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CONSUMER CREDIT (QUEENSLAND) BILL 1994

Queensland CONSUMER CREDIT (QUEENSLAND) BILL 1994

 


 

Queensland CONSUMER CREDIT (QUEENSLAND) BILL 1994 TABLE OF PROVISIONS Section Page PART 1--PRELIMINARY Division 1--Introductory 1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Division 2--Interpretation 3 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 PART 2--CONSUMER CREDIT (QUEENSLAND) CODE AND CONSUMER CREDIT (QUEENSLAND) REGULATIONS 4 Application in Queensland of the Consumer Credit Code . . . . . . . . . . . . . . 15 5 Application of regulations under Consumer Credit Code . . . . . . . . . . . . . . . 15 6 Interpretation of expressions in the Consumer Credit (Queensland) Code and the Consumer Credit (Queensland) Regulations . 15 PART 3--CONFERRAL OF JUDICIAL AND ADMINISTRATIVE FUNCTIONS 7 Conferral of judicial functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 8 Conferral of administrative functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 PART 4--POWER TO MAKE REGULATIONS UNDER CONSUMER CREDIT CODE 9 Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 10 General regulation-making power for Code . . . . . . . . . . . . . . . . . . . . . . . . . . 17 11 Savings and transitional regulations for Code . . . . . . . . . . . . . . . . . . . . . . . . 17 PART 5--MISCELLANEOUS 12 Special savings and transitional regulations for Queensland . . . . . . . . . . . . 18 13 Act binds all persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

 


 

2 Consumer Credit (Queensland) 14 Maximum annual percentage rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 APPENDIX CONSUMER CREDIT CODE PART 1--PRELIMINARY 1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 3 Interpretation generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 4 Meaning of "credit" and "amount of credit" . . . . . . . . . . . . . . . . . . . . . . . . . 19 5 Meaning of "credit contract" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 6 Provision of credit to which this Code applies . . . . . . . . . . . . . . . . . . . . . . . 20 7 Provision of credit to which this Code does not apply . . . . . . . . . . . . . . . . . 21 8 Mortgages to which this Code applies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 9 Guarantees to which this Code applies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 10 Goods leases with option to purchase to be regarded as sale by instalments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 11 Presumptions relating to application of Code . . . . . . . . . . . . . . . . . . . . . . . . 25 PART 2--CREDIT CONTRACTS Division 1--Negotiating and making credit contracts 12 Credit contract to be in form of written contract document . . . . . . . . . . . . . 25 13 Other forms of contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 14 Precontractual disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 15 Matters that must be in contract document . . . . . . . . . . . . . . . . . . . . . . . . . . 27 16 Form and expression of contract document . . . . . . . . . . . . . . . . . . . . . . . . . . 31 17 Alteration of contract document . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 18 Copy of contract for debtor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 19 When debtor may terminate contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 20 Offence for noncompliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Division 2--Debtor's monetary obligations 21 Prohibited monetary obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 22 Offences related to prohibited monetary obligations . . . . . . . . . . . . . . . . . . 33 23 Loan to be in money or equivalent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 24 Early payments and crediting of payments . . . . . . . . . . . . . . . . . . . . . . . . . . 33

 


 

3 Consumer Credit (Queensland) Division 3--Interest charges 25 Definitions relating to interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 26 Limit on interest charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 27 Early debit or payment of interest charges prohibited . . . . . . . . . . . . . . . . . 35 28 Default interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Division 4--Fees and charges 29 Prohibited credit fees or charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 30 Fees or charges passed on to other parties . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Division 5--Credit provider's obligation to account 31 Statements of account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 32 Information to be contained in statements of account . . . . . . . . . . . . . . . . . 37 33 Opening balance must not exceed closing balance of previous statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 34 Statement of amount owing and other matters . . . . . . . . . . . . . . . . . . . . . . . 39 35 Court may order statement to be provided . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 36 Disputed accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Division 6--Certain transactions not to be treated as contracts 37 Deferrals, waivers and changes under contracts . . . . . . . . . . . . . . . . . . . . . . 41 PART 3--RELATED MORTGAGES AND GUARANTEES Division 1--Mortgages 38 Form of mortgage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 39 Copy of mortgage for mortgagor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 40 Mortgages over all property void . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 41 Restriction on mortgage of future property . . . . . . . . . . . . . . . . . . . . . . . . . . 43 42 Mortgages and continuing credit contracts . . . . . . . . . . . . . . . . . . . . . . . . . . 43 43 All accounts mortgages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 44 Third party mortgages prohibited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 45 Maximum amount which may be secured . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 46 Prohibited securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 47 Assignment or disposal of mortgaged property by mortgagor . . . . . . . . . . . . 45 48 Conditions on consent to assignment or disposal of property subject to mortgage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 49 Offence for noncompliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

 


 

4 Consumer Credit (Queensland) Division 2--Guarantees 50 Form of guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 51 Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 52 Copies of documents for guarantor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 53 Guarantor may withdraw before credit is provided . . . . . . . . . . . . . . . . . . . . 48 54 Extension of guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 55 Limitation of guarantor's liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 56 Increase in guarantor's liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 57 Offence for noncompliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 PART 4--CHANGES TO OBLIGATIONS UNDER CREDIT CONTRACTS, MORTGAGES AND GUARANTEES Division 1--Unilateral changes by credit provider 58 Application of Division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 59 Interest rate changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 60 Repayment changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 61 Credit fees and charges changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 62 Changes to credit limits etc. in continuing credit contracts . . . . . . . . . . . . . 54 63 Other unilateral changes by credit provider . . . . . . . . . . . . . . . . . . . . . . . . . . 54 64 Prohibited increases in liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Division 2--Changes by agreement of parties 65 Changes by agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Division 3--Changes on grounds of hardship and unjust transactions 66 Changes on grounds of hardship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 67 Notice of change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 68 Changes by Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 69 Credit provider may apply for variation of change . . . . . . . . . . . . . . . . . . . . 57 70 Court may reopen unjust transactions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 71 Orders on reopening of transactions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 72 Court may review unconscionable interest and other charges . . . . . . . . . . . 61 73 Time limit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 74 Joinder of parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

 


 

5 Consumer Credit (Queensland) PART 5--ENDING AND ENFORCING CREDIT CONTRACTS, MORTGAGES AND GUARANTEES Division 1--Ending of credit contract by debtor 75 Debtor's or guarantor's right to pay out contract . . . . . . . . . . . . . . . . . . . . . . 63 76 Statement of pay out figure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 77 Court may determine pay out figure if credit provider does not provide a pay out figure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 78 Surrender of mortgaged goods and goods subject to sale by instalments . . 64 79 Compensation to debtor or mortgagor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 Division 2--Enforcement of credit contracts, mortgages and guarantees 80 Requirements to be met before credit provider can enforce credit contract or mortgage against defaulting debtor or mortgagor . . . . . . . . . . . . 66 81 Defaults may be remedied . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 82 Requirements to be met before credit provider can enforce guarantee against guarantor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 83 Requirements to be met before credit provider can repossess mortgaged goods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 84 Acceleration clauses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 85 Requirements to be met before credit provider can enforce an acceleration clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 Division 3--Postponement of enforcement proceedings 86 Postponement of exercise of rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 87 Effect of negotiated postponement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 88 Postponement by Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 89 Credit provider may apply for variation of postponement order . . . . . . . . . . 72 Division 4--Enforcement procedures for goods mortgaged 90 Information as to location of mortgaged goods . . . . . . . . . . . . . . . . . . . . . . . 73 91 Entry to residential property to take possession of goods . . . . . . . . . . . . . . . 73 92 Court may order entry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 93 Order for possession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 94 Procedures to be followed by credit provider after taking possession of goods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 95 Mortgagor may nominate purchaser of goods taken by credit provider . . . . 75 96 Sale of goods by credit provider . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76

 


 

6 Consumer Credit (Queensland) 97 Matters for which account can be debited after mortgagee sale of goods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 98 Compensation to mortgagor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 Division 5--Enforcement expenses 99 Recovery of enforcement expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 PART 6--CIVIL PENALTIES FOR DEFAULTS OF CREDIT PROVIDERS Division 1--Civil penalties for breach of key disclosure and other requirements 100 Key requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 101 Application for order relating to key requirements . . . . . . . . . . . . . . . . . . . . 79 102 Civil penalty may be imposed for contravention of key requirement . . . . . 79 103 Penalty if application made by debtor or guarantor . . . . . . . . . . . . . . . . . . . 81 104 Payment of penalty to debtor or guarantor . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 105 Penalty if application made by a credit provider or Government Consumer Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 106 Payment of penalty to fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 107 Compensation for debtor or guarantor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 108 Recognition of civil penalty determined in other jurisdictions . . . . . . . . . . 83 109 Other jurisdiction more appropriate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 110 General provisions relating to applications by credit providers or Government Consumer Agencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 111 Government Consumer Agency may represent interests of debtors . . . . . . . 84 112 Directions pending Court's decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 113 Offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 Division 2--Other civil penalties 114 Civil effect of other contraventions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 PART 7--RELATED SALE CONTRACTS Division 1--Interpretation and application 115 Meaning of sale contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 116 Sale contracts to which this Part applies . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 117 Linked credit providers and tied credit contracts . . . . . . . . . . . . . . . . . . . . . 86

 


 

7 Consumer Credit (Queensland) Division 2--Liability of credit providers for suppliers' misrepresentations 118 Credit provider liable with respect to supplier's misrepresentations etc. about tied credit contract . . . . . . . . . . . . . . . . . . . . . 87 Division 3--Liability of credit providers in relation to goods 119 Right to damages under sale contract against both supplier and linked credit provider (cf. Trade Practices Act 1974 (Cwlth) s 73) . . . . . . 87 120 Limits on debtor's right of action against linked credit provider (cf. Trade Practices Act 1974 (Cwlth) s 73) . . . . . . . . . . . . . . . . . . . . . . . . . 89 121 Liability of supplier to linked credit provider (cf. Trade Practices Act 1974 (Cwlth) s 73) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 122 Interest may be awarded (cf. Trade Practices Act 1974 (Cwlth) s 73) . . . . 91 123 Subrogation of credit provider (cf. Trade Practices Act 1974 (Cwlth) s 73) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 Division 4--Termination of related transactions 124 Termination of sale contract which is conditional on obtaining credit . . . . 92 125 Termination of (or recredit under) tied credit contract if sale contract terminated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 126 Termination of linked maintenance services contract if credit contract terminated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 127 Termination of contract under this Part to be in writing . . . . . . . . . . . . . . . . 94 128 Powers of Court with respect to termination of contract under this Part . . . 94 129 Part 5 not to apply to termination of contract under this Part . . . . . . . . . . . 95 Division 5--Other provisions 130 Requirement as to source of credit for goods or services . . . . . . . . . . . . . . . 95 131 Prohibition on payment for goods or services by postdated bills of exchange or notes which exceed cash price of goods or services . . . . . . . . 95 PART 8--RELATED INSURANCE CONTRACTS 132 Meaning of credit-related insurance contract . . . . . . . . . . . . . . . . . . . . . . . . 95 133 Requirement to take out insurance or to insure with particular insurer or on particular terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 134 Financing of insurance premiums over mortgaged property . . . . . . . . . . . . . 97 135 Commission for consumer credit insurance . . . . . . . . . . . . . . . . . . . . . . . . . . 97 136 Supply of copy of credit-related insurance contract by insurer . . . . . . . . . . 98 137 Rejection of debtor's proposal for insurance . . . . . . . . . . . . . . . . . . . . . . . . . 98

 


 

