New South Wales Consolidated Acts

CREDIT ACT 1984 - SECT 5

5 Definitions

(1) In this Act, unless the contrary intention appears:
"acceptable rate of interest", in relation to a loan contract or a continuing credit contract, means an annual percentage rate that the credit provider agrees to accept so long as the debtor duly observes and performs the terms of the contract.
"account charge", in relation to a continuing credit contract, means:

(a) in relation to the period of twelve months after the contract is made-the sum (not exceeding $100 or, where some other amount is prescribed, that other amount) of:

(i) any amount that, under the contract, is payable by the debtor to the credit provider as the fixed fee or other charge for entering into the contract, and

(ii) any amount that, under the contract, is payable by the debtor to the credit provider as the fixed annual fee or other annual charge in respect of that period, or

(b) in relation to any other period of twelve months-any amount (not exceeding $50 or, where some other amount is prescribed, that other amount) that, under the contract, is payable by the debtor to the credit provider as the fixed annual fee or other annual charge in respect of that period.

"accrued credit charge", in relation to a credit sale contract or a loan contract at a particular time, means:

(a) the minimum credit charge, or

(b) the amount of any credit charge which, under the contract, has accrued at that time calculated as provided in section 11,

whichever is the greater.
"actuarial method", in relation to a calculation for the purposes of a credit sale contract or a loan contract, means the method under which:

(a) it is assumed that all payments by the debtor under the contract will be made on the respective dates on which they fall due and that credit will be provided at the time or times determined under the contract, and

(b) payments by the debtor under the contract are allocated between the amount of the credit charge and the amount financed so that each payment is applied first to the accrued credit charge at the date on which the payment is due and:

(i) if the amount of the payment is greater than the amount of the accrued credit charge on the date on which the payment is made, the remaining amount of the payment is applied to the unpaid balance of the amount financed, or

(ii) if the amount of the payment is less than the amount of the accrued credit charge on the date on which the payment is made, the amount of the difference between the payment and the accrued credit charge is added to the unpaid balance of the amount financed.

"amount financed" means:

(a) in relation to a regulated credit sale contract-the sum of the balance of the cash price required to be stated in accordance with clause 1 (c) of Schedule 2 and the total of the amounts required to be stated in accordance with clause 1 (d) to clause 1 (i) of Schedule 2,

(b) in relation to any other credit sale contract-the sum of the cash price (less the deposit, if any) and amounts payable under the contract by the debtor to the credit provider that, if the contract were a regulated credit sale contract, would be required to be stated in accordance with clause 1 (d) to clause 1 (i) of Schedule 2,

(c) in relation to a regulated loan contract-the sum of the amounts required to be stated in accordance with clause 1 of Schedule 4, or

(d) in relation to any other loan contract-the sum of the amount agreed under the contract to be lent and amounts payable under the contract by the debtor to the credit provider that, if the contract were a regulated loan contract, would be required to be stated in accordance with clause 1 (b) to clause 1 (f) of Schedule 4.

"annual percentage rate" means annual percentage rate within the meaning of section 10.
"bank" means a bank within the meaning of the Banking Act 1959 of the Commonwealth as amended and in force for the time being or a bank constituted by a law of a State or of the Commonwealth.
"billing cycle" means billing cycle as referred to in section 50.
"body corporate" does not, except in the case of a credit provider that is a body corporate, include:

(a) an owners corporation within the meaning of the Strata Schemes Management Act 1996 , or

(b) a company owning an interest in land and having a memorandum or articles of association conferring on owners of shares in the company the right to occupy certain parts of a building erected on that land,

all or the majority of which lots or parts, as the case may be, are intended to be occupied as dwellings.
"cash" includes cheques.
"cash price", in relation to a contract of sale of, or credit sale contract relating to, goods or services:

(a) unless the contract is one to which paragraph (b), (c) or (d) applies-means the price payable under the contract for the goods or services,

(b) where, under the contract, credit for the payment for the goods or services is, or is to be, provided by the supplier or by a linked credit provider of the supplier and, at the time at which the contract is made, the goods or services are available for purchase from the supplier for cash-means the lowest price at which at that time the buyer might have bought the goods or services from the supplier for cash,

