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NATIONAL CONSUMER CREDIT PROTECTION ACT 2009 - SECT 322 Enforcement of undertakings

NATIONAL CONSUMER CREDIT PROTECTION ACT 2009 - SECT 322

Enforcement of undertakings

  (1)   ASIC may accept a written undertaking given by a person in connection with a matter in relation to which ASIC has a function or power under the Commonwealth credit legislation.

  (2)   The person may withdraw or vary the undertaking at any time, but only with ASIC's consent.

  (3)   If ASIC considers that the person who gave the undertaking has breached any of its terms, ASIC may apply to the court for an order under subsection   (4).

  (4)   If the court is satisfied that the person has breached a term of the undertaking, the court may make all or any of the following orders:

  (a)   an order directing the person to comply with that term of the undertaking;

  (b)   an order directing the person to pay to the Commonwealth an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach;

  (c)   any order that the court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach;

  (d)   any other order that the court considers appropriate.

This Part   is about the terms that are defined in this Act (other than the National Credit Code). (For the terms that are defined in the National Credit Code, see section   204 of that Code.)

Division   2 has the Dictionary (see section   5). The Dictionary is a list of every term that is defined in this Act (other than the National Credit Code). A term will either be defined in the Dictionary itself, or in another provision of this Act. If another provision defines the term, the Dictionary will have a signpost to that definition.

Division   3 has definitions relating to the meaning of credit activity.

Division   4 has some other definitions that apply across this Act (other than the National Credit Code).

This Part deals with the application of this Act and the Transitional Act.

Division   2 is about the constitutional basis and geographical application of those Acts. It also deals with the application of those Acts to the Crown.

Division   3 deals with the interaction between those Acts and laws of the States and Territories.

This Part   is about the licensing of persons to engage in credit activities. In general, a person cannot engage in a credit activity if the person does not hold an Australian credit licence.

Division   2 prohibits a person from engaging in credit activities without an Australian credit licence. However, the prohibition does not apply to employees and directors of licensees or related bodies corporate of licensees, or to credit representatives of licensees.

Division   3 deals with other prohibitions relating to the requirement to be licensed and to credit activities. These prohibitions relate to holding out and advertising, conducting business with unlicensed persons, and charging fees for unlicensed conduct.

This Part   is about Australian credit licences.

Division   2 explains what an Australian credit licence is and the credit activities that are authorised by it.

Division   3 is about how to get an Australian credit licence, including how to apply for it and when ASIC may grant or refuse to grant it.

Division   4 is about the conditions that may be imposed on an Australian credit licence.

Division   5 is about conduct obligations of licensees.

Division   6 is about the suspension, cancellation or variation of an Australian credit licence.

This Part   is about credit representatives of licensees (which are a particular type of representative of licensees). A person who is authorised as a credit representative of a licensee does not need to hold an Australian credit licence when engaging in credit activities on behalf of the licensee.

This Part also deals with information that ASIC may give to licensees about their representatives (such as their employees, directors and credit representatives, and persons who act on their behalf), and the liability of licensees for their representatives.

Division   2 deals with how a credit representative may be authorised to engage in credit activities on behalf of a licensee. It also deals with certain obligations of licensees in relation to the authorisation of their credit representatives.

Division   3 deals with information about representatives that ASIC may give to a licensee and the use of that information.

Division   4 deals with the liability of licensees for the conduct of their representatives.

This Part   is about banning or disqualifying persons from:

  (a)   engaging in credit activities; or

  (b)   controlling others who engage in credit activities; or

  (c)   performing some or any functions involved in others engaging in credit activities.

The bans are orders made by ASIC under Division   2.

The disqualifications are orders made by the court under Division   3.

This Part   is about financial records, trust accounts and matters relating to audit reports required under this Act.

Division   2 deals with the requirement for licensees to keep certain financial records, and provides for how those records must be kept.

Division   3 deals with trust accounts. Licensees that provide credit services and that receive money on behalf of others in the course of those services are required to maintain a trust account. Those licensees must also comply with requirements in relation to trust account money, trust account statements and trust account audit reports.

Division   4 has requirements relating to audit reports required by this Act, and the auditors that prepare those reports.

This Part   is about exemptions from, and modifications of, the provisions of this Chapter.

Division   2 deals with how exemptions and modifications may be made by ASIC or by the regulations.

This Part has rules that apply to licensees that provide credit assistance in relation to credit contracts. These rules are aimed at better informing consumers and preventing them from being in unsuitable credit contracts. However, these rules do not apply to a licensee that will be the credit provider under the credit contract.

Division   2 requires a licensee to give its credit guide to a consumer. The credit guide has information about the licensee and some of the licensee's obligations under this Act.