8 Consumer Credit (Queensland) 138 Termination of consumer credit insurance contract if credit contract terminated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99 139 Termination of insurance contract over mortgaged property if credit contract terminated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99 PART 9--ADVERTISING AND RELATED CONDUCT 140 Advertising . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100 141 Persons liable for advertisements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100 142 Defence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 143 Interest rates which may be disclosed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 144 False or misleading representations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 145 Harassment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 146 Canvassing of credit at home . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 PART 10--CONSUMER LEASES Division 1--Interpretation and application 147 Meaning of consumer lease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 148 Consumer leases to which this Part applies . . . . . . . . . . . . . . . . . . . . . . . . 103 149 Consumer leases to which this Part does not apply . . . . . . . . . . . . . . . . . . 104 150 Presumptions relating to application of this Part . . . . . . . . . . . . . . . . . . . . 104 Division 2--Form of and information to be included in consumer leases 151 Form of consumer lease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105 152 Disclosures in consumer leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105 153 Copy of lease etc. for lessee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106 154 Further goods and deferrals or waivers under consumer leases . . . . . . . . . 107 Division 3--Other provisions applicable to consumer leases 155 Application of certain Code provisions to consumer leases . . . . . . . . . . . . 107 156 Notice of repossession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 157 Termination of lease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 PART 11--MISCELLANEOUS Division 1--Tolerances and assumptions 158 Tolerances and assumptions relating to information . . . . . . . . . . . . . . . . . . 109 159 Tolerances relating to contracts and other documents . . . . . . . . . . . . . . . . 110 160 Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110

 


 

9 Consumer Credit (Queensland) Division 2--Documentary provisions 161 Form of notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110 162 Legibility and language . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111 163 Copies of contracts and other documents . . . . . . . . . . . . . . . . . . . . . . . . . . 111 164 Signing of documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112 Division 3--General provisions 165 Crown to be bound . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112 166 Assignment by credit provider . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 167 Assignment by debtor, mortgagor or guarantor . . . . . . . . . . . . . . . . . . . . . . 113 168 Appropriation of payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 169 Contracting out . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 170 Effect of noncompliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 171 Giving notice or other document . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 172 Manner of giving notice or other document . . . . . . . . . . . . . . . . . . . . . . . . . 115 173 Date of notice or other document . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116 174 Extensions of time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116 175 Orders of Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116 176 Conduct of agents and related matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116 177 Reciprocal conferral of powers and jurisdiction . . . . . . . . . . . . . . . . . . . . . 117 Division 4--Provisions relating to offences 178 Penalty at end of provision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118 179 Penalty units . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118 180 Summary offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118 181 Double jeopardy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118 182 Aiding and abetting, attempts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119 183 Offences by corporations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119 184 Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119 SCHEDULE 1 . . . . . . . . . . . . . . . . . . . . . . . 120 PRINCIPAL DEFINITIONS

 


 

10 Consumer Credit (Queensland) SCHEDULE 2 . . . . . . . . . . . . . . . . . . . . . . . 126 MISCELLANEOUS PROVISIONS RELATING TO INTERPRETATION PART 1--PRELIMINARY 1 Displacement of Schedule by contrary intention . . . . . . . . . . . . . . . . . . . . 126 PART 2--GENERAL 2 Code to be construed not to exceed legislative power of Legislature . . . . 126 3 Every section to be a substantive enactment . . . . . . . . . . . . . . . . . . . . . . . 127 4 Material that is, and is not, part of this Code . . . . . . . . . . . . . . . . . . . . . . . 127 5 References to particular Acts and to enactments . . . . . . . . . . . . . . . . . . . . 127 6 References taken to be included in Act or Code citation etc. . . . . . . . . . . 128 7 Interpretation best achieving Code's purpose . . . . . . . . . . . . . . . . . . . . . . . 128 8 Use of extrinsic material in interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . 128 9 Effect of change of drafting practice and use of examples . . . . . . . . . . . . 130 10 Use of examples . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130 11 Compliance with forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131 PART 3--TERMS AND REFERENCES 12 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131 13 Provisions relating to defined terms and gender and number . . . . . . . . . . . 136 14 Meaning of may and must etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136 15 Words and expressions used in statutory instruments . . . . . . . . . . . . . . . . . 136 16 Effect of express references to bodies corporate and individuals . . . . . . . 137 17 Production of records kept in computers etc. . . . . . . . . . . . . . . . . . . . . . . . . 137 18 References to this jurisdiction to be implied . . . . . . . . . . . . . . . . . . . . . . . . 137 19 References to officers and holders of offices . . . . . . . . . . . . . . . . . . . . . . . . 138 20 Reference to certain provisions of Code . . . . . . . . . . . . . . . . . . . . . . . . . . . 138 21 Reference to provisions of this Code or an Act is inclusive . . . . . . . . . . . 139 PART 4--FUNCTIONS AND POWERS 22 Performance of statutory functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139 23 Power to make instrument or decision includes power to amend or repeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140 24 Matters for which statutory instruments may make provision . . . . . . . . . . 140 25 Presumption of validity and power to make . . . . . . . . . . . . . . . . . . . . . . . . 141

 


 

11 Consumer Credit (Queensland) 26 Appointments may be made by name or office . . . . . . . . . . . . . . . . . . . . . . 142 27 Acting appointments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142 28 Powers of appointment imply certain incidental powers . . . . . . . . . . . . . . 144 29 Exercise of powers between enactment and commencement . . . . . . . . . . 144 PART 5--DISTANCE, TIME AND AGE 30 Matters relating to distance, time and age . . . . . . . . . . . . . . . . . . . . . . . . . 147 PART 6--EFFECT OF REPEAL, AMENDMENT OR EXPIRATION 31 Time of Code ceasing to have effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148 32 Repealed Code provisions not revived . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148 33 Saving of operation of repealed Code provisions . . . . . . . . . . . . . . . . . . . . 148 34 Continuance of repealed provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 35 Code and amending Acts to be read as one . . . . . . . . . . . . . . . . . . . . . . . . 149 PART 7--INSTRUMENTS UNDER CODE 36 Schedule applies to statutory instruments . . . . . . . . . . . . . . . . . . . . . . . . . . 149 PART 8--APPLICATION TO COASTAL SEA 37 Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150

 


 

 

1994 A BILL FOR An Act to regulate the provision of consumer credit

 


 

s1 14 s3 Consumer Credit (Queensland) The Parliament of Queensland enacts-- 1 PART 1--PRELIMINARY 2 Division 1--Introductory 3 title 4 Short 1. This Act may be cited as the Consumer Credit (Queensland) Act 5 1994. 6 7 Commencement 2.(1) This Act commences on a day to be fixed by proclamation. 8 (2) Different days may be fixed for the commencement of different 9 provisions of the Consumer Credit Code set out in the Appendix to this 10 Act. 11 Division 2--Interpretation 12 13 Definitions 3. In this Act-- 14 "Consumer Credit (Queensland) Code" means the provisions applying 15 because of section 4 of this Act; 16 "Consumer Credit (Queensland) Regulations" means the provisions 17 applying because of section 5 of this Act; 18 "Ministerial Council" means the Ministerial Council established under the 19 Uniform Consumer Credit Laws Agreement 1993. 20

 


 

s4 15 s6 Consumer Credit (Queensland) ART 2--CONSUMER CREDIT (QUEENSLAND) 1 P CODE AND CONSUMER CREDIT (QUEENSLAND) 2 REGULATIONS 3 in Queensland of the Consumer Credit Code 4 Application 4. The Consumer Credit Code set out in the Appendix to this Act, as in 5 force for the time being-- 6 (a) applies as a law of Queensland; and 7 (b) as so applying may be referred to as the Consumer Credit 8 (Queensland) Code. 9 of regulations under Consumer Credit Code 10 Application 5. The regulations in force for the time being under Part 4 of this Act-- 11 (a) apply as regulations in force for the purposes of the Consumer 12 Credit (Queensland) Code; and 13 (b) as so applying may be referred to as the Consumer Credit 14 (Queensland) Regulations. 15 of expressions in the Consumer Credit (Queensland) 16 Interpretation Code and the Consumer Credit (Queensland) Regulations 17 6. In the Consumer Credit (Queensland) Code and the Consumer Credit 18 (Queensland) Regulations-- 19 "Legislature of this jurisdiction" means the Legislative Assembly of 20 Queensland; 21 "the Code" or "this Code" means the Consumer Credit (Queensland) 22 Code; 23 "the jurisdiction" or "this jurisdiction" means the State of Queensland. 24

 


 

s7 16 s9 Consumer Credit (Queensland) ART 3--CONFERRAL OF JUDICIAL AND 1 P ADMINISTRATIVE FUNCTIONS 2 of judicial functions 3 Conferral 7.(1) The jurisdiction that is expressed to be exercisable by the Court 4 under the Consumer Credit (Queensland) Code and the Consumer Credit 5 (Queensland) Regulations in relation to a contract or other matter is 6 exercisable by-- 7 (a) if proceedings in relation to the contract or other matter have been 8 instituted in, or are before, a court--that court; or 9 (b) in any other case--the court whose monetary jurisdiction is not 10 exceeded by the total amount in dispute. 11 (2) In this section-- 12 "court" includes a Small Claims Tribunal. 13 of administrative functions 14 Conferral 8. The chief executive of the department has the functions of the 15 Government Consumer Agency under the Consumer Credit (Queensland) 16 Code and the Consumer Credit (Queensland) Regulations. 17 PART 4--POWER TO MAKE REGULATIONS UNDER 18 CONSUMER CREDIT CODE 19 20 Interpretation 9. In this Part-- 21 "the Code" means the Consumer Credit Code set out in the Appendix to 22 this Act, as in force for the time being. 23

 


 

s 10 17 s 11 Consumer Credit (Queensland) regulation-making power for Code 1 General 10.(1) The Governor in Council may make regulations under the Code. 2 (2) A regulation under this Part may be made only on the 3 recommendation of the Ministerial Council. 4 (3) A regulation under this Part may create an offence punishable by a 5 penalty not exceeding 50 penalty units (within the meaning of the Code). 6 (4) Schedule 2 to the Code applies in relation to a regulation under this 7 Part. 8 and transitional regulations for Code 9 Savings 11.(1) A regulation under this Part may make provision of a savings or 10 transitional nature consequent on the commencement of the Code or of a 11 provision of the Code. 12 (2) If the regulation so provides, it has effect despite any provision of the 13 Code. 14 (3) Without limiting subsection (1), a regulation may be made under this 15 section for or with respect to the following-- 16 (a) permitting for a limited period or periods provisions requiring the 17 payment or debiting of interest charges in advance under credit 18 contracts or classes of credit contracts; 19 (b) permitting, subject to conditions, pre-determined credit charges 20 for a limited period or periods. 21 (4) A provision of a regulation made under this section may, if the 22 regulation so provides, take effect from the day of assent to this Act or from 23 a later day. 24 (5) To the extent to which a provision takes effect from a day earlier than 25 the day of the regulation's notification in the Gazette, the provision does not 26 operate to the disadvantage of a person (other than the State or a State 27 authority) by-- 28 (a) decreasing the person's rights; or 29 (b) imposing liabilities on the person. 30

 


 

s 12 18 s 14 Consumer Credit (Queensland) ART 5--MISCELLANEOUS 1 P savings and transitional regulations for Queensland 2 Special 12.(1) The Governor in Council may make regulations of a savings or 3 transitional nature consequent on the enactment of this Act. 4 (2) If a regulation so provides, it has effect despite any provision of this 5 Act, including the Consumer Credit (Queensland) Code. 6 (3) A provision of a regulation made under this section may, if the 7 regulation so provides, take effect from the day of assent to this Act or from 8 a later day. 9 (4) To the extent to which a provision takes effect from a day earlier than 10 the day of the regulation's notification in the Gazette, the provision does not 11 operate to the disadvantage of a person (other than the State or a State 12 authority) by-- 13 (a) decreasing the person's rights; or 14 (b) imposing liabilities on the person. 15 binds all persons 16 Act 13. This Act binds all persons, including the State and, so far as the 17 legislative power of the Parliament permits, the Commonwealth and the 18 other States. 19 annual percentage rate 20 Maximum 14.(1) The Governor in Council may make regulations prescribing a 21 maximum annual percentage rate for a credit contract or class of credit 22 contract, within the meaning of the Consumer Credit (Queensland) Code. 23 (2) Part 2, Division 2 of the Code (which limits the debtor's monetary 24 obligations) applies in relation to a prescribed maximum annual percentage 25 rate as if that rate had been prescribed by the Code. 26

