You may have seen some articles, Reddit threads and TikToks recently claiming that parking ‘fines’ issued by private parking companies like Wilson are not ‘legal’ or ‘enforceable’. So, do you have to pay a private parking ‘fine’? You might not realise it, but the answer to this question is grounded in contract law.

Contract 101

Only government bodies like local councils (as well as other bodies who have legal authority to make by-laws) and courts can issue fines, so really a private parking ‘fine’ is best referred to as a ticket.

Any claim by a private person, including a company like Wilson, must be established under a contract. This means the elements required to form a contract (offer, acceptance, consideration, etc) must be satisfied.

When you park in a carpark managed by a private company, it is generally understood that you enter into a contract with them – by parking there you accept the conditions set by the company, including time limits on parking. These conditions must be visibly displayed at the entrance to the carpark (or when booking online), otherwise you would not have had the opportunity to accept them and therefore there would not be a contract. There may even be a contract if the parking is free, because the exchange of promises can constitute valuable consideration (although this is a little more complicated).

So if we operate on the assumption there is a contract, do you have to pay the ticket?

Is the company entitled to the amount claimed on your ticket?

Perhaps not. Really the company is claiming damages – that is, compensation for your breach of the contract. To be enforceable, damages must reflect the company’s losses. So:

If the parking is free, the company hasn’t really ‘lost’ anything. Any businesses – like shops or cafes – connected to the carpark may have experienced loss (ie, the businesses will want cars to keep turning over allow more customers to park and come into their premises), but that’s not necessarily something the parking company can enforce.

If the parking costs money, all the company has ‘lost’ is whatever you should have paid for parking there for a particular period of time (eg, if the parking is $2 per hour – wishful thinking, we know – and you parked there for 3 hours without paying, the company has lost $6).

Typically, these companies charge around $65 or more for a ‘breach’, which may be considered a ‘penalty’ – it is a seemingly arbitrary figure with little to no basis in any actual loss or damage. Penalties are not enforceable under contract law.

What might happen if you don’t pay it?

Ultimately if you don’t pay the ‘fine’, the company would have to initiate an action to recover the unpaid ticket amount in a small claims court (in Western Australia, the Magistrates Court). They are unlikely to do that given that, at best, they would receive the ticket amount (say $65) plus their legal fees (which are not guaranteed, even if they win). As such, the cost of taking you to court might be higher than the amount they are claiming.

If you don’t pay the fine, you may receive increasingly threatening letters in the mail. In Western Australia, that’s because private parking companies can use freedom of information legislation to get access to your personal details based on your registration number. Some other Australian jurisdictions have prevented companies from accessing this information.

While a private parking company might not go to the effort of trying to enforce their ticket in court, they might prevent you from parking there in future, although this would require constant monitoring at the point of entry. In Western Australia your car probably can’t be towed either (as there are limited circumstances in which cars can be towed from private property) and wheel clamping has been prohibited since 2020.

Conclusion

The law here is still a bit up in the air – there are lots of different variables so it is hard to give a concrete answer. The opinions provided in online threads can sometimes be a little simplistic and lack legal nuance. There are lots of reasons why a private parking company wouldn’t take you to court, but that doesn’t mean that they won’t. As always, inform yourself and try to do the right thing.

Note that the content of this blog does not apply in all jurisdictions, does not constitute legal advice, and should not be relied upon. You should seek legal advice in relation to any particular matters you may have. All opinions expressed are our own, not necessarily those of any organisations with which we are connected.