Division   3 requires a licensee to give a quote before providing credit assistance to a consumer. The quote must set out the maximum amount the consumer will be required to pay to the licensee. The licensee must not charge more than that amount.

Division   4 requires a licensee, before providing credit assistance to a consumer in relation to a credit contract, to make a preliminary assessment as to whether the contract will be unsuitable for the consumer. To do this, the licensee must make inquiries and verifications about the consumer's requirements, objectives and financial situation. The licensee must give the consumer a copy of the assessment if requested.

Division   5 requires a licensee, when providing credit assistance to a consumer in relation to a credit contract, to give the consumer a document that discloses certain information (for example, the indirect remuneration the licensee is likely to receive).

Division   6 prohibits a licensee from providing credit assistance to a consumer in relation to a credit contract if the contract will be unsuitable for the consumer.

Division   7 prohibits a licensee from providing credit assistance to a consumer in relation to short - term credit contracts, and imposes requirements on a licensee who makes representations about providing credit assistance in relation to small amount credit contracts. It also imposes requirements in relation to recording the preliminary assessment that a small amount credit contract is not unsuitable.

This Part has rules that apply to licensees that are credit providers. These rules are aimed at better informing consumers and preventing them from being in unsuitable credit contracts.

Division   2 requires a licensee to give its credit guide to a consumer. The credit guide has information about the licensee and some of the licensee's obligations under this Act.

Division   3 requires a licensee, before doing particular things (such as entering a credit contract), to make an assessment as to whether the contract will be unsuitable. To do this, the licensee must make inquiries and verifications about the consumer's requirements, objectives and financial situation. The licensee must give the consumer a copy of the assessment if requested.

Division   4 prohibits a licensee from entering or increasing the credit limit of a credit contract that is unsuitable for a consumer.

This Part has rules that apply to licensees that are credit providers under standard home loans. It applies in addition to the general rules in Part   3 - 2.

Division   2 imposes requirements aimed at ensuring a consumer can obtain a Key Facts Sheet for a standard home loan.

This Part has rules that apply to licensees that are credit providers under credit card contracts. It applies in addition to the general rules in Part   3 - 2.

Division   2 defines key concepts used in this Part (including credit card contract and credit card).

Division   3 imposes requirements aimed at ensuring a consumer obtains a Key Facts Sheet before entering into a credit card contract.

Division   4 imposes restrictions on a licensee making offers etc. to increase the credit limit of a credit card contract, and imposes requirements aimed at ensuring the consumer can reduce the credit limit of a credit card contract.

Division   5 provides for consumers to be notified if a credit card is used in excess of its credit limit, and restricts the charging of fees etc. for use of a credit card in excess of its credit limit.

Division   6 imposes requirements relating to the order of application of payments made under credit card contracts. Generally, a payment must be applied against higher interest rate debts first.

Division   7 imposes requirements relating to application of interest charges under credit card contracts.

Division   8 imposes requirements aimed at ensuring the consumer can terminate a credit card contract.

This Part has rules that apply to licensees who are, or are to be, credit providers under short - term credit contracts and small amount credit contracts. It applies in addition to the general rules in Part   3 - 2.

Division   2 prohibits a licensee from entering into, or increasing the credit limit of, short - term credit contracts. It also imposes requirements on a licensee who makes representations about entering into small amount credit contracts and prohibits a licensee from entering into, or offering to enter into, small amount credit contracts in certain circumstances. Division   2 imposes requirements in relation to recording the assessment that a small amount credit contract is not unsuitable and prohibits a licensee from making certain unsolicited communications in relation to small amount credit contracts. It also provides that the consumer is not liable to pay certain fees and charges under small amount credit contracts in certain circumstances.

This Part has rules that apply to licensees that are large ADIs or are of a prescribed kind.

Each licensee must supply certain information to eligible credit reporting bodies about all of the open credit accounts held with the licensee or with other members of the licensee's corporate group.

Each licensee must then supply updated information to those credit reporting bodies on an ongoing basis.

Conditions may need to be met before the credit reporting bodies who are supplied with this information can further disclose this information to credit providers.

This Part applies in addition to the Privacy Act 1988 .

This Part has rules that apply to licensees that provide credit services or are credit providers.

Before providing credit assistance, or entering into a credit contract, for a reverse mortgage, licensees must provide projections of the debtor's equity in the property that may be covered by the reverse mortgage.

Licensees must also make reverse mortgage information statements available on their websites and on request.

Licensees must not inaccurately use terms like "reverse mortgage" in making representations about credit contracts and mortgages.

This Part has rules that apply to licensees that provide credit assistance in relation to consumer leases. These rules are aimed at better informing consumers and preventing them from being in unsuitable consumer leases. However, these rules do not apply to a licensee that will be the lessor under the consumer lease.

Division   2 requires a licensee to give its credit guide to a consumer. The credit guide has information about the licensee and some of the licensee's obligations under this Act.