 


 

s1 19 s4 Consumer Credit (Queensland) PPENDIX 1 A ONSUMER CREDIT CODE 2 C PART 1--PRELIMINARY 3 title 4 Short 1. This Code may be cited as the Consumer Credit Code. 5 6 Commencement 2. This Code commences as provided under section 2 of the Consumer 7 Credit (Queensland) Act 1994 of Queensland. 8 generally 9 Interpretation 3.(1) Schedule 1 contains the principal definitions of words and 10 expressions used in this Code. 11 (2) Schedule 2 contains other miscellaneous provisions relating to the 12 interpretation of this Code. 13 of "credit" and "amount of credit" 14 Meaning 4.(1) For the purposes of this Code, "credit" is provided if under a 15 contract-- 16 (a) payment of a debt owed by one person (the debtor) to another 17 (the credit provider) is deferred; or 18 (b) one person (the debtor) incurs a deferred debt to another (the 19 credit provider). 20 (2) For the purposes of this Code, the "amount of credit" is the amount 21 of the debt actually deferred. 22

 


 

s5 20 s6 Consumer Credit (Queensland) of "credit contract" 1 Meaning 5. For the purposes of this Code, a "credit contract" is a contract under 2 which credit is or may be provided, being the provision of credit to which 3 this Code applies. 4 of credit to which this Code applies 5 Provision 6.(1) This Code applies to the provision of credit (and to the credit 6 contract and related matters) if when the credit contract is entered into or (in 7 the case of pre-contractual obligations) is proposed to be entered into-- 8 (a) the debtor is a natural person ordinarily resident in this 9 jurisdiction or a strata corporation formed in this jurisdiction; and 10 (b) the credit is provided or intended to be provided wholly or 11 predominantly for personal, domestic or household purposes; and 12 (c) a charge is or may be made for providing the credit; and 13 (d) the credit provider provides the credit in the course of a business 14 of providing credit or as part of or incidentally to any other 15 business of the credit provider. 16 (2) If not all the debtors under a credit contract ordinarily reside, or are 17 strata corporations formed, in this jurisdiction, this Code applies only if 18 credit is first provided under the contract in this jurisdiction. 19 (3) If this Code applies to the provision of credit (and to the credit 20 contract and related matters)-- 21 (a) this Code applies in relation to all transactions or acts under the 22 contract whether or not they take place in this jurisdiction; and 23 (b) this Code continues to apply even though the debtor ceases to be 24 ordinarily resident in this jurisdiction. 25 (4) For the purposes of this section, investment by the debtor is not a 26 personal, domestic or household purpose. 27 (5) For the purposes of this section, the predominant purpose for which 28 credit is provided is-- 29 (a) the purpose for which more than half of the credit is intended to 30 be used; or 31

 


 

s7 21 s7 Consumer Credit (Queensland) (b) if the credit is intended to be used to obtain goods or services for 1 use for different purposes, the purpose for which the goods or 2 services are intended to be most used. 3 of credit to which this Code does not apply 4 Provision 7.(1) Short term credit. This Code does not apply to the provision of 5 credit limited by the contract to a total period not exceeding 62 days. 6 (2) Credit without prior agreement. This Code does not apply to the 7 provision of credit without prior agreement between the credit provider and 8 the debtor. For example, when a cheque account becomes overdrawn but 9 there is no agreed overdraft facility or when a savings account falls into 10 debit. 11 (3) Credit for which only account charge payable. This Code does 12 not apply to the provision of credit under a continuing credit contract if the 13 only charge that is or may be made for providing the credit is a periodic or 14 other fixed charge that does not vary according to the amount of credit 15 provided. However, this Code applies if the charge is of a nature prescribed 16 by the regulations for the purposes of this subsection or if the charge 17 exceeds the maximum charge (if any) so prescribed. 18 (4) Joint credit and debit facilities. This Code does not apply to any 19 part of a credit contract under which both credit and debit facilities are 20 available to the extent that the contract or any amount payable or other 21 matter arising out of it relates only to the debit facility. 22 (5) Bill facilities. This Code does not apply to the provision of credit 23 arising out of a bill facility, that is, a facility under which the credit provider 24 provides credit by accepting, drawing, discounting or endorsing a bill of 25 exchange or promissory note. However, the regulations may provide for the 26 application of the Code to the provision of all or any credit arising out of 27 such a facility. 28 (6) Insurance premiums by instalments. This Code does not apply to 29 the provision of credit by an insurer for the purpose of the payment to the 30 insurer of an insurance premium by instalments, even though the 31 instalments exceed the total of the premium that would be payable if the 32 premium were paid in a lump sum, if on cancellation the insured would 33 have no liability to make further payments under the contract. 34

 


 

s8 22 s8 Consumer Credit (Queensland) (7) Pawnbrokers. This Code does not apply to the provision of credit 1 by a pawnbroker in the ordinary course of a pawnbroker's business (being 2 a business which is being lawfully conducted by the pawnbroker). 3 However, sections 70 to 72 (Court may reopen unjust transactions) apply to 4 any such provision of credit. 5 (8) Trustees of estates. This Code does not apply to the provision of 6 credit by the trustee of the estate of a deceased person by way of an advance 7 to a beneficiary or prospective beneficiary of the estate. However, 8 sections 70 to 72 (Court may reopen unjust transactions) apply to any such 9 provision of credit. 10 (9) Employee loans. This Code (other than this Part, Division 3 of 11 Part 4, Divisions 4 and 5 of Part 5, Part 7, Part 11 and Schedules 1 and 2) 12 does not apply to the provision of credit by an employer, or a related body 13 corporate within the meaning of the Corporations Law of an employer, to 14 an employee or former employee (whether or not it is provided to the 15 employee or former employee with another person) if-- 16 (a) the employer or related body corporate provides credit on 17 condition that one of the persons concerned is an employee or 18 former employee of the credit provider or a related body 19 corporate; or 20 (b) the credit is provided on terms that are more favourable to the 21 debtor than the terms on which the credit provider provides credit 22 to persons who are not employees or former employees of the 23 credit provider or a related body corporate. 24 (10) Regulations may exclude credit. The regulations may exclude, 25 from the application of all or any provisions of this Code, the provision of 26 credit of a class specified in the regulations. In particular (but without 27 limiting the generality of the foregoing), the regulations may so exclude the 28 provision of credit if the amount of the credit exceeds or may exceed a 29 specified amount or if the credit is provided by a credit provider of a 30 specified class. 31 to which this Code applies 32 Mortgages 8.(1) This Code applies to a mortgage if-- 33

 


 

s9 23 s 10 Consumer Credit (Queensland) (a) it secures obligations under a credit contract or a related guarantee; 1 and 2 (b) the mortgagor is a natural person or a strata corporation. 3 (2) If any such mortgage also secures other obligations, this Code applies 4 to the mortgage to the extent only that it secures obligations under the credit 5 contract or related guarantee. 6 (3) The regulations may exclude, from the application of all or any 7 provisions of this Code, a mortgage of a class specified in the regulations. 8 to which this Code applies 9 Guarantees 9.(1) This Code applies to a guarantee if-- 10 (a) it guarantees obligations under a credit contract; and 11 (b) the guarantor is a natural person or a strata corporation. 12 (2) If any such guarantee also guarantees other obligations, this Code 13 applies to the guarantee to the extent only that it guarantees obligations 14 under the credit contract. 15 (3) The regulations may exclude, from the application of all or any 16 provisions of this Code, a guarantee of a class specified in the regulations. 17 leases with option to purchase to be regarded as sale by 18 Goods instalments 19 10.(1) For the purposes of this Code, a contract for the hire of goods 20 under which the hirer has a right or obligation to purchase the goods, is to 21 be regarded as a sale of the goods by instalments if the charge that is or may 22 be made for hiring the goods, together with any other amount payable under 23 the contract (including an amount to purchase the goods or to exercise an 24 option to do so) exceeds the cash price of the goods. 25 26 Note: A contract includes a series of contracts, or contracts and arrangements (see 27 Schedule 1). (2) A debt is to be regarded as having been incurred, and credit provided, 28 in such circumstances. 29 (3) Accordingly, if because of section 6 (1) the contract is a credit 30 contract, this Code (including Part 6) applies as if the contract had always 31

 


 

s 10 24 s 10 Consumer Credit (Queensland) been a sale of goods by instalments, and for that purpose-- 1 (a) the amounts payable under the contract are the instalments; and 2 (b) the credit provider is the person who is to receive those payments; 3 and 4 (c) the debtor is the person who is to make those payments; and 5 (d) the property of the supplier in the goods passes under the contract 6 to the person to whom the goods are hired on delivery of the 7 goods or the making of the contract, whichever occurs last; and 8 (e) the charge for providing the credit is the amount by which the 9 charge that is or may be made for hiring the goods, together with 10 any other amount payable under the contract (including an 11 amount to purchase the goods or to exercise an option to do so), 12 exceeds the cash price of the goods; and 13 (f) a mortgage containing the terms and conditions set out in the 14 regulations is taken to have been entered into in writing between 15 the person to whom the goods are hired under the contract and the 16 supplier as security for payment to the supplier of the amount 17 payable to the supplier by the person to whom the goods are hired 18 under the contract; and 19 (g) any provision in the contract for hiring by virtue of which the 20 supplier is empowered to take possession, or dispose of, the 21 goods to which the contract relates is void. 22 (4) For the purposes of this section, the amount payable under the 23 contract includes any agreed or residual value of the goods at the end of the 24 hire period or on termination of the contract, but does not include the 25 following amounts-- 26 (a) any amount payable in respect of services that are incidental to the 27 hire of goods under the contract; 28 (b) any amount that ceases to be payable on the termination of the 29 contract following the exercise of a right of cancellation by the 30 hirer at the earliest opportunity. 31 32 Note: Part 10 (Consumer leases) applies to the contracts specified in that Part for the 33 hire of goods under which the hirer does not have a right or obligation to purchase the 34 goods.

