New South Wales Consolidated Acts

HOMEFUND COMMISSIONER ACT 1993 - SECT 25

25 Determinations

(1) The Commissioner may make determinations about the whole or any part of the subject-matter of a complaint.

(2) A determination applies to such of the following as are named in the determination as being covered by it:

(a) the parties to a HomeFund mortgage,

(b) the parties to an ancillary contract or arrangement to which a HomeFund borrower is or was a party (including, for example, a real estate developer, real estate agent or Australian legal practitioner),

(c) a co-operative housing society,

(d) the Department of Housing,

(e) FANMAC,

(f) any person or body (other than a person or body referred to in paragraphs (a)-(e)) who appears to be materially involved in the subject-matter of the complaint,

(g) any person or body (other than a person or body referred to in paragraphs (a)-(f)) who consents to being covered by the determination.

(2A) A person or body cannot be named as a party to a determination unless the person or body has been given notice of the investigation of the complaint (under section 14) and an opportunity to make submissions on the subject-matter of the complaint (under section 22).

(3) Determinations may be made, only, for any one or more of the following:

(a) relieving a HomeFund borrower of specified obligations, including current or future payments and arrears of payments,

(b) setting aside or altering a HomeFund mortgage,

(c) setting aside a HomeFund mortgage and entering into a new transaction,

(d) ordering the payment to a HomeFund borrower by a person or body (other than a HomeFund borrower) of an amount of money, whether by way of damages or compensation, or otherwise, for financial loss (including, without limitation, ordering a refund of payments made by a HomeFund borrower),

(e) ordering the payment to the FANMAC trustee by a person or body (other than a HomeFund borrower) of an amount referred to in section 26B (1) (b),

(f) granting such other relief as is consequential or ancillary to the relief granted by paragraphs (a)-(e),

(g) ordering the doing of anything else that is necessary to give effect to the determination.

(4) The Commissioner is not to make a determination applying to any person or body (other than a HomeFund borrower) unless satisfied that the complainant has (apart from this Act) an entitlement to a legal remedy against that person or body in relation to the complaint.

(5) Having established that entitlement, the determination may give such relief (of the kind authorised by subsection (3)) as appears to be appropriate in the circumstances and to the entitlement. Accordingly, the relief need not be identical to that which would be available to be given by a court or tribunal in similar circumstances.

(6) Nothing in this section affects the operation of section 26, 26A, 26B or 26C or the power to make a determination under section 27.

(7) Without affecting the generality of subsection (3) (g), an order referred to in that paragraph may order the disposition of an interest in land, either by the holder of the interest or, if the holder fails to comply with such an order, by some other person.

(8) The regulations may make provision for or with respect to the things that must be done before an order for the disposition of land takes effect, and any person (including the Registrar-General) who is required by the regulations to do any thing is authorised to do it.

(9) No stamp duty is payable in connection with an instrument that is required to be executed for the purpose of giving effect to any relief granted by a determination.