Division   3 requires a licensee to give a quote before providing credit assistance to a consumer. The quote must set out the maximum amount the consumer will be required to pay to the licensee. The licensee must not charge more than that amount.

Division   4 requires a licensee, before providing credit assistance to a consumer in relation to a consumer lease, to make a preliminary assessment as to whether the lease will be unsuitable for the consumer. To do this, the licensee must make inquiries and verifications about the consumer's requirements, objectives and financial situation. The licensee must give the consumer a copy of the assessment if requested.

Division   5 requires a licensee, when providing credit assistance to a consumer in relation to a consumer lease, to give the consumer a document that discloses certain information (for example, the indirect remuneration the licensee is likely to receive).

Division   6 prohibits a licensee from providing credit assistance to a consumer in relation to a consumer lease if the lease will be unsuitable for the consumer.

Division   7 imposes requirements on a licensee who makes representations about providing credit assistance in relation to consumer leases for household goods. It also imposes requirements in relation to recording the preliminary assessment that a consumer lease is not unsuitable.

This Part has rules that apply to licensees that are lessors. These rules are aimed at better informing consumers and preventing them from being in unsuitable consumer leases.

Division   2 requires a licensee to give its credit guide to a consumer. The credit guide has information about the licensee and some of the licensee's obligations under this Act.

Division   3 requires a licensee, before doing particular things (such as entering a consumer lease), to make an assessment as to whether the lease will be unsuitable. To do this, the licensee must make inquiries and verifications about the consumer's requirements, objectives and financial situation. The licensee must give the consumer a copy of the assessment if requested.

Division   4 prohibits a licensee from entering a consumer lease that is unsuitable for a consumer.

Division   5 prohibits a licensee from entering into, or offering to enter into, a consumer lease for household goods in certain circumstances and imposes requirements on a licensee who makes representations about consumer leases for household goods. It also imposes requirements in relation to recording an assessment that a consumer lease is not unsuitable.

This Part has rules that apply to credit representatives when they act on behalf of a licensee under Part   3 - 1, 3 - 2, 3 - 3 or 3 - 4. These rules are aimed at better informing consumers.

Division   2 requires a credit representative to give its credit guide to a consumer. The credit guide has information about the credit representative.

This Part   imposes obligations on mortgage brokers and mortgage intermediaries.

Mortgage brokers must act in the best interests of consumers when providing credit assistance in relation to credit contracts.

Where there is a conflict of interest, mortgage brokers must give priority to consumers in providing credit assistance in relation to credit contracts.

Mortgage brokers and mortgage intermediaries must not accept conflicted remuneration.

Employers, credit providers and mortgage intermediaries must not give conflicted remuneration to mortgage brokers or mortgage intermediaries.

The circumstances in which these bans on conflicted remuneration apply are to be set out in the regulations.

This Part has rules that apply to a person who is authorised to collect payments under a credit contract or consumer lease from a debtor or lessee. These rules are aimed at better informing consumers.

Division   2 requires the person to give the person's credit guide to the consumer. The credit guide has information about the person.

This Part has a number of miscellaneous rules that require responsible lending conduct when engaging in credit activities or particular types of credit activities. Some of these rules apply to a person even if the person is not required to be licensed.

Division   2 prohibits licensees from making particular representations when providing a credit service to a consumer.

Division   2A restricts the use and disclosure of certain documents and information.

Division   3 prohibits a person (whether licensed or not) from giving false or misleading information in the course of engaging in a credit activity.

Division   4 may require a credit provider or lessor (whether licensed or not) to give notice when, and in some cases before, giving an employer of a debtor or lessee an authorisation by the debtor or lessee to make deductions from amounts payable by the employer to the debtor or lessee.

Division   5 provides that ASIC may determine periods for the purpose of determining the unsuitability of credit card contracts.

Division   6 prohibits licensees that carry on a business of providing credit under small amount credit contracts from making certain kinds of referrals (called proscribed referrals) in certain circumstances.

This Part   is about exemptions from, and modifications of, the provisions of this Chapter.

Division   2 deals with how exemptions and modifications may be made by ASIC or by the regulations.

This Part   is about civil penalty provisions. Civil penalty provisions impose obligations on certain persons. Civil remedies may be sought in relation to contraventions of these provisions.

Division   2 authorises the court to make a declaration that a person has contravened a civil penalty provision and order the person to pay a pecuniary penalty. Only ASIC may apply to the court for the declaration or order.

Division   3 has general provisions relating to civil penalty provisions, including rules about evidence and procedure.

This Part   is about the remedies the court may grant.

Division   2 authorises the court to grant a range of remedies, including injunctions, compensation orders and other orders against those who engage in credit activities unlawfully.

This Part   is about court jurisdiction and procedure.

