Australian Capital Territory Consolidated Acts Australian Capital Territory Consolidated Acts(1) A credit provider is not entitled to—
(a) institute proceedings against a debtor in relation to a matter arising under a regulated contract because of—
(i) a default by the debtor; or
(ii) a failure by the debtor to observe provisions of the contract, being a failure that does not constitute a breach of the contract; or
(iii) the exercise of an option by the credit provider; or
(b) exercise, or purport to exercise, a right under a regulated contract arising because of—
(i) a default by the debtor; or
(ii) a failure by the debtor to observe provisions of the contract, being a failure that does not constitute a breach of the contract; or
(iii) the exercise of an option by the credit provider; or
(iv) any other fact, act or thing;
because of which the whole or a part of the outstanding balance of the amount financed or of the amount owed has become due on a date earlier than the date when it would have become due if the default, failure, exercise, fact, act or thing had not occurred or been done;
unless—
(c) the debtor is in default under the contract; and
(d) the credit provider has served on the debtor and, if there is a guarantor in relation to the contract, on the guarantor, a notice in accordance with subsection (3); and
(e) the notice referred to in paragraph (d) has not been complied with in accordance with subsection (4).
(2) A mortgagee is not entitled to institute proceedings in relation to a matter arising under a regulated mortgage, or exercise, or purport to exercise, a right under a regulated mortgage unless—
(a) the debtor under the regulated contract to which the mortgage relates is in default under the contract; and
(b) the mortgagee has served on the mortgagor and, if there is a guarantor in relation to the mortgage, on the guarantor, a notice in accordance with subsection (3); and
(c) the notice referred to in paragraph (b) has not been complied with in accordance with subsection (4).
(3) A notice referred to in subsection (1) (d) or (2) (b) is a notice—
(a) specifying the default—
(i) of the debtor under the regulated contract; or
(ii) of the debtor under the regulated contract to which the regulated mortgage relates; and
(b) stating the intention of the credit provider or mortgagee to exercise rights and remedies under the regulated contract or regulated mortgage unless, within 1 month after service of the notice (or, if a longer period is specified in the notice, that longer period)—
(i) the default is remedied (except so far as the default relates to a requirement to do a thing at or before a certain time or within a certain period, or is a default in payment of an amount that became payable earlier than would have been the case if there had been no other default); and
(ii) the amounts that would be due to the credit provider under the contract if the default, failure, exercise, fact, act or thing had not occurred or been done, are paid; and
(iii) any enforcement expenses in relation to the exercise by the credit provider or mortgagee of any rights arising from the default of the debtor are paid; and
(c) stating, if the notice refers to payment of amounts due under the contract that increase until paid, that the amounts so increase; and
(d) containing the prescribed information.
(4) The notice referred to in subsection (1) (d) or (2) (b) is complied with if, within 1 month after service of the notice (or, if a longer period is specified in the notice, that longer period)—
(a) the default is remedied to the extent referred to in subsection (3) (b) (i); and
(b) the amounts referred to in subsection (3) (b) (ii) have been paid or tendered; and
(c) the enforcement expenses referred to in subsection (3) (b) (iii) (if any) have been paid.
(5) If a mortgage secures payment of a debt or other pecuniary obligation or the performance of any other obligation under a regulated contract and secures payment of other money or the performance of any other obligation, subsection (2) does not apply to or in relation to the institution of proceedings, or the exercise, or purported exercise, of a right under the mortgage, arising otherwise than because of a default of the debtor under the regulated contract.
(6) Subsections (1) and (2) do not apply if—
(a) in relation to a regulated contract, the credit provider believes on reasonable grounds that he or she was induced by fraudulent misrepresentation on the part of the debtor to enter into the contract; or
(b) in relation to a regulated mortgage, the mortgagee believes on reasonable grounds—
(i) that he or she was induced by fraudulent misrepresentation on the part of the mortgagor to enter into the mortgage; or
(ii) for the exercise of a right to take possession of goods—that the goods will be or have been removed, concealed, damaged or disposed of by the mortgagor in breach of the mortgage; or
(iii) for the exercise of a right under the mortgage in relation to property other than goods—that the property has been, or will be, damaged or prejudiced by the mortgagor in breach of the mortgage; or
(c) the credit provider or mortgagee has, after making reasonable efforts to locate the debtor or mortgagor, been unable to do so.
(7) The onus of proving that, because of subsection (6), (1) or (2) does not apply is on the credit provider or mortgagee.
(8) If a credit provider or mortgagee fails to comply with subsection (1) or (2) the court may, on the application of the debtor or mortgagor, order the credit provider or mortgagee to compensate the debtor or mortgagor for any loss suffered by the debtor or mortgagor as a result of that failure.