New South Wales Bills Explanatory Notes

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USURY, BILLS OF LADING, AND WRITTEN MEMORANDA (REPEAL) BILL 1990

Act No. 7 of 1990

USURY, BILLS OF LADING, AND WRITTEN MEMORANDA

(REPEAL) BILL 1990

NEW SOUTH WALES
EXPLANATORY NOTE

(This Explanatory Note relates to this Bill as introduced into Parliament)

The object of this Bill is to repeal the Usury, Bills of Lading, and Written
Memoranda Act 1902 and to re-enact certain of its provisions that arc still of
practical utility in other Acts.

Repeal of sections 2, 3, 4, 8 and Schedule

The proposed Act will repeal, and not re-enact, sections 2, 3, 4 and 8 of and the
Schedule to the Usury, Bills of Lading, and Written Memoranda Act 1902.

Section 2 gives effect to the Schedule which lists the Acts and sections of Acts
which were repealed on commencement of the Usury, Bills of Lading, and Written
Memoranda Act 1902. The operation of section 28 of the Interpretation Act 1987,
which prevents the revival of previously repealed Acts or statutory rules as a
consequence of the repeal of the later repealing Act or section, means that the repeal
of section 2 and the Schedule of the subject Act will not revive the older Iegislation.

Section 2 and the Schedule arc therefore spent.

Section 3 provides that no Imperial Act relating to usury is to have effect in New
South Wales. Following enactment of the Imperial Acts Application Act 1969, which
specified the Imperial Acts continuing to apply in this State, the section is no longer
required.

Section 4 limits the amount of interest that may be recovered by legal action for
a loan or under any other contract to 8% where no rate of interest is otherwise
provided. This provision has been largely superseded by the Credit Act 1984,
particularly sections 36 and 42. Section 36 of that Act requires a loan contract to
include a statement of the annual percentage rate and section 42 of that Act renders
a debtor not liable to the credit charge where section 36 is not complied with. Thus,
if no interest rate is specified, the debtor is not liable for any credit charge.

Section 8 provides that a guarantee is not invalid only because the consideration
for the guarantee does not appear in writing or by necessary inference from a written
document. The section was originally considered necessary because it was decided
that section 4 of the Statute of Frauds, which required an agreement to be in writing,
extended to both the promise and the consideration for it. As the Statute of Frauds
has been repealed, section 8 may also be repealed.

Transfer of sections 5, 6 and 7 to Sale of Goods Act 1923

Sections 5, 6 and 7 deal with certain consequences of consignment or indorsement
of bill so flading.Where a bill of lading is delivered to the consignee named in it, or
is transferred by indorsement to an
indossee, with the intention and effect of passing
the property in the goods specified in it, the rights and liabilities under the contract
contained in the bill of lading are, by the provisions, transferred to the consignee or
indorsee as if the contract had been made with that person. The person is therefore
entitled, on presenting the bill of lading, to claim delivery of the goods and the
shipowner cannot escape liability for their non-delivery unless the shipowner
succeeds in proving either that the goods were never in fact shipped, or that the
non-delivery was occasioned by some excepted peril. The consignee or indorsee must
in turn take delivery of the goods and gay the freight reserved by the bill of lading,
the shipowner being entitled to withhold delivery until that freight has been paid or
tendered, or until any other lien existing at common law or created by the bill of
lading has been discharged.

The provisions do not affect certain existing rights such as any right of stoppage
in transitu or deprive the shipowner of the right to claim the freight from the original
shipper or owner of the goods.

It is further provided that a bill of lading in the hands of a consignee or indorsee
for valuable consideration, representing goods to have been shipped, is conclusive
evidence of shipment as against the master or other person signing it, even if the
goods or some part of them may not have been shipped, unless the holder of the bill
of lading had, at the time when he or she became holder, actual notice that the goods
had not in fact been put on board.

Proposed section 4 re-enacts sections 5, 6 and 7 in line with legislation in force
in the United Kingdom and other Australian jurisdictions as sections 50A - 50C of
the Sale of Goods Act 1923.

Transfer of section 8A to Law Reform (Miscellaneous Provisions) Act 1965

Section 8A provides that a person who is surely for the debt or duty of another,
and who pays the debt or performs the duty, is to be entitled to have assigned to him
or her, or to a trustee on his or her behalf, all the securities that the principal creditor
had against the debtor.

Section 8A was relied on successfuly in D & J Fowler (Australia) Ltd and anor v.

Bank of New South Wales and ors [1982] 2 NSWLR 879.
Proposed section 5 re-enacts the provision in substantially the same form as is in
force in South Australia and Victoria as section 3 of the Law Reform (Miscellaneous
Provisions) Act 1965.

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Act No. 7 of 1990

Usury, Bills of Lading, and Written Memoranda (Repeal) 1990
Clause l specifies the short title of the proposed Act.

Clause 2 provides that the proposed Act is to commence on a day to be appointed
by proclamation.

Clause 3 repeals the Usury, Bills of Lading, and Written Memoranda Act 1902.

Clause 4 amends the Sale of Goods Act 1923 as described above.

Clause 5 amends the Law Reform (Miscellaneous Provisions) Act 1965 as
described above.

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