Division   2 deals with civil proceedings. It confers jurisdiction on the Federal Court, the Federal Circuit and Family Court of Australia (Division   2) and State and Territory courts, subject to specified limits. It also contains rules about the transfer of civil proceedings between courts and other matters (such as when proceedings may be dealt with as small claims proceedings and when adverse cost orders can be made).

Division   3 deals with criminal proceedings. It confers criminal jurisdiction on the State and Territory courts and sets out the laws that are to be applied in relation to criminal proceedings.

Division   4 contains rules about proceedings generally (such as ASIC's power to intervene in proceedings and the power of courts to punish for contempt).

This Part provides for the Registrar's role under this Act.

The Minister appoints an existing Commonwealth body to be the Registrar. The Minister can give directions to the Registrar.

The Registrar performs functions and exercises powers in accordance with the data standards (and other Commonwealth laws). The data standards are disallowable instruments made by the Registrar. They may deal with such matters as how information is given to the Registrar (including electronically).

Information that the Registrar has can be disclosed to government agencies for the performance of their functions. Other disclosures (such as by public access to information) are dealt with by the disclosure framework, which is a disallowable instrument made by the Registrar.

Certain decisions made by the Registrar are reviewable by the Administrative Appeals Tribunal.

This Part also set out the Registrar's obligation to record information relating to credit activities.

This Part deals with the lodging of documents with ASIC. It also has offences relating to making false statements in documents.

Division   2 deals with how documents are lodged with ASIC and the approved forms in which the documents must be lodged. It also deals with ASIC's power to refuse to receive documents (in which case, the documents will not be treated as having been lodged with ASIC).

Division   3 deals with ASIC's register of documents that have been lodged with ASIC.

Division   4 has other provisions relating to documents (such as offences for making false statements in documents lodged with ASIC or required for the purposes of this Act).

This Part deals with the concealment or falsification of credit books.

Division   2 includes requirements not to conceal or falsify credit books, and a requirement to take precautions against the falsification of credit books.

This Part deals with fees imposed by the National Consumer Credit Protection (Fees) Act 2009.

Division   2 includes provisions relating to fees, including the payment of fees, the lodgment of documents or doing of acts without the payment of fees, and the waiver or refund of fees.

This Part   is about investigations made by ASIC.

Division   2 includes powers of ASIC to make investigations. ASIC may make investigations in certain circumstances for the due administration of the Commonwealth credit legislation. The Minister may also direct ASIC to investigate matters in certain circumstances.

Division   2 also deals with reports about investigations.

This Part   is about the examination of persons by ASIC.

Division   2 allows ASIC to examine a person if ASIC suspects or believes, on reasonable grounds, that the person can give information relevant to an investigation under Part   6 - 1.

Division   2 also includes rules relating to the procedure for examination of persons by ASIC.

This Part   is about powers of ASIC in relation to the inspection of books and gathering of information about audits.

Division   2 includes powers of ASIC to inspect books, and to require persons to produce books or documents, or give information, in some circumstances.

This Part   is about criminal and civil proceedings that ASIC may bring after it has conducted an investigation under this Chapter.

Division   2 deals with criminal proceedings. After an investigation of a person under this Chapter, ASIC may prosecute the person for an offence against the Commonwealth credit legislation (i.e. this Act or the National Credit Transitional Act). It may also require others to provide it with reasonable assistance in connection with the prosecution.

Division   2 also deals with civil proceedings. After an investigation of a person under this Chapter, ASIC may bring civil proceedings against a person in particular circumstances. However, under this Division, ASIC cannot bring civil proceedings under the Commonwealth credit legislation. This is because Part   4 - 2 (which deals with remedies) and the National Credit Code deal with when ASIC can bring those proceedings.

This Part   is about hearings held by ASIC.

Division   2 gives ASIC the power to hold hearings for the purpose of the performance of its functions and powers under the Commonwealth credit legislation (other than Part   6 - 1).

Division   2 also includes rules and procedures for the conduct of hearings, including rules in relation to whether the hearing is conducted in private, and rules in relation to evidence and proceedings at hearings.

This Part   is about the penalties applicable to offences against this Act.

Division   2 includes rules about the penalties applicable to offences committed by individuals or bodies corporate. These penalties are worked out in relation to the penalty specified for the offence.

This Part   is about the use of infringement notices where ASIC reasonably believes that a provision has been contravened.

Division   2 authorises ASIC to give an infringement notice in relation to a contravention of certain provisions. A person who is given an infringement notice can choose to pay an amount as an alternative to having court proceedings brought against the person for the contravention. If the person does not choose to pay the amount, proceedings can be brought against the person for the contravention.

This Part   is about offences for non - compliance with requirements of this Chapter, and other offences in relation to requirements made under this Chapter.

