Before deciding whether to appeal against the breach notice you have been issued, please take time to read the questions on this page. It may save you a lot of time and effort
Q: Are breach notices valid in law?
The short answer is yes. By parking a vehicle in a private car park you have entered into a contract with the car park operator and have accepted the terms and conditions displayed clearly on the notice board at the car park.
A driver who uses the car park in breach of these terms and conditions, e.g. without purchasing and/or clearly displaying a valid ticket, or parking in an unauthorised bay, has also accepted the risk of being issued a notice of breach, towed or clamped, as outlined in the terms and conditions.
In contract law, parties are not entitled to impose penalties or fines for breach of contract. However, they can seek “liquidated damages”. Liquidated damages are defined as a reasonable estimate of the damage suffered as a result of the contract being breached.
The use of liquidated damages allows the parties to agree in advance on the damages that will be payable by the driver if they breach the obligations owed to the carpark operator under the parking contract.
We have estimated the liquidated damages arising from the breach to be up to $65. This is made up of the loss of revenue due to non-purchase/display of valid ticket, plus the cost of monitoring the car park, issuing and processing the breach notice and dealing with any subsequent correspondence, debt collection and write-offs. We believe this amount to be fair and reasonable as it has been supported by the Disputes Tribunal. Again, these charges are stated in our terms and conditions.
The Breach Notice (or payment notice) is simply a demand for the payment of liquidated damages arising from a breach of the contract, which under contract law we are entitled to request.
This approach has been tested in court and at Disputes Tribunals and has stood up to scrutiny because it meets with the intention of the law. The law seeks to allow private parties to enter into contracts without having to rely on the law for the specifics of the contract.
Q: I have evidence that I purchased a valid ticket and I believe it was on display when I left the vehicle. Therefore it must have blown onto the floor or slipped off the dashboard. Can I appeal? ..
If you are able to send us the original ticket you purchased we would gladly waive the revenue-loss component of the breach notice. However, we will insist that you pay a component that incorporates us monitoring the carpark, issuing and processing the breach notice, all correspondence and the debt collection and write offs.
Q: I used a different vehicle on this occasion and forgot to display my parking pass. Can I appeal?
Unfortunately, the swapping of id cards between customers and vehicles is a major source of fraud in the parking industry. Therefore we have to be very strict about sticking with the Terms and Conditions of Parking at the car park, which state:
“You must display a valid Parking Ticket or ID Card clearly on the dashboard of your vehicle.” In this instance your appeal will not be valid. Please ensure that you keep your ID card in the vehicle that you are driving to avoid this unnecessary breach.
Q: I got held up at work, I park here every day, I could not do anything to get back to my vehicle before my ticket expired, and it will not happen again, can I appeal?
The problem for car park operators is how much time to allow customers to overstay. By not upholding breach notices for parking over the purchased time, is that it inevitably results in customers underpaying on a regular basis; so there has to be a deterrent.
The Terms and Conditions of Parking at the car park, clearly state:
“You must not park over the time stipulated on the Parking Ticket displayed in your vehicle or the time stipulated on the signage of the bay you are parked in.” So, in this instance your appeal will not be upheld. If you are not sure how long you are going to be parked in a car park, then you should purchase an all-day ticket and park in an area where time is not restricted.
Q: I did not get a Parking Breach Notice on my vehicle, the first information that I received was a letter in the mail. Could I please get a copy of the Notice sent to me?
Yes please click here and enter your details and we will email you a copy of the breach notice.
Please do not ignore Parking Breach notices. If a Parking Breach Notice remains unpaid, the outstanding amount will be sent to a debt recovery agency and/or NZCMS reserve the right to clamp and/or tow the vehicle until all outstanding debts are paid.
Currently, rental Car Companies do not take ownership of Parking Breach Notices issued on their vehicles. As a consequence, NZCMS have no alternative but to clamp and/or tow any rental vehicles that are found to be breaching any of the Terms and Conditions. We are trying to work with the Rental Car Companies to come to a resolution on this matter to avoid the unnecessary clamping or removal of vehicles.
Click here to find out more about the new code of practice for parking enforcement.