NATIONAL CONSUMER CREDIT PROTECTION ACT 2009 - SECT 180 Orders in relation to unlawful credit activities

NATIONAL CONSUMER CREDIT PROTECTION ACT 2009 - SECT 180

Court may make orders in relation to unlawful credit activities

  (1)   If:

  (a)   a person (the defendant ) engages in a credit activity in relation to another person (the plaintiff ); and

  (b)   the engaging in the activity contravenes any of the following:

  (i)   section   29 (which requires the holding of a licence);

  (ii)   section   124A (which prohibits the provision of credit assistance in relation to short - term credit contracts);

  (iii)   section   133CA (which prohibits credit providers from entering into short - term credit contracts etc.);

the court may make such order as the court considers appropriate against the defendant:

  (c)   to prevent the defendant from profiting from the plaintiff by engaging in that activity; or

  (d)   to compensate the plaintiff, in whole or in part, for any loss or damage suffered as a result of the defendant engaging in that activity; or

  (e)   to prevent or reduce the loss or damage suffered, or likely to be suffered, by the plaintiff as a result of the defendant engaging in that activity.

Note:   An order may be made under this subsection whether or not a declaration of contravention has been made under section   166.

  (2)   Without limiting subsection   (1), examples of orders the court may make include:

  (a)   an order declaring the whole or any part of a contract, deed or arrangement made between the defendant and the plaintiff to be void and, if the court considers it appropriate, to have been void from the time it was entered or at all times on and after a specified day before the order is made; and

  (b)   an order varying such a contract, deed or arrangement in such manner as is specified in the order and, if the court considers it appropriate, declaring the contract, deed or arrangement to have had effect as so varied on and after a specified day before the order is made; and

  (c)   an order refusing to enforce any or all of the terms of such a contract, deed or arrangement; and

  (d)   an order directing the defendant to refund money or return property to the plaintiff; and

  (e)   an order directing the defendant to pay to the plaintiff the amount of loss or damage the plaintiff suffered; and

  (f)   an order directing the defendant, at the defendant's own expense, to supply specified services to the plaintiff.

When order may be made

  (3)   The court may make the order only if:

  (a)   the plaintiff or ASIC (on behalf of the plaintiff) applies for an order under this section; and

  (b)   the application is made within 6 years of the day the cause of action that relates to the contravention or commission of the offence accrued.

Applications for order

  (4)   For the purposes of paragraph   (3)(a), ASIC may make an application on behalf of the plaintiff, but only if the plaintiff has given consent in writing before the application is made.

Recovery of amount as a debt

  (5)   If the court makes an order that the defendant pay an amount specified in the order to the plaintiff, the plaintiff may recover the amount as a debt due to the plaintiff.