 


 

s 11 25 s 12 Consumer Credit (Queensland) relating to application of Code 1 Presumptions 11.(1) In any proceedings (whether brought under this Code or not) in 2 which a party claims that a credit contract, mortgage or guarantee is one to 3 which this Code applies, it is presumed to be such unless the contrary is 4 established. 5 (2) Credit is presumed conclusively for the purposes of this Code not to 6 be provided wholly or predominantly for personal, domestic or household 7 purposes if the debtor declares, before entering into the credit contract, that 8 the credit is to be applied wholly or predominantly for business or 9 investment purposes (or for both purposes). 10 (3) However, such a declaration is ineffective for the purposes of this 11 section if the credit provider (or any other person who obtained the 12 declaration from the debtor) knew, or had reason to believe, at the time the 13 declaration was made that the credit was in fact to be applied wholly or 14 predominantly for personal, domestic or household purposes. 15 16 Note: See section 176 for the circumstances in which a credit provider is taken to 17 have knowledge of or reason to believe something for the purposes of this Code. (4) A declaration under this section is to be substantially in the form (if 18 any) required by the regulations and is ineffective for the purposes of this 19 section if it is not. 20 PART 2--CREDIT CONTRACTS 21 1--Negotiating and making credit contracts 22 Division contract to be in form of written contract document 23 Credit 12. A credit contract must be in the form of-- 24 (a) a written contract document signed by the debtor and the credit 25 provider; or 26 (b) a written contract document signed by the credit provider and 27 constituting an offer to the debtor that is accepted, if the terms of 28 the offer provide for it, by the debtor or another authorised person 29

 


 

s 13 26 s 14 Consumer Credit (Queensland) accessing or drawing down credit to incur a liability or by any 1 other act of the debtor that satisfies the conditions of the offer. 2 forms of contract 3 Other 13.(1) The regulations may authorise other ways of making a credit 4 contract that do not involve a written document. 5 (2) In that case, the provisions of this Division apply with such 6 modifications as are prescribed by the regulations. 7 disclosure 8 Precontractual 14.(1) A credit provider must not enter into a credit contract unless the 9 credit provider has given the debtor-- 10 (a) a precontractual statement setting out the matters required by 11 section 15 to be included in the contract document; and 12 (b) an information statement in the form required by the regulations 13 of the debtor's statutory rights and statutory obligations. 14 (2) Those statements must be given-- 15 (a) before the contract is entered into; or 16 (b) before the debtor makes an offer to enter into the contract, 17 whichever first occurs. 18 (3) Before entering into a credit contract, the credit provider may inform 19 the debtor of the comparison rate. If the credit provider does so, the 20 comparison rate must be calculated as prescribed by the regulations and be 21 accompanied by the warnings set out in the regulations. 22 (4) The precontractual statement must contain the financial information 23 specified by the regulations in the form prescribed by the regulations. 24 (5) The precontractual statement may be the proposed contract document 25 or be a separate document or documents. 26 (6) A document forming part of a precontractual statement consisting of 27 more than one document when the pre-contractual statement is first given 28 must indicate that it does not contain all of the required precontractual 29 information. 30

 


 

s 15 27 s 15 Consumer Credit (Queensland) (7) A pre-contractual statement may be varied, within the time referred to 1 in subsection (2), by written notice containing particulars of the variation 2 given to the debtor. 3 that must be in contract document 4 Matters 15. The contract document must contain the following matters-- 5 (A) Credit provider's name. 6 The credit provider's name. 7 (B) Amount of credit. 8 (a) If the amount of the credit to be provided is ascertainable, 9 that amount and the persons, bodies or agents (including the 10 credit provider) to whom the amount is to be paid and the 11 amounts payable to them, to the extent that they are 12 ascertainable. 13 (b) If the amount of the credit to be provided is not 14 ascertainable, the maximum amount of credit agreed to be 15 provided, or the credit limit under the contract, if any. 16 (c) If the credit is provided by the supplier for a sale of land or 17 goods by instalments, a description of the land and its price 18 or of the goods and their cash price. 19 (C) Annual percentage rate or rates. 20 (a) The annual percentage rate or rates under the contract. 21 (b) If there is more then one rate, how each rate applies. 22 (c) If an annual percentage rate under the contract is determined 23 by referring to a reference rate-- 24 (i) the name of the rate or a description of it; and 25 (ii) the margin or margins (if any) above or below the 26 reference rate to be applied to determine the annual 27 percentage rate or rates; and 28 (iii) where and when the reference rate is published or, if it 29 is not published, how the debtor may ascertain the rate; 30 and 31

 


 

s 15 28 s 15 Consumer Credit (Queensland) (iv) the current annual percentage rate or rates. 1 (D) Calculation of interest charges. 2 The method of calculation of the interest charges payable under 3 the contract and the frequency with which interest charges are to 4 be debited under the contract. 5 (E) Total amount of interest charges payable. 6 The total amount of interest charges payable under the contract, if 7 ascertainable (but only if the contract would, on the assumptions 8 in sections 158 and 160, be paid out within 7 years of the date on 9 which credit is first provided under the contract). 10 (F) Repayments. 11 (a) If more than one repayment is to be made-- 12 (i) the amount of the repayments or the method of 13 calculating the amount; and 14 (ii) if ascertainable when the contract is made--the number 15 of the repayments, the period over which they are to be 16 paid and the total amount of the repayments; and 17 (iii) when the first repayment is to be paid, if ascertainable, 18 and the frequency of payment of repayments. 19 (b) If the contract provides for a minimum repayment, the 20 amount of that repayment, if ascertainable, but, if not, the 21 method of calculation of the minimum repayment. 22 (G) Credit fees and charges. 23 (a) A statement of the credit fees and charges that are, or may 24 become, payable under the contract, and when each such fee 25 or charge is payable, if ascertainable. 26 (b) The amount of any such fee or charge if ascertainable, but, if 27 not, the method of calculation of the fee or charge, if 28 ascertainable. 29 (c) The total amount of credit fees and charges payable under 30 the contract to the extent that it is ascertainable. 31

 


 

s 15 29 s 15 Consumer Credit (Queensland) (H) Changes affecting interest and credit fees and charges. 1 If the annual percentage rate or rates or the amount or frequency 2 of payment of a credit fee or charge or instalment payable under 3 the contract may be changed, or a new credit fee or charge may be 4 imposed, a statement or statements to that effect and of the means 5 by which the debtor will be informed of the change or the new fee 6 or charge. 7 (I) Statements of account. 8 The frequency with which statements of account are to be 9 provided to the debtor (except in the case of a credit contract for 10 which the annual percentage rate is fixed for the whole term of the 11 contract and under which there is no provision for varying the 12 rate). 13 (J) Default rate. 14 (a) If the contract is a contract under which a default rate of 15 interest may be charged when payments are in default--a 16 statement to that effect and the default rate and how it is to be 17 applied. 18 (b) If the default rate under the contract is determined by 19 referring to a reference rate-- 20 (i) the name of the rate or a description of it; and 21 (ii) the margin or margins (if any) above or below the 22 reference rate to be applied to determine the default rate; 23 and 24 (iii) when and where the reference rate is published or, if it 25 is not published, how the debtor may ascertain the rate; 26 and 27 (iv) the current default rate. 28 (K) Enforcement expenses. 29 A statement that enforcement expenses may become payable 30 under the credit contract or mortgage (if any) in the event of a 31 breach. 32

 


 

s 15 30 s 15 Consumer Credit (Queensland) (L) Mortgage or guarantee. 1 (a) If any mortgage or guarantee is to be or has been taken by 2 the credit provider, a statement to that effect. 3 (b) In the case of a mortgage, a description of the property 4 subject to, or proposed to be subject to, the mortgage, to the 5 extent to which it is ascertainable. 6 (M) Commission. 7 If a commission is to be paid by or to the credit provider for the 8 introduction of credit business or business financed by the contract-- 9 (a) a statement of that fact; and 10 (b) the person by whom the commission is payable; and 11 (c) the person to whom the commission is payable; and 12 (d) the amount if ascertainable. 13 Commission does not include fees payable by a supplier under a 14 merchant service agreement with a credit provider, an amount payable 15 in connection with a credit-related insurance contract or commission 16 paid to employees of the credit provider. 17 (N) Insurance financed by contract. 18 If the credit provider knows that the debtor is to enter into a 19 credit-related insurance contract and that the insurance is to be financed 20 under the credit contract-- 21 (a) the name of the insurer; and 22 (b) the amount payable to the insurer or, if it is not ascertainable, 23 how it is calculated; and 24 (c) the kind of insurance and any other particulars that may be 25 prescribed by the regulations; and 26 (d) if the credit provider knows of any commission to be paid 27 by the insurer for the introduction of the insurance 28 business--a statement that it is to be paid and, if 29 ascertainable, the amount of the commission expressed 30 either as a monetary amount or as a proportion of the 31 premium. 32

 


 

s 16 31 s 19 Consumer Credit (Queensland) (O) Other information. 1 Any information or warning required by the regulations. 2 3 Note: Sections 158 to 160 set out the tolerances and assumptions applicable to 4 matters required to be disclosed. and expression of contract document 5 Form 16. The contract document must conform to the requirements of the 6 regulations as to its form and the way it is expressed and, subject to any 7 such requirements, may consist of one or more separate documents. 8 of contract document 9 Alteration 17.(1) An alteration of (including an addition to) a contract document by 10 the credit provider after it is signed by the debtor is presumed to be 11 ineffective unless, after the alteration is made, the debtor signs or initials in 12 the margin opposite the alteration. 13 (2) This section does not apply to an alteration having the effect of 14 reducing the debtor's liabilities under the credit contract. 15 of contract for debtor 16 Copy 18.(1) If a contract document is to be signed by the debtor and returned 17 to the credit provider, the credit provider must give the debtor a copy to 18 keep. 19 (2) A credit provider must, not later than 14 days after a credit contract is 20 made, give a copy of the contract in the form in which it was made to the 21 debtor. 22 (3) Subsection (2) does not apply to a credit contract the terms of which 23 are accepted by accessing or drawing down credit to incur a liability or by 24 the debtor satisfying the conditions of an offer. 25 debtor may terminate contract 26 When 19.(1) Although a credit contract has been made, the debtor may 27 nevertheless, by written notice to the credit provider, terminate the contract 28

 


 

s 20 32 s 21 Consumer Credit (Queensland) unless any credit has been obtained or attempted to be obtained under the 1 contract. 2 (2) Nothing in this section prevents the credit provider from retaining or 3 requiring payment of fees or charges incurred before the termination and 4 which would have been payable under the credit contract. 5 for noncompliance 6 Offence 20. A credit provider must not-- 7 (a) enter into a credit contract that contravenes a requirement of this 8 Division; or 9 (b) otherwise contravene a requirement of this Division. 10 Maximum penalty--100 penalty units. 11 2--Debtor's monetary obligations 12 Division monetary obligations 13 Prohibited 21.(1) A credit contract must not impose a monetary liability on the 14 debtor-- 15 (a) in respect of a fee or charge prohibited by this Code; or 16 (b) in respect of an amount of a fee or charge exceeding the amount 17 that may be charged consistently with this Code; or 18 (c) in respect of an interest charge under the contract exceeding the 19 amount that may be charged consistently with this Code. 20 (2) Civil effect. Any provision of a credit contract that imposes a 21 monetary liability prohibited by subsection (1) is void to the extent that it 22 does so. If an amount that is prohibited by subsection (1) is paid, it may be 23 recovered. 24 (3) A credit fee or charge cannot be charged in respect of a credit contract 25 unless the contract authorises it to be charged. 26 (4) Civil effect. If an amount that is prohibited by subsection (3) is paid, 27 it may be recovered. 28

 


 

s 22 33 s 24 Consumer Credit (Queensland) related to prohibited monetary obligations 1 Offences 22.A credit provider must not-- 2 (a) enter into a credit contract on terms imposing a monetary liability 3 prohibited by section 21 (1); or 4 (b) require or accept payment of an amount in respect of a monetary 5 liability that cannot be imposed consistently with this Code. 6 Maximum penalty--100 penalty units. 7 to be in money or equivalent 8 Loan 23.(1) A credit provider must not under a credit contract pay an amount 9 to or in accordance with the instructions of the debtor unless the payment is 10 in cash or money's worth and is made in full without deducting an amount 11 for interest charges under the contract. 12 Maximum penalty--100 penalty units. 13 (2) The regulations may provide that subsection (1) does not apply to the 14 deduction of an amount for the first payment of interest charges under the 15 contract. 16 payments and crediting of payments 17 Early 24.(1) A credit provider must accept any payment under a credit contract 18 that is made before it is payable under the contract unless the contract 19 prohibits its early payment. 20 Maximum penalty--100 penalty units. 21 (2) A credit provider must credit each payment made under a credit 22 contract to the debtor as soon as practicable after receipt of the payment. 23 Maximum penalty--100 penalty units. 24 (3) Despite subsection (2), a credit provider is not required to credit a 25 payment made under a credit contract before it is payable under the contract 26 if-- 27 (a) the contract prohibits its early payment; and 28

 