Division   2 includes offences for non - compliance with the requirements of this Chapter. It also includes other offences relating to compliance and enforcement, including offences relating to giving false information, obstructing the exercise of powers under this Chapter, and contempt of ASIC.

Division   2 also includes rules in relation to self - incrimination and legal professional privilege.

This Part   is about powers of ASIC to in relation to non - compliance with this Chapter.

Division   2 is about orders that ASIC may make in relation to credit contracts, mortgages, guarantees and consumer leases.

This Part aims to reduce the risk that credit contracts, mortgages, guarantees or consumer leases (credit products) or proposed credit products result in significant detriment for consumers.

Division   2 provides ASIC with powers that it can use proactively to reduce the risk of significant detriment to consumers resulting from credit products.

This Part   is about the evidentiary use and value of certain material.

Division   2 includes rules in relation to the evidentiary value of statements made at examinations, copies or extracts made from certain books, and reports of investigations made under Part   6 - 1.

 

Commonwealth Coat of Arms of Australia

National Consumer Credit Protection Act 2009

No.   134, 2009

Compilation No.   45

Compilation date:   1 January 2024

Includes amendments:   Act No. 69, 2023

Registered:   12 January 2024

This compilation is in 2 volumes

Volume 1:   sections   1- 322

Volume 2:   sections   323- 337

  Schedule   1

  Endnotes

Each volume has its own contents

About this compilation

This compilation

This is a compilation of the National Consumer Credit Protection Act 2009 that shows the text of the law as amended and in force on 1 January 2024 (the compilation date ).

The notes at the end of this compilation (the endnotes ) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the Register for the compiled law.

Self - repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

 

 

 

Contents

Chapter   7--Miscellaneous

Part   7 - 1--Miscellaneous

Division   1--Introduction

323   Guide to this Part

Division   1A--Avoidance schemes

323A   Schemes for avoidance purposes

323B   Whether it is reasonable to draw conclusion as to purpose

323C   Presumption of avoidance for certain schemes in civil cases

323D   Exemption by ASIC

Division   2--Liability of persons for conduct of their agents etc.

324   Liability for bodies corporate for conduct of their agents, employees etc.

325   Liability of persons (other than bodies corporate) for the conduct of their agents, employees etc.

326   Regulations for the purposes of this Division

Division   3--Review of ASIC's decisions

327   Review by Administrative Appeals Tribunal of decisions by ASIC under this Act

328   Notice of reviewable decision and review rights

Division   4--Regulations

329   Regulations

330   Regulations--where proceedings may be brought

Division   5--Other miscellaneous provisions

332   Civil penalty provisions contravened or offences committed partly in and partly out of this jurisdiction

333   Contravention of Act does not generally affect validity of transactions etc.

334   Contracting out etc.

335   Indemnities

336   Acquisition of property

337   Minister may delegate prescribed functions and powers under this Act

Schedule   1--National Credit Code

Part   1--Preliminary

1   Short title

2   Interpretation generally

3   Meaning of credit and amount of credit

4   Meaning of credit contract

5   Provision of credit to which this Code applies

6   Provision of credit to which this Code does not apply

7   Mortgages to which this Code applies

8   Guarantees to which this Code applies

9   Goods leases with option to purchase to be regarded as sale by instalments

10   Deciding application of Code to particular contracts for the sale of land by instalments

11   Deciding application of Code to particular contracts for the sale of goods by instalments

12   Deciding application of Code to particular contracts for the sale of goods by instalments under related contracts

13   Presumptions relating to application of Code

13A   Reverse mortgages

Part   2--Credit contracts

Division   1--Negotiating and making credit contracts

14   Credit contract to be in form of written contract document

15   Other forms of contract

16   Precontractual disclosure

17   Matters that must be in contract document

18   Form and expression of contract document

18A   Provisions that must not be included in credit contract for reverse mortgage

18B   Disclosure if credit contract for reverse mortgage does not protect tenancy of person other than debtor

18C   Independent legal advice before entry into credit contract for reverse mortgage

19   Alteration of contract document

20   Copy of contract for debtor

21   When debtor may terminate contract

22   Offence for noncompliance

Division   2--Debtor's monetary obligations

23   Prohibited monetary obligations--general

23A   Prohibited monetary obligations--small amount credit contracts

24   Offences related to prohibited monetary obligations--credit providers

24A   Offences related to prohibited monetary obligations--credit assistance providers

25   Loan to be in money or equivalent

26   Early payments and crediting of payments

26A   Regulations about residential investment property

Division   3--Interest charges

27   Definitions relating to interest

27A   Application of this Division

28   Limit on interest charges

29   Early debit or payment of interest charges prohibited

30   Default interest

30A   Regulations about residential investment property

30B   Regulations about credit card contracts

Division   4--Fees and charges

31   Prohibited credit fees or charges

31A   Restrictions on fees and charges for small amount credit contracts

31B   Credit provider or prescribed person must not require or accept payment of a fee or charge in relation to a small amount credit contract etc.