(c) where, under the contract, credit for the payment for the goods or services is, or is to be, provided by the supplier or by a linked credit provider of the supplier and, at the time at which the contract is made, the goods or services are reasonably available for purchase for cash but are not available for purchase from the supplier for cash-means the price at which at that time the buyer might reasonably have bought goods or services of that kind for cash,

(d) where, under the contract, credit for the payment for the goods or services is, or is to be, provided by the supplier or by a linked credit provider of the supplier and, at the time at which the contract is made, the goods or services are not reasonably available for purchase for cash-means the amount that is:

(i) in the case of a sale of goods, the reasonable value of the goods at that time,

(ii) in the case of a sale of services, the reasonable value at that time of the services (whether or not they have been supplied), or

(iii) in the case of a contract of sale that is a contract of sale of both goods and services, the sum of the reasonable value of the goods at that time and the reasonable value at that time of the services (whether or not they have been supplied), or

(e) where some other price is prescribed in relation to the contract-means that price.

"commercial vehicle" means:

(a) a motor vehicle or trailer within the meaning of the Road Transport (General) Act 2005 constructed or adapted principally for the carriage of goods but does not include a motor vehicle of the kind known as a utility, a station wagon or a panel van, or

(b) a vehicle without motive power of its own and constructed or adapted principally for the carriage of goods and for being drawn by a motor vehicle within the meaning of that Act.

"commission charge", in relation to a regulated credit sale contract or a regulated loan contract, means an amount paid or payable (whether directly or indirectly and whether or not pursuant to an agreement or undertaking) by way of commission or as a payment in the nature of a commission (however described), being an amount:

(a) that is paid or payable in respect of the introduction of the debtor to the credit provider and paid or payable by the credit provider or the spouse of the credit provider or, where the credit provider is a body corporate, the credit provider or a related body corporate with the meaning of the Corporations Act 2001 of the Commonwealth, or

(b) that is paid or payable in connection with a contract:

(i) that is connected with the regulated credit sale contract or regulated loan contract, and

(ii) the consideration for which is wholly or partly included within the amount financed.

"compulsory insurance", in relation to goods, means any insurance in relation to liability in respect of death or bodily injury caused by or arising out of the use of the goods, being insurance required by the law of the place where the goods are or are being or are to be used.
"continuing credit contract" means a continuing credit contract within the meaning of section 48.
"contract for the hiring of goods" includes a contract for the lease of goods or for the grant of a licence to use goods and any other contract for the bailment of goods.
"credit" includes any form of financial accommodation other than:

(a) credit provided to a debtor, for the purposes of a business carried on by the debtor, by:

(i) a documentary letter of credit,

(ii) discounting, or becoming a party to or the holder of, a bill of exchange or other negotiable instrument, or

(iii) becoming surety for a debtor,

(b) credit provided for the purchase of goods for re-supply,

(c) credit provided for the purchase of goods that:

(i) are raw materials, or

(ii) are ordinarily acquired for the purpose of treating or repairing other goods or fixtures on land or of being incorporated in other goods,

for the purposes of transforming them, or incorporating them in other goods:

(iii) in trade or commerce,

(iv) in the course of a process of production or manufacture, or

(v) in the course of repairing or treating other goods or fixtures on land,

(d) credit provided for the purchase of services, where the buyer has contracted to provide those services, or goods and services that include those services, to a third person, or

(e) any transaction prescribed as being a transaction that is not credit within the meaning of this Act.

"credit charge" means credit charge within the meaning of section 11 (1).
"credit contract" means:

(a) a credit sale contract,

(b) a loan contract, or

(c) a continuing credit contract.

"credit provider" means:

(a) in relation to a credit contract, the person providing credit under the contract in the course of a business carried on by that person, or

(b) in relation to a proposed credit contract, the person by whom credit is to be provided under the contract in the course of a business carried on by that person.

"credit sale contract" means, subject to sections 13 and 14, a contract of sale of goods or services where in respect of the payment for the goods or services credit is, or is to be, provided to a debtor, being a buyer but not being a body corporate, by a supplier in the course of a business carried on by the supplier and, under the contract:

(a) a charge is made for the provision of credit,

(b) the amount payable by the debtor is not required to be paid within the period of four months after credit is provided under the contract, or

(c) the amount payable by the debtor may be paid by five or more instalments or by a deposit and four or more instalments,

but does not include any contract of a class or description of contracts prescribed as being credit sale contracts that are not credit sale contracts within the meaning of this Act.
"cross-claim" includes counter-claim, set-off and third party claim.
"daily percentage rate", in relation to a credit sale contract or a loan contract, means the rate determined by dividing the annual percentage rate under the contract by 365.
"debtor" means:

(a) in relation to a credit contract, the person to whom credit is provided under the contract, or

(b) in relation to a proposed credit contract, the person to whom credit is to be provided under the contract.