 

s 25 34 s 26 Consumer Credit (Queensland) (b) the credit provider informs the debtor, before accepting the 1 payment, that the payment will not be credited to the debtor 2 before it becomes payable under the contract. 3 (4) A credit contract may not, under this section, prohibit the paying out 4 of the contract at any time under section 75. 5 3--Interest charges 6 Division relating to interest 7 Definitions 25.(1) In this Code-- 8 "annual percentage rate" under a credit contract means a rate specified in 9 the contract as an annual percentage rate; 10 "daily percentage rate" means the rate determined by dividing the annual 11 percentage rate by 365; 12 "default rate" means a higher annual percentage rate permitted by 13 section 28; 14 "unpaid balance" under a credit contract at any time means the difference 15 between all amounts credited and all amounts debited to the debtor 16 under the contract at that time; 17 "unpaid daily balance" for a day under a credit contract means the unpaid 18 balance under the contract at the end of that day. 19 (2) A credit contract may specify, for the purposes of payments under 20 the contract, when a day ends. 21 on interest charges 22 Limit 26.(1) The maximum amount of an interest charge that may be imposed 23 or provided for under a credit contract is-- 24 (a) where only one annual percentage rate applies to the unpaid 25 balances under the contract--the amount determined by applying 26 the daily percentage rate to the unpaid daily balances; or 27 (b) in any other case--the sum of each of the amounts determined by 28 applying each daily percentage rate to that part of the unpaid daily 29

 


 

s 27 35 s 29 Consumer Credit (Queensland) balances to which it applies under the contract. 1 (2) However, an interest charge under a credit contract for a month, a 2 quarter or half a year may be determined by applying the annual percentage 3 rate or rates, divided by 12 (for a month), by 4 (for a quarter) or by 2 (for 4 half a year), to the whole or that part of the average unpaid daily balances to 5 which it applies. The regulations may provide for the calculation of unpaid 6 daily balances in these circumstances. 7 (3) This section does not prevent the imposition of a default rate of 8 interest permitted by section 28. 9 debit or payment of interest charges prohibited 10 Early 27.(1) A credit provider must not, at any time before the end of a day to 11 which an interest charge applies, require payment of or debit the interest 12 charge. 13 (2) A credit contract may provide for an interest charge to become 14 payable or be debited at any time after the day to which it applies. 15 (3) The regulations may provide that subsection (1) does not apply to the 16 first payment of interest charges under a credit contract. 17 interest 18 Default 28.(1) A credit contract may not provide that an annual percentage rate 19 applicable under a credit contract to any part of the unpaid balance will differ 20 according to whether the debtor is in default under the contract. 21 (2) However, a credit contract may provide for such a differential rate if 22 the higher rate is imposed only in the event of default in payment, in respect 23 of the amount in default and while the default continues. 24 Division 4--Fees and charges 25 credit fees or charges 26 Prohibited 29. The regulations may specify credit fees or charges or classes of credit 27 fees or charges that are prohibited for the purposes of this Code. 28

 


 

s 30 36 s 31 Consumer Credit (Queensland) or charges passed on to other parties 1 Fees 30.(1) A fee or charge payable by a debtor in respect of an amount 2 payable by the credit provider to another person, body or agency is not to 3 exceed the actual amount payable by the credit provider if that amount is 4 ascertainable when the fee or charge is paid by the debtor. The actual 5 amount payable is to be determined after taking into account any discount or 6 other rebate or other applicable allowance received or receivable by the 7 credit provider or a related body corporate within the meaning of the 8 Corporations Law. 9 (2) If the actual amount paid by the credit provider to another person was 10 not ascertainable when the debtor paid an amount to the credit provider for 11 the fee or charge and is less than the amount paid by the debtor, the credit 12 provider must refund or credit the difference to the debtor. 13 (3) Nothing in this section requires a rebate on tax payable by the credit 14 provider or a related body corporate to be taken into account in determining 15 the actual amount payable or paid by a credit provider. 16 (4) Nothing in this section prevents a commission from being payable or 17 paid in accordance with section 135. 18 Division 5--Credit provider's obligation to account 19 of account 20 Statements 31.(1) A credit provider that provides credit must give to the debtor, or 21 arrange for the debtor to be given, periodic statements of account in 22 accordance with this Division. 23 Maximum penalty--100 penalty units. 24 (2) The maximum period for a statement of account is-- 25 (a) in the case of a continuing credit contract under which credit is 26 ordinarily obtained only by the use of a card--40 days; or 27 (b) in the case of any other continuing credit contract--40 days or 28 such longer period, not exceeding 3 months, as is agreed by the 29 credit provider and the debtor; or 30 (c) in any other case--6 months. 31

 


 

s 32 37 s 32 Consumer Credit (Queensland) (3) A statement of account need not be given if-- 1 (a) the credit is provided under a credit contract for which the annual 2 percentage rate is fixed for the whole term of the contract and 3 under which there is no provision for varying the rate; or 4 (b) no amount has been debited or credited to the account during the 5 statement period and the amount outstanding is zero or below a 6 level fixed by the regulations; or 7 (c) the credit provider wrote off the debt of the debtor under the credit 8 contract during the statement period and no further amount has 9 been debited or credited to the account during the statement 10 period; or 11 (d) the debtor was in default under the credit contract (not being a 12 continuing credit contract) during the statement period and the 13 credit provider has commenced enforcement proceedings; or 14 (e) the debtor was in default under a continuing credit contract during 15 the preceding 120 days, or during the statement period and the 2 16 immediately preceding statement periods, whichever is the 17 shorter time, and the credit provider has, before the 18 commencement of the statement period, exercised a right not to 19 provide further credit under the contract and has not provided 20 further credit during the period. 21 to be contained in statements of account 22 Information 32. A statement of account must contain the following matters-- 23 (A) Statement period. 24 The dates on which the statement period begins and ends. 25 (B) Balances. 26 The opening and closing balances (indicating the amount owed by 27 the debtor at the beginning and at the end of the statement period). 28 (C) Credit provided. 29 Particulars of each amount of credit provided by the credit 30 provider to the debtor during the statement period. 31

 


 

s 32 38 s 32 Consumer Credit (Queensland) (D) Identity of supplier. 1 In the case of a continuing credit contract under which credit is 2 ordinarily obtained only by the use of a card--the identity of the 3 supplier if the credit was provided for any cash, goods or services 4 supplied by another person. 5 (E) Interest charges. 6 (a) The amount of the interest charge debited to the debtor's 7 account during the statement period and when the interest 8 was debited. 9 (b) The annual percentage rate or rates and, if required by Part 4, 10 details of any change since the last statement period. 11 (F) Fees and charges. 12 Particulars of any fees and charges debited to the debtor's account 13 during the statement period. 14 (G) Payments to or from account. 15 (a) Particulars of each amount paid by the debtor to the credit 16 provider, or credited to the debtor, during the statement 17 period. 18 (b) Particulars of any amount transferred to or from the account 19 to which the statement relates or to or from any other 20 account maintained under or for the purposes of the credit 21 contract. 22 (H) Amounts payable by debtor. 23 If a minimum amount is payable by the debtor under a continuing 24 credit contract, a statement of the amount and the date by which it 25 is due. 26 (I) Insurance payments. 27 If payment to an insurer is made during the statement period 28 under a credit-related insurance contract that is agreed to be 29 financed under the credit contract-- 30 (a) the name of the insurer, the amount paid to the insurer and 31 the kind of insurance; and 32

 


 

s 33 39 s 34 Consumer Credit (Queensland) (b) if the credit provider is aware of any commission to be paid 1 by the insurer in relation to the insurance contract--the 2 amount of the commission expressed either as a monetary 3 amount or as a proportion of the premium, if ascertainable 4 when the statement is given; 5 (if not previously disclosed in accordance with this Code). 6 (J) Alterations. 7 Any correction of information in a previous statement of account. 8 (K) Other. 9 Any other information required by the regulations. 10 11 Note: Sections 158 to 160 set out the tolerances and assumptions applicable to 12 matters required to be included in statements of accounts. balance must not exceed closing balance of previous 13 Opening statement 14 33.(1) The opening balance shown in each successive statement of 15 account must not exceed the closing balance shown in the last statement of 16 account. 17 (2) However, if no statement of account was given for the previous 18 period, the next statement of account required to be given by this Code may 19 have an opening balance that exceeds the closing balance for the previous 20 statement and must provide the particulars referred to in section 32 (C)-(K) 21 in relation to any immediately preceding periods for which statements were 22 not given. 23 of amount owing and other matters 24 Statement 34.(1) A credit provider must, at the request of a debtor or guarantor and 25 within the time specified by this section, provide a statement of all or any of 26 the following-- 27 (a) the current balance of the debtor's account; 28 (b) any amounts credited or debited during a period specified in the 29 request; 30 (c) any amounts overdue and when each such amount became due; 31

 


 

s 35 40 s 36 Consumer Credit (Queensland) (d) any amount payable and the date it became due. 1 Maximum penalty--100 penalty units. 2 (2) The statement must be given-- 3 (a) within 14 days, if all information requested relates to a period 4 1 year or less before the request is given; or 5 (b) within 30 days, if any information requested relates to a period 6 more than 1 year before the request is given. 7 (3) A statement under this section may be given orally but if the request 8 for the statement is made in writing the statement must be given in writing. 9 (4) A credit provider is not required to provide a further written statement 10 under this section if it has, within the 3 months before the request is given, 11 given such a statement to the person requesting it. 12 (5) Except where otherwise ordered by the Court on the application of 13 the debtor or guarantor, a credit provider is not required to provide 14 information in a statement under this section about amounts credited or 15 debited, or which were overdue or payable, more than 7 years before the 16 request is given unless those amounts are currently overdue and payable. 17 may order statement to be provided 18 Court 35. If a statement is not provided within the time required by this 19 Division, the Court may, on the application of the debtor or guarantor, order 20 the credit provider to provide the statement or itself determine the amounts 21 in relation to which the statement was sought. 22 accounts 23 Disputed 36.(1) If a debtor, by written notice to a credit provider, disputes a 24 particular liability entered against the debtor under a credit contract, the 25 credit provider must give the debtor a written notice explaining in 26 reasonable detail how the liability arises. 27 (2) A written notice need not be given if the credit provider agrees with 28 the debtor as to the disputed amount and gives the debtor a written notice 29 advising of the agreed liability. 30

 


 

s 37 41 s 37 Consumer Credit (Queensland) (3) If in the case of a continuing credit contract the disputed entry appears 1 in a statement of account in which a date for payment of the amount of the 2 account, or part of that amount, is shown, the notice of dispute must be 3 given to the credit provider on or before that date. 4 (4) In any other case, the notice of dispute must be given to the credit 5 provider within 30 days of receiving the statement of account in which the 6 amount, or part of that amount, was first shown. 7 (5) The credit provider must not begin enforcement proceedings on the 8 basis of a default arising from the disputed liability until at least 30 days 9 have elapsed from the time the written explanation or advice as to 10 agreement was given. 11 (6) A debtor or credit provider may apply to the Court to have the Court 12 determine a disputed liability and, if satisfied that a liability is genuinely 13 disputed, the Court may determine the matters in dispute and make such 14 consequential orders as it thinks just. 15 (7) If an application is made to the Court under this section within 30 16 days after the explanation is given, the credit provider must not, without 17 leave of the Court, begin enforcement proceedings on the basis of a default 18 arising from the disputed liability. 19 Maximum penalty--50 penalty units. 20 (8) This section does not affect a dispute not dealt with, or not arising, 21 under this section. 22 6--Certain transactions not to be treated as contracts 23 Division waivers and changes under contracts 24 Deferrals, 37. The provision of credit as a result of a change to an existing credit 25 contract, or a deferral or waiver of an amount under an existing credit 26 contract, is not to be treated as creating a new credit contract for the 27 purposes of this Code, if the change, deferral or waiver is made in 28 accordance with this Code or the contract. 29

 


