What are your rights if you get clamped?

A man waving a yellow ticket leapt out from the front of Cathy Talbot’s car as she was walking towards the vehicle. “At first I thought he was giving away vouchers of some sort or sticking things on car windscreens,” Cathy said. No such luck. He worked for NZ Wheel Clamping and had just clamped her car.

Cathy confesses her language was "rather colourful". She’d parked in what she thought was a public carpark. Cathy and her cousin were planning to have lunch at a restaurant adjoining the carpark. She said they'd gone into one shop and then walked down to the restaurant to read the menu. Before eating, they decided to nip across the road to look in another shop.

It was when Cathy was walking back to the restaurant that the clamper appeared. He told her parking was for "customers only" and pointed to a sign further away from Cathy's car. Cathy protested that she was a customer and was headed to the restaurant. But the clamper said it was too late – she’d left the carpark and had to wear the cost.

He told her to ring the number on the ticket to get the clamp removed. He drove off soon after. Angry and frustrated, Cathy went over to her car and kicked the tyre “at which point, the wheel clamp fell off, much to my disbelief!" In his rush to put on the clamp, Cathy said, he hadn't locked it in place.

Cathy handed the clamp in at the local police station. She got a receipt from the police stating it was handed in undamaged. She called NZ Wheel Clamping to tell them where it was. Cathy also called us to find out what her rights were.

Our consumer adviser Maggie Edwards says the law in this area is confused and overdue for reform. "If you park in a private carpark, the landowner may claim you accepted the risk of being clamped because there were clear signs warning this would happen. But if there are no signs or they're unclear or obscured, then this is a lot harder for the landowner to argue," Maggie says.

The other option for landowners is to rely on an ancient remedy called "distress damage feasant" – originally developed to help people whose land was damaged by wandering livestock. "But its application to cars parked on private land isn't straightforward and only the courts can decide whether it’s relevant in a particular case," Maggie explains.

The courts have found that if the vehicle owner is present when the car's being clamped then distress damage feasant isn’t available – because there’s a high risk of a confrontation between the parties and a breach of the peace. We think this protection should apply in all clamping situations and believe Cathy shouldn't have been clamped.

If you think you've been unfairly stung by a wheel clamper or the amount charged is excessive, Maggie recommends making a written complaint to the company. If you don't get anywhere, you can go to the disputes tribunal. Consumers have successfully challenged wheel-clamping companies in the tribunal before.

Got a question or comment on this topic? Share your views and experiences with other Consumer members...