31C   Prohibition on unexpired monthly fees in relation to small amount credit contracts

32   Fees or charges in relation to third parties

Division   4A--Annual cost rate of certain credit contracts

32A   Prohibitions relating to credit contracts if the annual cost rate exceeds 48%

32AA   Prohibition relating to the annual cost rate of credit contracts--later increases of the annual percentage rate etc.

32B   Calculation of annual cost rate

Division   5--Credit provider's obligation to account

33   Statements of account

34   Information to be contained in statements of account

35   Opening balance must not exceed closing balance of previous statement

36   Statement of amount owing and other matters

37   Court may order statement to be provided

38   Disputed accounts

39   Dating and adjustment of debits and credits in accounts

Division   5A--Additional rules relating to small amount credit contracts

39A   Limit on the application of amount of credit provided under a small amount credit contract

39B   Limit on amount that may be recovered if there is default under a small amount credit contract

39C   Credit provider must do prescribed things if a default in payment by direct debit occurs

Division   6--Certain transactions not to be treated as new contracts

40   Changes etc. under contracts

Part   3--Related mortgages and guarantees

Division   1--Mortgages

41   Application of Division

42   Form of mortgage

43   Copy of mortgage for mortgagor

44   Mortgages over all property void

45   Restriction on mortgage of future property

46   Mortgages and continuing credit contracts

47   All accounts mortgages

48   Third party mortgages prohibited

49   Maximum amount which may be secured

50   Prohibited securities

51   Assignment or disposal of mortgaged property by mortgagor

52   Conditions on consent to assignment or disposal of property subject to mortgage

53   Offence for noncompliance

Division   2--Guarantees

54   Application of Division

55   Form of guarantee

56   Disclosure

57   Copies of documents for guarantor

58   Guarantor may withdraw before credit is provided

59   Extension of guarantee

60   Limitation of guarantor's liability

61   Increase in guarantor's liabilities

62   Offence for noncompliance

Part   4--Changes to obligations under credit contracts, mortgages and guarantees

Division   1--Unilateral changes by credit provider

63   Application of Division

64   Interest rate changes

65   Repayment changes

66   Credit fees and charges changes

67   Changes to credit limits etc. in continuing credit contracts

67A   Changes to tenancy protection in credit contracts for reverse mortgages

68   Other unilateral changes by credit provider

69   Particulars of matters as changed only required to be given under this Division in certain cases

70   Prohibited increases in liabilities

Division   2--Changes by agreement of parties

71   Changes by agreement

Division   3--Changes on grounds of hardship and unjust transactions

72   Changes on grounds of hardship

73   Notice of change

74   Changes by court

75   Credit provider may apply for variation of change

76   Court may reopen unjust transactions

77   Orders on reopening of transactions

78   Court may review unconscionable interest and other charges

79   Applications by ASIC

80   Time limit

81   Joinder of parties

Part   5--Ending and enforcing credit contracts, mortgages and guarantees

Division   1--Ending of credit contract by debtor etc.

Subdivision A--Paying out contract etc.

82   Debtor's or guarantor's right to pay out contract

83   Statement of pay out figure

84   Court may determine pay out figure if credit provider does not provide a pay out figure

85   Surrender of mortgaged goods and goods subject to sale by instalments

86   Compensation to debtor or mortgagor

Subdivision B--Ending of reverse mortgage by credit provider receiving value of reverse mortgaged property

86A   Application of this Subdivision

86B   Discharge of debtor's obligations under credit contract and discharge of mortgage

86C   Credit provider must pay debtor excess of receipt over adjusted market value for reverse mortgaged property

86D   Credit provider must not demand or accept further payments

86E   Cases in which sections   86B, 86C and 86D do not apply

86F   Relationship between this Subdivision and other provisions

Subdivision C--Notice of first direct debit default

87   One - off notice to be given the first time a direct debit default occurs

Division   2--Enforcement of credit contracts, mortgages and guarantees

88   Requirements to be met before credit provider can enforce credit contract or mortgage against defaulting debtor or mortgagor

89   Defaults may be remedied

89A   Effect of hardship notices on enforcement

90   Requirements to be met before credit provider can enforce guarantee against guarantor

91   Requirements to be met before credit provider can repossess mortgaged goods

93   Requirements to be met before credit provider can enforce an acceleration clause

93A   Extra requirements for enforcing reverse mortgage if debtor's liability exceeded value of reverse mortgaged property