 

s 38 42 s 39 Consumer Credit (Queensland) PART 3--RELATED MORTGAGES AND 1 GUARANTEES 2 Division 1--Mortgages 3 4 Note: This Division applies to a mortgage (under which the mortgagor is a natural 5 person or a strata corporation) which secures obligations under a credit contract or 6 related guarantee, whether or not it also secures other obligations (see section 8). of mortgage 7 Form 38.(1) A mortgage must be in the form of a written mortgage document 8 that is signed by the mortgagor. 9 (2) It is sufficient compliance with subsection (1) if-- 10 (a) the mortgage is contained in a credit contract signed by the 11 mortgagor; or 12 (b) one of the documents comprising the mortgage document is 13 signed by the mortgagor (and the other documents are referred to 14 in the signed document). 15 (3) However, a goods mortgage need not be in the form of a written 16 mortgage document if the credit provider lawfully had possession of the 17 goods that are subject to the mortgage before the mortgage was entered into, 18 otherwise than because the credit provider supplied the goods (for example, 19 the goods were held by way of security). 20 (4) A mortgage is not enforceable unless it complies with this section. 21 of mortgage for mortgagor 22 Copy 39. If a mortgage is in the form of a written mortgage document and is 23 not part of a credit contract, the credit provider must give the mortgagor a 24 copy to keep, in the form in which it was made, within 14 days after it is 25 made. 26

 


 

s 40 43 s 42 Consumer Credit (Queensland) over all property void 1 Mortgages 40.(1) A mortgage that does not describe or identify the property which 2 is subject to the mortgage is void. 3 (2) Without limiting subsection (1), a provision in a mortgage that 4 charges all the property of the mortgagor is void. 5 on mortgage of future property 6 Restriction 41.(1) A provision in a mortgage to the effect that the mortgagor creates 7 or agrees to create a mortgage over or in respect of property or a class of 8 property that is to be, or may be, acquired by the mortgagor after the 9 mortgage is entered into is void. 10 (2) However, this section does not apply-- 11 (a) to a provision in a mortgage of property that is to be acquired 12 wholly or partly with the credit provided under the credit contract 13 secured by the mortgage; or 14 (b) to a provision in a mortgage relating to property or a class of 15 property (whether or not ascertained) described or identified in the 16 mortgage; or 17 (c) to a provision in a mortgage relating to goods acquired in 18 replacement for, or as additions or accessories to, other goods 19 subject to the mortgage; or 20 (d) to any other provision specified by the regulations. 21 and continuing credit contracts 22 Mortgages 42.(1) A provision in a mortgage to the effect that goods supplied from 23 time to time under a continuing credit contract are subject to the mortgage is 24 void. 25 (2) However, this section does not apply to a provision in a mortgage 26 relating to specified goods securing payment of a debt under a continuing 27 credit contract. 28

 


 

s 43 44 s 45 Consumer Credit (Queensland) accounts mortgages 1 All 43.(1) In addition to securing credit provided by the credit contract or 2 proposed credit contract, or securing obligations under a related guarantee or 3 proposed related guarantee, to which a mortgage initially applies, the 4 mortgage may contain a provision that secures credit provided under 5 another future credit contract or future related guarantee. 6 (2) Any such mortgage is unenforceable in relation to such a future credit 7 contract or future related guarantee unless the credit provider has-- 8 (a) given the mortgagor a copy of the contract document of the credit 9 contract or proposed credit contract or a copy of the guarantee or 10 proposed guarantee to which the mortgage is to relate; and 11 (b) subsequently obtained from the mortgagor a written acceptance of 12 the extension of the mortgage or obtained acceptance in some 13 other form provided for by the regulations. 14 (3) Section 38 (Form of mortgage) does not apply to an extension of a 15 mortgage under this section. 16 party mortgages prohibited 17 Third 44.(1) A credit provider must not enter into a mortgage to secure 18 obligations under a credit contract unless each mortgagor is a debtor under 19 the contract or a guarantor under a related guarantee. 20 (2) A credit provider must not enter into a mortgage to secure obligations 21 under a guarantee unless each mortgagor is a guarantor under the guarantee. 22 (3) A mortgage which does not comply with this section is 23 unenforceable. 24 (4) The Court may, on the application of a party to a mortgage that is 25 unenforceable because of this section, order that the credit provider takes 26 such steps as are necessary to discharge the mortgage. 27 amount which may be secured 28 Maximum 45.(1) A mortgage is void to the extent that it secures an amount, in 29 relation to any credit contract which it secures, that exceeds the sum of the 30 amount of the liabilities of the debtor under the credit contract and the 31

 


 

s 46 45 s 47 Consumer Credit (Queensland) reasonable enforcement expenses of enforcing the mortgage. 1 (2) A mortgage is void to the extent that it secures an amount, in relation 2 to any guarantee which it secures, that exceeds the limit of the guarantor's 3 liability under the guarantee and the reasonable enforcement expenses of 4 enforcing the mortgage. 5 (3) This section does not affect a provision of a mortgage permitted by 6 section 43. 7 securities 8 Prohibited 46.(1) A mortgage cannot be created over employees' remuneration or 9 employment benefits or benefits under a superannuation scheme unless the 10 regulations permit it to do so. 11 (2) An obligation under a credit contract cannot be secured by a cheque, 12 or bill of exchange or promissory note, endorsed or issued by the debtor or 13 guarantor. 14 (3) A mortgage or security is void to the extent that it contravenes this 15 section. 16 or disposal of mortgaged property by mortgagor 17 Assignment 47.(1) A mortgagor must not assign or dispose of property that is subject 18 to a mortgage without the credit provider's consent or the authority of the 19 Court under subsection (3). 20 Maximum penalty--50 penalty units. 21 (2) The credit provider must not unreasonably withhold consent or attach 22 unreasonable conditions to the consent (but a condition requiring security 23 over property of an equivalent kind and value is not to be regarded as 24 unreasonable). 25 (3) The Court may, on application by a mortgagor, authorise the 26 mortgagor to dispose of mortgaged property on conditions determined by 27 the Court if-- 28 (a) the credit provider fails within a reasonable time to reply to a 29 request for consent to do so by the mortgagor; or 30

 


 

s 48 46 s 49 Consumer Credit (Queensland) (b) consent is unreasonably withheld, or unreasonable conditions are 1 attached to the consent. 2 on consent to assignment or disposal of property subject 3 Conditions to mortgage 4 48.(1) As a condition of granting consent to an assignment or disposal of 5 property subject to a mortgage, the credit provider may make any or all of 6 the requirements set out in this section. This section does not limit any other 7 requirements that may be made by the credit provider. 8 (2) The credit provider may require any breaches of the credit contract to 9 which the mortgage relates and of the mortgage to be remedied. 10 (3) The credit provider may require the mortgagor and the assignee or 11 person to whom the property is disposed to execute and deliver to the credit 12 provider an agreement relating to the assignment or disposal in a form 13 approved by the credit provider under which, without prejudicing or 14 affecting the liability of the mortgagor, the assignee or person to whom the 15 property is disposed agrees with the credit provider-- 16 (a) to be personally liable to pay the amounts due or that become due 17 under the mortgage; and 18 (b) to perform and observe all other requirements and conditions of 19 the mortgage. 20 (4) The credit provider may require the mortgagor and the assignee or 21 person to whom the property is disposed to pay the reasonable costs (if 22 any) incurred by the credit provider for-- 23 (a) stamp duty in respect of the assignment or disposal agreement, or 24 any other document the credit provider reasonably requires to be 25 executed in connection with the assignment or disposal; and 26 (b) fees payable to a duly qualified legal practitioner. 27 for noncompliance 28 Offence 49.(1) A credit provider must not-- 29 (a) enter into a mortgage that contravenes a requirement of this 30 Division; or 31

 


 

s 50 47 s 51 Consumer Credit (Queensland) (b) otherwise contravene a requirement of this Division. 1 (2) A credit provider must not enter into a mortgage that is void or 2 unenforceable, or that includes a provision that is void or unenforceable, 3 because of this Division. 4 Maximum penalty--50 penalty units. 5 2--Guarantees 6 Division 7 Note: This Division applies to a guarantee (under which the guarantor is a natural 8 person or a strata corporation) to the extent to which it guarantees obligations under 9 a credit contract, whether or not it also guarantees other obligations (see section 9). of guarantee 10 Form 50.(1) A guarantee must be in writing signed by the guarantor. 11 (2) It is sufficient compliance with subsection (1) if the guarantee is 12 contained in a mortgage signed by the guarantor. 13 (3) The regulations may make provision for or with respect to the content 14 of guarantees and the way they are expressed. 15 (4) A guarantee is not enforceable unless it complies with this section 16 and regulations made under this section. 17 18 Disclosure 51.(1) Before the obligations under a credit contract are secured by a 19 guarantee, the credit provider must give to the prospective guarantor-- 20 (a) a copy of the contract document of the credit contract or proposed 21 credit contract; and 22 (b) a document in the form prescribed by the regulations explaining 23 the rights and obligations of a guarantor. 24 (2) A guarantee is not enforceable unless subsection (1)(a) is complied 25 with. 26

 


 

s 52 48 s 54 Consumer Credit (Queensland) of documents for guarantor 1 Copies 52. A credit provider must, within 14 days after a guarantee is signed and 2 given to the credit provider, give to the guarantor a copy of the guarantee 3 signed by the guarantor and any related credit contract or proposed credit 4 contract (if a copy of the related contract has not previously been given to 5 the guarantor). 6 may withdraw before credit is provided 7 Guarantor 53.(1) Although a guarantee has been made, the guarantor may 8 nevertheless, by written notice to the credit provider-- 9 (a) withdraw from the guarantee at any time before credit is first 10 provided under the credit contact; or 11 (b) withdraw from the guarantee after credit is first provided under 12 the contract if the credit contract made differs in some material 13 respect from the proposed credit contract or pre-contractual 14 statement given to the guarantor before the guarantee is signed. 15 (2) The guarantor may withdraw from a guarantee under this section to 16 the extent only that it guarantees obligations under the credit contract. 17 (3) This section is subject to section 56. 18 of guarantee 19 Extension 54.(1) In addition to guaranteeing obligations under a credit contract or 20 proposed credit contract to which a guarantee initially applies, a guarantee 21 may contain a provision that makes credit provided under another future 22 credit contract subject to the guarantee. 23 (2) Any such guarantee is unenforceable in relation to such a future credit 24 contract unless the credit provider has-- 25 (a) given the guarantor a copy of the contract document of that future 26 credit contract; and 27 (b) subsequently obtained from the guarantor a written acceptance of 28 the extension of the guarantee or obtained acceptance in some 29 other form provided for by the regulations. 30

 


 

s 55 49 s 55 Consumer Credit (Queensland) (3) Section 50 (Form of guarantee) does not apply to an extension of a 1 guarantee under this section. 2 of guarantor's liability 3 Limitation 55.(1) Total amount for which guarantor can be liable. A guarantee is 4 void to the extent that it secures an amount, in relation to a credit contract to 5 which this Code applies, that exceeds the sum of the amount of the 6 liabilities of the debtor under the credit contract and the reasonable expenses 7 of enforcing the guarantee, or any lesser amount agreed between the credit 8 provider and the guarantor. 9 (2) Unenforceable contracts. Nothing in subsection (1) prevents a 10 credit provider from enforcing a guarantee relating to liabilities under a 11 credit contract that is unenforceable solely because of the debtor's death, 12 insolvency or incapacity or any other act or omission by, or circumstance 13 affecting, the debtor. 14 (3) Debtors under 18 years of age. A guarantee which guarantees the 15 liability of a debtor who was under 18 years of age when the liability was 16 incurred cannot be enforced against the guarantor unless it contains a 17 prominent statement to the effect that the guarantor may not be entitled to an 18 indemnity against the debtor. 19 (4) Guarantor may limit liabilities under continuing credit contract. 20 In the case of a continuing credit contract, a guarantor may, by notice to the 21 credit provider, limit the guarantee so that it applies only to liabilities related 22 to credit previously provided to the debtor under the credit contract 23 (including any liabilities not yet debited to the debtor's account) and such 24 further amount (if any) as the guarantor agrees to guarantee. 25 (5) Guarantee must not limit indemnity. A guarantee is void to the 26 extent that it limits the guarantor's right to indemnity from the person 27 whose liability the guarantor has guaranteed or it postpones or otherwise 28 purports to limit the guarantor's right to enforce the indemnity against the 29 person. 30 (6) Effect of section. This section does not affect a provision of a 31 guarantee permitted by section 54. 32

