational vehicles such as monkey or mini petrol powered bikes. 1.4 On 9 November 2005, the then Minister for Consumer Affairs signed a permanent ban order (“ban order”) prohibiting the supply of dangerous goods that are motor cycles powered by an internal combustion engine, not intended for certification under the “Road Vehicle Certification System” operated by the Commonwealth Department of Transport and Regional Services. The goods include motorcycles also known as Mini Bikes, Pocket Bikes or Monkey Bikes that do not comply with the schedule to the order. This ban order was published in the Victoria Government Gazette No. S 242 dated 30 November 2005 (copy attached as Annexure A to this undertaking). ________ Fair Trading Act 1999______________________Enforceable undertaking___2_______ 1.5 On 11 May 2009, Consumer Affairs Victoria officers inspected the premises for compliance with product ban orders and mandatory product safety standards made under the Fair Trading Act 1999 (the Act), which prohibit, amongst other dangerous goods, the supply of dangerous petrol powered mini bikes. 2.0 Brief details of investigation by Consumer Affairs Victoria. 2.1 Consumer Affairs Victoria officers identified that the company was supplying petrol powered mini bike that was a ‘dirt bike’ mini bike, blue and yellow in colour that does not meet the braking system requirements specified in the permanent ban order. 2.2 On 12 May 2009, Consumer Affairs Victoria officers executed a search warrant pursuant to section 122 of the Act on the premises and seized the ‘dirt bike’ mini bike. Officers also located and seized a ‘Super Bike’ mini bike, a ‘Vespa Bike’ mini bike and a ‘Foxico 27’ mini bike that does not meet the braking requirements specified in the ban order. In addition, Trevor John Lee was served with a notice placing an embargo on a further 6 x ‘dirt bike’ mini bikes, 3 x ‘Super Bike’ mini bikes, and 2 x ‘Vespa Bike’ mini bikes and 5 x ‘Foxico 27’ mini bikes that were located at the premises. 3.0 Explanation as to why the Director of Consumer Affairs Victoria considers the conduct to contravene the Fair Trading Act 1999. 3.1 Section 44 of the Act provides that a person must not supply goods or services that contravene permanent ban order or fix term ban order. 3.2 The company acknowledges that on 12 May 2009 it breached the Act, by supplying the ‘dirt bike’ mini bikes, the ‘Super bike’ mini bikes, the ‘Vespa Bike’ mini bikes and the ‘Foxico 27’ mini bikes, which are dangerous goods subject to a permanent ban order under the Act. 3.3 Trevor John Lee acknowledges that on 12 May 2009 he breached the Act, by supplying the ‘dirt bike’ mini bikes, the ‘Super bike’ mini bikes, the ‘Vespa Bike’ mini bikes and the ‘Foxico 27’ mini bikes, which are dangerous goods subject to a permanent ban order under the Act. 4.0 A statement that the conduct has stopped. 4.1 Trevor John Lee, as an individual and in his capacity as director of and on behalf of the company, confirms that he and the company have ceased to supply petrol powered mini bikes, which are dangerous goods subject to a permanent ban order under the Act. UNDERTAKING 5.0 Action to stop the offending conduct, produce product safety warning and redress for consumers and to destroy the dangerous goods. ________ Fair Trading Act 1999______________________Enforceable undertaking___3_______ 5.2 Trevor John Lee, as an individual and in his capacity as director of and on behalf of the company, undertakes to the Director of Consumer Affairs Victoria, pursuant to section 146 of the Act, that he and the company will: (a) refrain from supplying or offering to supply at any time in the future, products which are subject to Permanent Ban Order Prohibiting the Supply of Dangerous Goods published in the Victorian Government Gazette No S 242 on 30 November 2005; (b) refrain from supplying or offering to supply at any time in the future, products which do not comply with product ban orders and mandatory product safety standards as listed on the Consumer Affairs Victoria website www.consumer.vic.gov.au in the state of Victoria; (c) display the notice attached as Annexure B to this undertaking at a prominent position within the showroom or at the display area of the company’s trading premises situated at 235 Manifold Street Camperdown, Victoria for a period not less than consecutive 8 weeks. (d) place a notice at the Companies expense at the best possible position in the early general news section of the Camperdown Chronicle Newspaper at Camperdown Victoria, within 7 days of signing this undertaking. The notice is required to be in colour and the size of two modules wide with hatched borders and will contain the entire content of the warning notice referred to in paragraph (c) above; (e) advise Consumer Affairs Victoria, of the date of publication of the notice referred to in paragraph (d) above (f) write to known Victorian consumers of whom the company supplied the ‘dirt bike’ mini bikes, the ‘Super bike’ mini bikes, the ‘Vespa Bike’ mini bikes and the ‘Foxico 27’ mini bikes to and advise them that the said goods are deemed to be dangerous and they should immediately cease using them. In addition the customers should be asked to return the bikes for a full refund. (g) authorise Consumer Affairs Victoria to destroy and dispose of the 4 mini bikes that Consumer Affairs Victoria had seized from the premises and has in its possession; (h) agree that they will make no claim against Consumer Affairs Victoria or its officers arising out of the destruction of the goods referred to in paragraph (g) above; (i) agree to dismantle and destroy each of the 16 mini bikes held at Camperdown Victoria pursuant to Embargo Notice served on Trevor John Lee on 12 May 2009 within 28 days of from the signing of this undertaking by Trevor John Lee and; (j) provide the General Manager, Compliance and Enforcement Branch. Consumer Affairs Victoria with a certificate of destruction from an independent contractor attesting to the destruction referred to in paragraph (i) above within 7 days of such destruction; and ________ Fair Trading Act 1999______________________Enforceable undertaking___4_______ (k) consent to the Director of Consumer Affairs Victoria applying under section 146(2A) of the Act, at any time during which this undertaking is in force, to the Magistrates’ Court of Victoria for an order directing any or all persons giving this undertaking comply with it’s terms. TERMS 7.0 Commencement of the Undertaking 7.1 This undertaking comes into effect when: (a) the undertaking is signed by: (i) Trevor John Lee; (ii) Trevor John Lee as director of and on behalf of the company; and (b) The Director of Consumer Affairs Victoria accepts the undertaking. 8.0 ACKNOWLEDGEMENTS 8.1 Trevor John Lee, as an individual and in his capacity as director of and on behalf of the company acknowledges that: (i) Pursuant to section 148 of the Act, the Director of Consumer Affairs Victoria will register this undertaking in the register of undertakings on the Consumer Affairs Victoria Website and the undertaking will be available for public inspection, (ii) the Director of Consumer Affairs Victoria and/or the Minister for Consumer Affairs Victoria may from time to time publicly refer to this undertaking; and (iii) this undertaking in no way derogates from the rights and remedies available to any other person arising from the alleged conduct. Signed by: Trevor John Lee ……………………………………………….. In the presence of: ____________________________(witness).……..……………..…………………………. (print name) Signed by: ________ Fair Trading Act 1999______________________Enforceable undertaking___5_______ Trevor John Lee ……………………………………………… Director of Fullarton Motors Pty Ltd In the presence of: ____________________________(witness) ……………………………………………. (print name) ACCEPTED BY THE DIRECTOR OF CONSUMER AFFAIRS VICTORIA OR THE AUTHORISED DELEGATE OF THE DIRECTOR PURSUANT TO SECTION 146 OF THE FAIR TRADING ACT 1999 .…………………………………………… Director Dated …………………………………….
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