Division   3--Postponement of enforcement proceedings

94   Postponement of exercise of rights

95   Effect of negotiated postponement

96   Postponement by court

97   Credit provider may apply for variation of postponement order

Division   4--Enforcement procedures for goods mortgaged

98   Information as to location of mortgaged goods

99   Entry to residential property to take possession of goods

100   Court may order entry

101   Order for possession

102   Procedures to be followed by credit provider after taking possession of goods

103   Mortgagor may nominate purchaser of goods taken by credit provider

104   Sale of goods by credit provider

105   Matters for which account can be debited after mortgagee sale of goods

106   Compensation to mortgagor

Division   5--Enforcement expenses

107   Recovery of enforcement expenses

Division   6--Mortgagor's remedies

108   Mortgagor may apply to regain possession of mortgaged goods

109   Order for possession for mortgagor

110   Ancillary or consequential orders

Part   6--Penalties for defaults of credit providers and lessors

Division   1--Penalties for breach of key disclosure and other requirements

111   Key requirements

112   Application for order relating to key requirements

113   Penalty may be imposed for contravention of key requirement

114   Penalty if application made by debtor or guarantor

114A   Penalty if application made by lessee

115   Payment of penalty to debtor, lessee or guarantor

116   Penalty if application made by credit provider, lessor or ASIC

117   Payment of penalty

118   Compensation for debtor, lessee or guarantor

119   General provisions relating to applications by credit providers, lessors or ASIC

120   ASIC may represent interests of debtors and lessees

121   Directions pending court's decision

122   Offences

123   Time limit for application for orders under this Division

Division   2--Other penalties

124   Civil effect of contraventions

Part   7--Related sale contracts

Division   1--Interpretation and application

125   Meaning of sale contract

126   Sale contracts to which this Part applies

127   Linked credit providers and tied credit contracts

Division   2--Liability of credit providers for suppliers' misrepresentations

128   Credit provider liable with respect to supplier's misrepresentations etc. about tied credit contract

Division   3--Liability of credit providers in relation to goods

129   Right to damages under sale contract against both supplier and linked credit provider

130   Limits on debtor's right of action against linked credit provider

131   Liability of supplier to linked credit provider

132   Interest may be awarded

133   Subrogation of credit provider

Division   4--Termination of related transactions

134   Termination of sale contract which is conditional on obtaining credit

135   Termination of (or recredit under) tied credit contract if sale contract terminated

136   Termination of linked maintenance services contract if credit contract terminated

137   Termination of contract under this Part to be in writing

138   Powers of court with respect to termination of contract under this Part

139   Part   5 not to apply to termination of contract under this Part

Division   5--Other provisions

140   Requirement as to source of credit for goods or services

141   Prohibition on payment for goods or services by postdated bills of exchange or notes which exceed cash price of goods or services

Part   8--Related insurance contracts

142   Interpretation and application

143   Requirement to take out insurance or to insure with particular insurer or on particular terms

144   Financing of insurance premiums over mortgaged property

145   Commission for consumer credit insurance

146   Supply of copy of credit - related insurance contract by insurer

147   Rejection of debtor's proposal for insurance

148   Termination of consumer credit insurance contract if credit contract terminated

149   Termination of insurance contract over mortgaged property if credit contract terminated

Part   9--Advertising and related conduct

150   Advertising

151   Persons liable for advertisements

152   Defence

153   Interest rates which may be disclosed

154   False or misleading representations

155   Harassment

156   Canvassing of credit at home

Part   10--Comparison rates

Division   1--Preliminary

157   Object of Part

158   Part not to apply to continuing credit contracts

159   Definitions

Division   2--Comparison rate in credit advertising

160   Comparison rate mandatory in advertisements containing annual percentage rate

161   The relevant comparison rate

162   Information about comparison rate

163   Warning about comparison rate

164   Other requirements for comparison rate

Division   3--Comparison rate in other documents

165   Comparison rates in documents other than credit advertising

Division   4--Miscellaneous

166   Calculation of comparison rates

167   Compliance grace period following changes in interest or fees

168   Regulations--exemptions and other matters

Part   11--Consumer leases

Division   1--Interpretation and application

169   Meaning of consumer lease

170   Consumer leases to which this Part applies

171   Consumer leases to which this Part does not apply

172   Presumptions relating to application of this Part

Division   2--Form of and information to be included in consumer leases

173   Form of consumer lease

173A   Other forms of consumer lease

174   Disclosures in consumer leases

174A   Alteration of consumer lease document

175   Copy of lease etc. for lessee

Division   4--Fees and charges

175A   Prohibited consumer lease fees or charges

175AA   Cap on fees and charges for consumer leases

175AB   Imposing fees or charges above the permitted cap--offence

175AC   Lessee may recover fees and charges exceeding base price if cap is breached