"default charge" means:

(a) in relation to a regulated credit sale contract or a regulated loan contract, a charge made by a credit provider in accordance with section 72, or

(b) in relation to any other credit contract, an amount payable under the contract by the debtor by reason of the debtor’s failure to fulfil his or her obligations under the contract, other than an amount payable under the contract otherwise than by reason of that failure.

"deferral charge" means:

(a) in relation to a regulated credit sale contract or a regulated loan contract, a charge made by a credit provider in respect of the deferral of the payment of an amount in accordance with section 71, or

(b) in relation to any other credit sale contract or loan contract, a charge made by a credit provider in respect of the deferral of the payment of an amount payable under the contract by the debtor.

"deposit" means:

(a) in relation to a credit sale contract relating to goods-an amount that, under the contract, was paid or payable by the buyer to the supplier on or before the delivery of the goods or, where the delivery is not completed on one day, on or before the commencement of the delivery,

(b) in relation to a credit sale contract relating to services-an amount that, under the contract, was paid or payable by the buyer to the supplier on or before the commencement of the supply of the services, or

(c) in relation to a credit sale contract relating to goods and services-an amount that, under the contract, was paid or payable by the buyer to the supplier on or before the commencement of the delivery or supply of the goods and services,

and, where there is a trade-in allowance, includes the trade-in allowance.
"determination", in relation to a court or the Tribunal, includes order, direction, decision and declaration.
"Director-General" means the Director-General of the Department of Fair Trading.
"discharge", in relation to a contract, means discharge of the contract, so far as it is executory, otherwise than by frustration.
"enforcement expense" means:

(a) in relation to a regulated contract-an amount that, subject to section 76, the debtor is liable to pay to the credit provider in relation to the exercise of a right under the contract arising from the default of the debtor,

(b) in relation to a regulated mortgage-an amount that, subject to section 93, the mortgagor is liable to pay to the mortgagee in relation to the exercise of a right under the mortgage arising from the default of the mortgagor, or

(c) in relation to any other credit contract or mortgage-an amount expended or the amount of a liability incurred by the credit provider or mortgagee under the contract or mortgage to remedy a default of the debtor or mortgagor or in the exercise of rights of the credit provider or mortgagee under the contract or mortgage arising by reason of the default.

"estimated credit charge", in relation to a credit sale contract or a loan contract under which the whole or a part of the credit charge is a credit charge other than a pre-determined credit charge or a minimum credit charge, means the amount of that whole or part that, when the contract is made, is an amount that can be calculated:

(a) on the assumption that all amounts payable under the contract are paid on the respective dates on which, under the contract, they are required to be paid, or

(b) in accordance with an applicable method prescribed for the purposes of calculating estimated credit charges.

"farm machinery" means:

(a) a harvester, binder, tractor, plough or other agricultural implement, or

(b) any other goods of a class commonly used for the purposes of a farming undertaking that are prescribed as being farm machinery for the purposes of this Act,

where the goods are acquired for the purposes of a farming undertaking.
"farming undertaking" includes:

(a) any agricultural, apicultural, dairy farming, horticultural, orcharding, pastoral, poultry keeping, viticultural or other business involving the cultivation of the soil, the gathering of crops or the rearing of livestock,

(b) the business of taking fish, crustacea, oysters or any other marine, estuarine or fresh-water animal life,

(c) the cutting of timber for sale, and

(d) any class of business prescribed as a farming undertaking.