 


 

s 56 50 s 57 Consumer Credit (Queensland) in guarantor's liabilities 1 Increase 56.(1) If the terms of a credit contract are changed to increase or allow 2 for an increase in liabilities, the liabilities of a guarantor under a guarantee 3 that secures those liabilities are not increased unless-- 4 (a) the credit provider gives to the guarantor a written notice setting 5 out particulars of the change in the terms of the credit contract; 6 and 7 (b) the credit provider has subsequently obtained from the guarantor 8 a written acceptance of the extension of the guarantee to those 9 increased liabilities or obtained acceptance in some other form 10 provided for by the regulations. 11 (2) This section does not apply to an increase in liabilities resulting from 12 a change of a kind referred to in section 58 (2)(a) or (b) or to a change of 13 which notice is required to be given under Division 1 of Part 4 (not being a 14 change referred to in section 62 (3) or 63). 15 for noncompliance 16 Offence 57.(1) A credit provider must not-- 17 (a) enter into a guarantee that contravenes a requirement of this 18 Division; or 19 (b) otherwise contravene a requirement of this Division. 20 (2) A credit provider must not enter into a guarantee that is void or 21 unenforceable, or that contains a provision that is void or unenforceable, 22 because of this Division. 23 Maximum penalty--50 penalty units. 24

 


 

s 58 51 s 59 Consumer Credit (Queensland) ART 4--CHANGES TO OBLIGATIONS UNDER 1 P CREDIT CONTRACTS, MORTGAGES AND 2 GUARANTEES 3 1--Unilateral changes by credit provider 4 Division of Division 5 Application 58.(1) This Division applies only to changes made unilaterally by a credit 6 provider under a credit contract, mortgage or guarantee. 7 (2)This Division does not apply to the following changes under a credit 8 contract-- 9 (a) a change to a new annual percentage rate payable under the 10 contract (not being a rate determined by referring to a reference 11 rate), if both the new rate and when it takes effect are ascertainable 12 from the contract; 13 (b) an increase in the amount of repayments, if the increase occurs 14 automatically, as specified by the contract, and both the amount of 15 the increase and when it takes effect are ascertainable from the 16 contract; 17 (c) an increase in the term of a credit contract, if the increase occurs 18 only because of an increase in the annual percentage rate or rates 19 payable under the contract; 20 (d) a change made under Division 3. 21 (3) Nothing in this Division confers on a credit provider or a debtor any 22 power or right to change the credit contract or its terms in addition to those 23 conferred by the contract. 24 rate changes 25 Interest 59.(1) Notification of interest rate changes. A credit provider must, not 26 later than the day on which a change in the annual percentage rate or rates 27 payable under a credit contract takes effect, give to the debtor written notice 28 setting out-- 29

 


 

s 60 52 s 60 Consumer Credit (Queensland) (a) the new rate or rates or, if a rate is determined by referring to a 1 reference rate, the new reference rate; and 2 (b) any information required by the regulations. 3 Maximum penalty--100 penalty units. 4 (2) Notification by publication. Notice under subsection (1) may be 5 given by publishing the notice in a newspaper circulating throughout this 6 jurisdiction. A credit provider that gives notice in accordance with this 7 subsection must give to the debtor particulars of the change before or when 8 the next statement of account is sent to the debtor after the change takes 9 effect. 10 Maximum penalty--100 penalty units. 11 (3) Changes in reference rates. Subsection (1) does not apply to a 12 change in a rate that is determined by referring to a reference rate if the 13 changed reference rate is notified (whether or not by the credit provider) in a 14 newspaper circulating throughout this jurisdiction not later than the date the 15 change takes effect. 16 (4) Notification of other interest changes. A credit provider must, not 17 later than 30 days before a change in the manner in which interest is 18 calculated or applied under a credit contract (including a change in or 19 abolition of any interest free period under the contract) takes effect, give to 20 the debtor written notice setting out-- 21 (a) particulars of the change; and 22 (b) any information required by the regulations. 23 Maximum penalty--100 penalty units. 24 (5) Interest rate reductions. Subsections (1) and (4) do not apply to a 25 change that reduces the obligations of the debtor under the credit contract. 26 (6) Application. This section applies whether or not the change is a 27 change to the terms of the contract. 28 changes 29 Repayment 60.(1) Notification of repayment changes. A credit provider must, not 30 later than 30 days before a change in the amount or frequency or time for 31 payment of, or a change in the method of calculation of, instalments or 32

 


 

s 61 53 s 61 Consumer Credit (Queensland) minimum repayments, under a credit contract takes effect, give to the debtor 1 written notice setting out-- 2 (a) particulars of the change; and 3 (b) any information required by the regulations. 4 Maximum penalty--100 penalty units. 5 (2) Repayment reductions. Subsection (1) does not apply to a change 6 that reduces the obligations of the debtor, or extends the time for payment, 7 under the credit contract. The credit provider must, however, give 8 particulars of any such change before or when the next statement of account 9 is sent to the debtor after the change takes effect. 10 Maximum penalty--100 penalty units. 11 (3) Application. This section applies whether or not the change is a 12 change to the terms of the contract. 13 fees and charges changes 14 Credit 61.(1) Notification of credit fees and charges changes. A credit 15 provider must, not later than 30 days before a change in the amount of a 16 credit fee or charge (including a new credit fee or charge), or a change in the 17 frequency or time for payment of a credit fee or charge, under a credit 18 contract takes effect, give to the debtor written notice setting out-- 19 (a) particulars of the change; and 20 (b) any information required by the regulations. 21 Maximum penalty--100 penalty units. 22 (2) Notification by publication. Notice relating to a change in the 23 amount of a credit fee or charge (including a new credit fee or charge) may 24 be given by publishing the notice in a newspaper circulating throughout this 25 jurisdiction. A credit provider that gives notice in accordance with this 26 subsection must give particulars of the change before or when the next 27 statement of account is sent to the debtor after the change takes effect. 28 Maximum penalty--100 penalty units. 29 (3) Credit fee or charge reductions. Subsection (1) does not apply to a 30 change that reduces the obligations of the debtor, or extends the time for 31 payment, under the credit contract. The credit provider must, however, give 32

 


 

s 62 54 s 63 Consumer Credit (Queensland) particulars of any such change before or when the next statement of account 1 is sent to the debtor after the change takes effect. 2 Maximum penalty--100 penalty units. 3 (4) Application. This section applies whether or not the change is a 4 change to the terms of the contract. 5 to credit limits etc. in continuing credit contracts 6 Changes 62.(1) If a credit provider decides not to provide any further credit under 7 a continuing credit contract, the credit contract continues in force in relation 8 to any credit previously provided under the contract. However, this 9 subsection does not prevent the termination of the contract if otherwise 10 permitted by this Code or the contract. 11 (2) A credit provider must, unless the debtor is in default under the 12 contract, as soon as practicable after deciding not to provide any further 13 credit or to reduce the credit limit, give to the debtor a written notice to that 14 effect if such notice has not previously been given. 15 Maximum penalty--100 penalty units. 16 (3) A credit provider may increase the credit limit under a continuing 17 credit contract only at the request of the debtor or with the written consent of 18 the debtor. 19 unilateral changes by credit provider 20 Other 63.(1) A credit provider must not exercise a power under a credit 21 contract, mortgage or guarantee to unilaterally change its terms without 22 giving to the other party, not less than 30 days before the change takes 23 effect, written notice setting out-- 24 (a) particulars of the change in the terms of the credit contract, 25 mortgage or guarantee; and 26 (b) any information required by the regulations. 27 Maximum penalty--100 penalty units. 28 (2) Subsection (1) does not apply to a change that reduces the obligations 29 of the debtor, or extends the time for payment, under the credit contract. The 30 credit provider must, however, give particulars of any such change before 31

 


 

s 64 55 s 65 Consumer Credit (Queensland) or when the next statement of account is sent to the debtor after the change 1 takes effect. 2 Maximum penalty--100 penalty units. 3 (3) This section does not apply to a change of which notice is required to 4 be given under section 59, 60, 61 or 62 or which is referred to in 5 section 62(3). 6 increases in liabilities 7 Prohibited 64.(1) If the annual percentage rate under a credit contract is currently 8 fixed for a specified term (including the whole term) of the contract, the 9 contract cannot be changed unilaterally by a credit provider so as to increase, 10 or change the method of calculation of a fee or charge so as to increase, a 11 fee or charge-- 12 (a) payable by the debtor on early termination of the credit contract; 13 or 14 (b) payable on prepayment of an amount under the credit contract. 15 (2) The regulations may prescribe circumstances in which such a change 16 is permitted. 17 2--Changes by agreement of parties 18 Division by agreement 19 Changes 65.(1) If the parties under a credit contract, mortgage or guarantee agree 20 to change its terms, the credit provider must, within 30 days after the date of 21 the agreement, give to the other party under the agreement a written notice 22 setting out-- 23 (a) particulars of the change in the terms of the credit contract, 24 mortgage or guarantee; and 25 (b) any information required by the regulations. 26 Maximum penalty--100 penalty units. 27 (2) Subsection (1) does not apply to a change which defers or otherwise 28 reduces the obligations of the debtor for a period not exceeding 90 days or 29

 


 

s 66 56 s 66 Consumer Credit (Queensland) to an agreement to increase the amount of credit under a credit contract. 1 (3) If the parties under a credit contract propose to increase the amount of 2 credit under the contract by agreement, the credit provider must also, before 3 the agreement is made, give to the debtor a written notice containing the 4 information required by the regulations. 5 Maximum penalty--100 penalty units. 6 (4) This section does not apply to a change made under Division 3. 7 Division 3--Changes on grounds of hardship and unjust transactions 8 hanges on grounds of hardship 9 C 66.(1) General principle. A debtor who is unable reasonably, because 10 of illness, unemployment or other reasonable cause, to meet the debtor's 11 obligations under a credit contract and who reasonably expects to be able to 12 discharge the debtor's obligations if the terms of the contract were changed 13 in a manner set out in subsection (2) may apply to the credit provider for 14 such a change. 15 (2) Changes. An application by a debtor must seek to change the terms 16 of the contract in one of the following ways-- 17 (a) extending the period of the contract and reducing the amount of 18 each payment due under the contract accordingly (without a 19 change being made to the annual percentage rate or rates); 20 (b) postponing during a specified period the dates on which 21 payments are due under the contract (without a change being 22 made to the annual percentage rate or rates); 23 (c) extending the period of the contract and postponing during a 24 specified period the dates on which payments are due under the 25 contract (without a change being made to the annual percentage 26 rate or rates). 27 (3) Application. This section and sections 67 to 69 do not apply to a 28 credit contract under which the maximum amount of credit that is or may 29 be provided is more than $125 000 (or such other amount as may be 30 prescribed by the regulations). 31

 


 

s 67 57 s 69 Consumer Credit (Queensland) of change 1 Notice 67. A credit provider that enters into an agreement with the debtor on any 2 such application must, within 30 days after the date of the agreement, give 3 to the debtor, and any guarantor under a guarantee related to the contract, a 4 written notice setting out-- 5 (a) particulars of the change in the terms of the credit contract; and 6 (b) any information required by the regulations. 7 Maximum penalty--50 penalty units. 8 hanges by Court 9 C 68.(1) If the credit provider does not change the credit contract in 10 accordance with the application, the debtor may apply to the Court to change 11 the terms of the credit contract. 12 (2) The Court may, after allowing the applicant, the credit provider and 13 any guarantor a reasonable opportunity to be heard, by order change the 14 credit contract in a manner set out in section 66, and make such other orders 15 as it thinks fit, or refuse to change the credit contract. 16 (3) The Court may, if it thinks it appropriate in the circumstances, stay 17 any enforcement proceedings under the credit contract, and make such other 18 orders as it thinks fit, until the application has been determined. 19 provider may apply for variation of change 20 Credit 69.(1) A credit provider under a credit contract that has been changed by 21 an order under section 68 (2) may apply to the Court for an order varying or 22 revoking the order. 23 (2) A credit provider subject to a stay of enforcement proceedings or 24 other order under section 68 (3) may apply to the Court for an order varying 25 or revoking the stay or order. 26 (3) On an application under this section, the Court may vary or revoke 27 the order or stay to which the application relates as it thinks fit, or may 28 refuse the application. 29