175B   Fees or charges in relation to third parties

Division   5--Lessor's obligation to account

Subdivision A--Ongoing statements of account

175C   Statements of account

175D   Information to be contained in statements of account

175E   Statement of amount owing and other matters

175F   Court may order statement of account to be provided

175G   Disputed accounts

Subdivision B--End of lease statements

175H   End of lease statement

Division   6--Certain transactions not to be treated as new consumer leases

175J   Changes etc. under consumer leases

Division   7--Changes to obligations under consumer leases

Subdivision A--Changes by agreement of parties

177A   Changes by agreement

Subdivision B--Changes on grounds of hardship and unjust transactions

177B   Changes on grounds of hardship

177C   Notice of change

177D   Changes by court

177E   Lessor may apply for variation of change

177F   Court may reopen unjust transactions

177G   Orders on reopening of transactions

177H   Applications by ASIC

177J   Time limit

177K   Joinder of parties

Division   8--Repossession, termination and enforcement of consumer leases

Subdivision A--Repossession of goods under consumer lease

178   Notice of repossession

Subdivision B--Termination of consumer lease by lessee

178A   Termination before goods have been provided

179   Termination after goods have been provided

179A   Statement of amount payable on termination

179B   Court may determine amount payable on termination if lessor does not

179C   One - off notice to be given the first time a direct debit default occurs

Subdivision C--Enforcement of consumer leases

179D   Requirements to be met before lessor can enforce consumer lease against defaulting lessee

179E   Defaults may be remedied

179F   Effect of hardship notices on enforcement

179G   Requirements to be met before lessor can enforce an acceleration clause

179GA   Limit on amount that may be recovered if there is default under a consumer lease

Subdivision D--Postponement of enforcement proceedings

179H   Postponement of exercise of rights

179J   Effect of negotiated postponement

179K   Postponement by court

179L   Lessor may apply for variation of postponement order

Subdivision E--Enforcement procedures for goods hired under a consumer lease

179M   Information as to location of goods hired under a consumer lease

179N   Entry to residential property to take possession of goods

179P   Court may order entry

179Q   Order for possession

Subdivision F--Enforcement expenses

179R   Recovery of enforcement expenses

Division   9--Linked lessors and tied consumer leases

Subdivision A--Interpretation and application

179S   Linked lessors and tied consumer leases

Subdivision B--Liability of lessors for suppliers' misrepresentations

179T   Lessor liable for supplier's misrepresentations about hired goods

Division   10--Conduct relating to consumer leases

179U   False or misleading representations

179V   Harassment

179VA   Canvassing of consumer leases for household goods

179VB   Using postal, telegraphic, telephonic or other like services to enter into a consumer lease for an indefinite period

179VC   Entering into a consumer lease for an indefinite period in the course of constitutional trade and commerce

Division   11--Other Code provisions applicable to consumer leases

179W   Application of certain Code provisions to consumer leases

Part   12--Miscellaneous

Division   1--Tolerances and assumptions

180   Tolerances and assumptions relating to information

181   Tolerances relating to contracts and other documents

182   Regulations

Division   2--Documentary provisions

183   Form of notices

184   Legibility and language

185   Copies of contracts and other documents

185A   Records of nominations of persons to occupy reverse mortgaged properties

186   Signing of documents

187   Electronic transactions and documents

Division   3--General provisions

188   Assignment by credit provider

189   Assignment by debtor, mortgagor or guarantor

190   Appropriation of payments

191   Contracting out

192   Indemnities

193   Effect of noncompliance

194   Giving notice or other document

195   Manner of giving notice or other document

196   Date of notice or other document

197   Extensions of time

198   Orders of court

199   Conduct of agents and related matters

Division   4--Provisions relating to offences

200   Offences by officers, agents or employees

201   Offences by corporations

202   Limitations

203   Application of section   4K of the Crimes Act 1914

Division   5--Exemptions from this Code

203A   Exemptions by ASIC

203B   Exemptions by the regulations

Part   13--Principal definitions

204   Principal definitions

Part   14--Miscellaneous provisions relating to interpretation

Division   1--Preliminary

205   Displacement of Part by contrary intention

Division   2--General

207   References to particular Acts and to enactments

208   Compliance with forms

Division   3--Terms and references

209   Provisions relating to defined terms and gender and number

210   Meaning of may and must etc.

211   Effect of express references to bodies corporate and individuals

212   Reference to certain provisions of Code

213   Reference to provisions of this Code or an Act is inclusive

Division   4--Functions and powers

214   Power to make instrument or decision includes power to amend or repeal

215   Matters for which statutory instruments may make provision

216   Presumption of validity and power to make

217   Exercise of powers between enactment and commencement

Division   5--Distance, time and age

218   Matters relating to distance, time and age

Endnotes

Endnote 1--About the endnotes

Endnote 2--Abbreviation key

Endnote 3--Legislation history

Endnote 4--Amendment history