"financial counselling trust fund" means the fund established in accordance with the regulations as referred to in section 167 (1) (e).
"goods" includes:

(a) all chattels personal other than things in action and money,

(b) fixtures severable from the realty, and

(c) any present or future product of a farming undertaking, including any agricultural or horticultural produce, wool and the increase or progeny of stock,

but does not include any goods of a class or description prescribed as being goods that are not goods within the meaning of this Act.
"guarantee" includes indemnity.
"guarantor" means a person who enters into a contract of guarantee in respect of the performance by a debtor or mortgagor of the debtor’s or mortgagor’s obligations under a credit contract or mortgage or a person who enters into a contract of indemnity in relation to a credit contract or mortgage but does not include a body corporate or:

(a) a person who is the supplier, or spouse of the supplier, of goods or services to which the contract or mortgage relates or, where the supplier is a body corporate, a person who is a director or officer of the body corporate or is a related body corporate within the meaning of the Corporations Act 2001 of the Commonwealth or a director or officer of such a related corporation or spouse of such a director or officer, or

(b) a person who enters into a contract of guarantee or a contract of indemnity:

(i) in respect of the obligations under a credit contract of a person who deals in goods or services of the kind to which the contract relates, or

(ii) in respect of the obligations of a debtor under a loan contract made for the purposes of the acquisition of goods of a kind in which the debtor deals.

"instalment" does not include a deposit.
"judgment" includes order.
"land" has the same meaning as it has in the Conveyancing Act 1919 .
"linked credit provider", in relation to a supplier, means a credit provider:

(a) with whom the supplier has a trade or tie agreement,

(b) to whom the supplier, by arrangement with the credit provider, regularly refers persons for the purpose of obtaining credit,

(c) whose forms of contract or forms of application or offers for credit are, by arrangement with the credit provider, made available to persons by the supplier, or

(d) with whom the supplier has an agreement or arrangement, whether formal or informal, under which contracts or applications or offers for credit from the credit provider may be signed by persons at the premises of the supplier.

"loan contract", subject to section 15, means a contract under which a person in the course of a business carried on by the person provides or agrees to provide, whether on one or more occasions, credit to another person, not being a body corporate, in one or more of the following ways:

(a) by paying an amount to or in accordance with the instructions of that other person,

(b) by applying an amount in satisfaction or reduction of an amount owed to the person by that other person,

(c) by varying the terms of a contract under which moneys owed to the person by that other person are payable,

(d) by deferring an obligation of that other person to pay an amount to the person,

(e) by taking from that other person a bill of exchange or other negotiable instrument on which that other person (whether alone or with another person or other persons) is liable as drawer, acceptor or endorser,

but does not include any contract of a class or description of contracts prescribed as being loan contracts that are not loan contracts within the meaning of this Act.
"minimum credit charge", in relation to a credit sale contract or a loan contract, means the amount (if any) that, under the contract, is the minimum amount payable to the credit provider by the debtor under the contract as a credit charge.
"mortgage" means an instrument or transaction by or under which a security interest is reserved or created or otherwise arises.
"officer", in relation to a body corporate, includes a person who is an officer of the body corporate within the meaning of section 82A of the Corporations Act 2001 of the Commonwealth.
"pastoral finance company" means a person carrying on a business of financing pastoral pursuits or a business of stock or station agents to whom an order in force under section 11 of the Banking Act 1959 of the Commonwealth as amended and in force for the time being applies.
"pre-determined credit charge", in relation to a credit contract that specifies a fixed amount as the whole or part of the credit charge (not being a minimum credit charge), means that fixed amount.
"prescribed" means prescribed by this Act or the regulations.
"property" includes any thing in action and any interest in real or personal property.
"recognized State" means a State or Territory in respect of which a declaration referred to in section 17 is in force.
"record" includes any book, account, document, paper or other source of information compiled, recorded or stored in written form, or on microfilm, or by electronic process, or in any other manner or by any other means.
"registration fees", in relation to goods, means an amount payable under the law of a State or Territory in connection with the registration or use of the goods including any amount payable for compulsory insurance.
"regulated continuing credit contract" means a continuing credit contract to which Part 3 applies.
"regulated contract" means a regulated credit sale contract, regulated loan contract or regulated continuing credit contract.
"regulated credit sale contract" means a credit sale contract to which Part 3 applies.
"regulated loan contract" means a loan contract to which Part 3 applies.
"regulated mortgage" means a mortgage to which Part 4 applies.
"regulation" means a regulation under this Act.
"rescission", in relation to a contract, means avoidance of the contract as from its beginning.
"security interest" means an interest or power:

(a) reserved in or over an interest in goods or other property, or

(b) created or otherwise arising in or over an interest in goods or other property under a bill of sale, mortgage, charge, lien, pledge, trust or power,

by way of security for the payment of a debt or other pecuniary obligation or the performance of any other obligation but does not include an interest or a power reserved, created or otherwise arising under a contract for the hiring of goods that is not by section 13 deemed to be a credit sale contract.
"services" includes the rights and benefits that are, or are to be, supplied under:

(a) a contract for or involving:

(i) the performance of work (including work of a professional nature), or

(ii) the provision of, or the use or enjoyment of, facilities for amusement, entertainment, recreation or instruction,

(b) a contract of insurance (including life assurance), or

(c) a contract under which one person grants or confers, or purports to grant or confer, a franchise or other right, benefit or privilege to one or more other persons in consideration of the investment by that other person, or those other persons, of money and the performance by that or those other persons of work associated with that investment,

whether the contract is express or implied and, if it is express, whether it is oral or in writing and whether the services are supplied to order or by making them available to potential users, but does not include:

(d) the provision of credit,

(e) any rights or benefits of a prescribed class or description that are prescribed as being rights or benefits that are not services within the meaning of this Act, or

(f) any rights or benefits that are, or are to be, supplied under a contract of a prescribed class or description and are prescribed as being rights or benefits that are not services within the meaning of this Act.

"spouse" of a person includes a person with whom the person has a de facto relationship within the meaning of the Property (Relationships) Act 1984 .
"statutory rebate" means:

(a) in relation to insurance charges (other than prescribed insurance charges) included in the amount financed under a regulated contract, the sum of:

(i) the amount of premium paid in respect of a period of the insurance contract not yet commenced, and

(ii) 90 per centum of the proportion of the amount of the premium for insurance paid in respect of the current period of the insurance contract attributable to the unexpired portion of that period consisting of whole months,

(b) in relation to prescribed insurance charges included in the amount financed under a regulated contract-the amount ascertained in the prescribed manner, and

(c) in relation to maintenance charges included in the amount financed under a regulated contract in respect of maintenance of goods-the amount derived by multiplying the amount of maintenance charges by the number of whole months in the unexpired portion of the period for which maintenance is agreed to be provided and dividing the product so obtained by the number of whole months for which maintenance is agreed to be provided.

"supplier":

(a) in relation to a contract of sale, credit sale contract or contract for the hiring of goods, means a person who supplies goods or services, or

(b) in relation to a continuing credit contract, means a person who supplies goods or services or cash.

"supply" includes:

(a) in relation to goods, supply (including re-supply within the meaning of subsection (2)) by way of sale or exchange, or

(b) in relation to services, provide, grant or confer.

"Territory" means Territory of the Commonwealth.
"this Act" includes the regulations.
"tied continuing credit contract" means tied continuing credit contract within the meaning of section 12 (2).
"tied loan contract" means tied loan contract within the meaning of section 12 (1).
"trade-in allowance", in relation to a contract of sale of goods or services, means an amount by which the cash price or amount payable under the contract is, or is to be, reduced in respect of an interest in property sold or transferred or agreed to be sold or transferred to the supplier or another person.
"trade or tie agreement", in relation to a credit provider and a supplier, means an agreement or arrangement, whether formal or informal, relating to:

(a) the supply to the supplier of goods or services in which the supplier deals,

(b) the business of supplying goods or services carried on by the supplier, or

(c) the provision of credit to purchasers in respect of the payment for goods or services supplied by the supplier.

"Tribunal" means the Consumer, Trader and Tenancy Tribunal established by the Consumer, Trader and Tenancy Tribunal Act 2001 .

(2) In this Act, unless the contrary intention appears:

(a) a reference to goods or services includes a reference to goods and services, and

(b) a reference to the re-supply of goods bought from a person includes a reference to:

(i) a supply of the goods to another person in an altered form or condition, and

(ii) a supply to another person of goods in which the first-mentioned goods have been incorporated.

(3) In this Act, unless the contrary intention appears, where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.

(4) Where a regulation made for the purposes of this section:

(a) prescribes an amount other than $20,000 as the monetary limit for the purposes of this Act, a reference in this Act (including this section) to $20,000 shall be construed as a reference to the amount so prescribed, or

(b) prescribes an annual percentage rate other than 14 per centum as the annual percentage rate for the purposes of this Act, a reference in this Act (including this section) to a rate of 14 per centum shall be construed as a reference to the annual percentage rate so prescribed.