 


 

s 70 58 s 70 Consumer Credit (Queensland) may reopen unjust transactions 1 Court 70.(1) Power to reopen unjust transactions. The Court may, if 2 satisfied on the application of a debtor, mortgagor or guarantor that, in the 3 circumstances relating to the relevant credit contract, mortgage or guarantee 4 at the time it was entered into or changed (whether or not by agreement), the 5 contract, mortgage or guarantee or change was unjust, reopen the 6 transaction that gave rise to the contract, mortgage or guarantee or change. 7 (2) Matters to be considered by Court. In determining whether a term 8 of a particular credit contract, mortgage or guarantee is unjust in the 9 circumstances relating to it at the time it was entered into or changed, the 10 Court is to have regard to the public interest and to all the circumstances of 11 the case and may have regard to the following-- 12 (a) the consequences of compliance, or noncompliance, with all or 13 any of the provisions of the contract, mortgage or guarantee; 14 (b) the relative bargaining power of the parties; 15 (c) whether or not, at the time the contract, mortgage or guarantee 16 was entered into or changed, its provisions were the subject of 17 negotiation; 18 (d) whether or not it was reasonably practicable for the applicant to 19 negotiate for the alteration of, or to reject, any of the provisions of 20 the contract, mortgage or guarantee or the change; 21 (e) whether or not any of the provisions of the contract, mortgage or 22 guarantee impose conditions that are unreasonably difficult to 23 comply with, or not reasonably necessary for the protection of the 24 legitimate interests of a party to the contract, mortgage or 25 guarantee; 26 (f) whether or not the debtor, mortgagor or guarantor, or a person 27 who represented the debtor, mortgagor or guarantor, was 28 reasonably able to protect the interests of the debtor, mortgagor or 29 guarantor because of his or her age or physical or mental 30 condition; 31 (g) the form of the contract, mortgage or guarantee and the 32 intelligibility of the language in which it is expressed; 33 (h) whether or not, and if so when, independent legal or other expert 34 advice was obtained by the debtor, mortgagor or guarantor; 35

 


 

s 70 59 s 70 Consumer Credit (Queensland) (i) the extent to which the provisions of the contract, mortgage or 1 guarantee or change and their legal and practical effect were 2 accurately explained to the debtor, mortgagor or guarantor and 3 whether or not the debtor, mortgagor or guarantor understood 4 those provisions and their effect; 5 (j) whether the credit provider or any other person exerted or used 6 unfair pressure, undue influence or unfair tactics on the debtor, 7 mortgagor or guarantor and, if so, the nature and extent of that 8 unfair pressure, undue influence or unfair tactics; 9 (k) whether the credit provider took measures to ensure that the 10 debtor, mortgagor or guarantor understood the nature and 11 implications of the transaction and, if so, the adequacy of those 12 measures; 13 (l) whether at the time the contract, mortgage or guarantee was 14 entered into or changed, the credit provider knew, or could have 15 ascertained by reasonable inquiry of the debtor at the time, that the 16 debtor could not pay in accordance with its terms or not without 17 substantial hardship; 18 (m) whether the terms of the transaction or the conduct of the credit 19 provider is justified in the light of the risks undertaken by the 20 credit provider; 21 (n) the terms of other comparable transactions involving other credit 22 providers and, if the injustice is alleged to result from excessive 23 interest charges, the annual percentage rate or rates payable in 24 comparable cases; 25 (o) any other relevant factor. 26 (3) Representing debtor, mortgagor or guarantor. For the purposes 27 of subsection (2)(f), a person is taken to have represented a debtor, 28 mortgagor or guarantor if the person represented the debtor, mortgagor or 29 guarantor, or assisted the debtor, mortgagor or guarantor to a significant 30 degree, in the negotiations process prior to, or at, the time the credit contract, 31 mortgage or guarantee was entered into or changed. 32 (4) Unforeseen circumstances. In determining whether a credit contract, 33 mortgage or guarantee is unjust, the Court is not to have regard to any 34 injustice arising from circumstances that were not reasonably foreseeable 35

 


 

s 71 60 s 71 Consumer Credit (Queensland) when the contract, mortgage or guarantee was entered into or changed. 1 (5) Conduct. In determining whether to grant relief in respect of a credit 2 contract, mortgage or guarantee that it finds to be unjust, the Court may 3 have regard to the conduct of the parties to the proceedings in relation to the 4 contract, mortgage or guarantee since it was entered into or changed. 5 (6) Application. This section does not apply to a change in the annual 6 percentage rate or rates payable under a contract, or to an establishment fee 7 or charge or other fee or charge, in respect of which an application may be 8 made under section 72 (Court may review unconscionable interest and other 9 charges). This section does not apply to a change to a contract under this 10 Division. 11 (7) Meaning of unjust. In this section, "unjust" includes 12 unconscionable, harsh or oppressive. 13 on reopening of transactions 14 Orders 71. The Court may, if it reopens a transaction under this Division, do any 15 one or more of the following, despite any settlement of accounts or any 16 agreement purporting to close previous dealings and create a new 17 obligation-- 18 (a) reopen an account already taken between the parties; 19 (b) relieve the debtor and any guarantor from payment of any amount 20 in excess of such amount as the Court, having regard to the risk 21 involved and all other circumstances, considers to be reasonably 22 payable; 23 (c) set aside either wholly or in part or revise or alter an agreement 24 made or mortgage given in connection with the transaction; 25 (d) order that the mortgagee takes such steps as are necessary to 26 discharge the mortgage; 27 (e) give judgment for or make an order in favour of a party of such 28 amount as, having regard to the relief (if any) which the Court 29 thinks fit to grant, is justly due to that party under the contract, 30 mortgage or guarantee; 31

 


 

s 72 61 s 72 Consumer Credit (Queensland) (f) give judgment or make an order against a person for delivery of 1 goods to which the contract, mortgage or guarantee relates and 2 which are in the possession of that person; 3 (g) make ancillary or consequential orders. 4 may review unconscionable interest and other charges 5 Court 72.(1) The Court may, if satisfied on the application of a debtor or 6 guarantor that-- 7 (a) a change in the annual percentage rate or rates under a credit 8 contract to which section 59 (1) or (4) applies; or 9 (b) an establishment fee or charge; or 10 (c) a fee or charge payable on early termination of a credit contract; or 11 (d) a fee or charge for a prepayment of an amount under a credit 12 contract; 13 is unconscionable, annul or reduce the change or fee or charge and may 14 make ancillary or consequential orders. 15 (2) For the purposes of this section, a change to the annual percentage 16 rate or rates is unconscionable if and only if it appears to the Court that-- 17 (a) it changes the annual percentage rate or rates in a manner that is 18 unreasonable, having regard to any advertised rate or other 19 representations made by the credit provider before or at the time 20 the contract was entered into, the period of time since the contract 21 was entered into and any other consideration the Court thinks 22 relevant; or 23 (b) the change is a measure that discriminates unjustifiably against 24 the debtor when the debtor is compared to other debtors of the 25 credit provider under similar contracts. 26 (3) In determining whether an establishment fee or charge is 27 unconscionable, the Court is to have regard to whether the amount of the fee 28 or charge is equal to the credit provider's reasonable costs of determining an 29 application for credit and the initial administrative costs of providing the 30 credit or is equal to the credit provider's average reasonable costs of those 31 things in respect of that class of contract. 32

 


 

s 73 62 s 74 Consumer Credit (Queensland) (4) For the purposes of this section, a fee or charge payable on early 1 termination of the contract or a prepayment of an amount under the credit 2 contract is unconscionable if and only if it appears to the Court that it 3 exceeds a reasonable estimate of the credit provider's loss arising from the 4 early termination or prepayment, including the credit provider's average 5 reasonable administrative costs in respect of such a termination or 6 prepayment. 7 limit 8 Time 73.(1) An application (other than an application under section 72) may 9 not be brought under this Division more than 2 years after the relevant 10 credit contract is rescinded or discharged or the credit provider writes off the 11 relevant debt, whichever occurs first. 12 (2) An application under section 72 may not be brought more than 2 13 years after the relevant change takes effect or fee or charge is charged under 14 the credit contract or the credit provider writes off the relevant debt, 15 whichever occurs first. 16 of parties 17 Joinder 74.(1) If it appears to the Court that a person other than a credit provider 18 or a mortgagee (a "third party") has shared in the profits of, or has a 19 beneficial interest prospectively or otherwise in, a credit contract or 20 mortgage that the Court holds to be unjust, the Court may make an order 21 about the third party that the Court considers appropriate. 22 (2) However, before making an order about the third party, the Court 23 must-- 24 (a) join the third party as a party to the proceedings; and 25 (b) give the third party an opportunity to appear and be heard in the 26 proceedings. 27

 


 

s 75 63 s 76 Consumer Credit (Queensland) PART 5--ENDING AND ENFORCING CREDIT 1 CONTRACTS, MORTGAGES AND GUARANTEES 2 Division 1--Ending of credit contract by debtor 3 or guarantor's right to pay out contract 4 Debtor's 75.(1) A debtor or guarantor is entitled to pay out the credit contract at 5 any time. 6 (2) The amount required to pay out a credit contract (other than a 7 continuing credit contract) is the total of the following amounts-- 8 (a) the amount of credit; 9 (b) the interest charges and all other fees and charges payable by the 10 debtor to the credit provider up to the date of termination; 11 (c) reasonable enforcement expenses; 12 (d) early termination charges, if provided for in the contract; 13 less any payments made under the contract and any rebate of premium 14 under section 138. 15 of pay out figure 16 Statement 76.(1) A credit provider must, at the written request of a debtor or 17 guarantor, provide a written statement of the amount required to pay out a 18 credit contract (other than a continuing credit contract) as at such date as the 19 debtor or guarantor specifies. If so requested, the credit provider must also 20 provide details of the items which make up that amount. 21 (2) The statement must also contain a statement to the effect that the 22 amount required to pay out the credit contract may change according to the 23 date on which it is paid. 24 (3) A credit provider must give a statement, complying with this section, 25 within 7 days after the request is given to the credit provider. 26 Maximum penalty--50 penalty units. 27

 


 

s 77 64 s 78 Consumer Credit (Queensland) may determine pay out figure if credit provider does not 1 Court provide a pay out figure 2 77.(1) If the credit provider does not provide a statement of the amount 3 required to pay out a credit contract (other than a continuing credit contract) 4 in accordance with this Part after a request is duly made by a debtor or 5 guarantor, the Court may, on the application of the debtor or guarantor, 6 determine the amount payable on the date of determination, the amount by 7 which it increases daily and the period for which the determination is 8 applicable. 9 (2) The credit contract is discharged if an amount calculated in 10 accordance with the determination is tendered to the credit provider within 11 the applicable period. 12 of mortgaged goods and goods subject to sale by 13 Surrender instalments 14 78.(1) General principle. If-- 15 (a) a credit contract takes the form of a sale of goods by instalments 16 and title in the goods does not pass until all instalments are paid; 17 or 18 (b) the credit provider has a mortgage over goods of the debtor or 19 guarantor; 20 the debtor or mortgagor may give written notice of an intention to return the 21 goods to the credit provider or, if the goods are in the credit provider's 22 possession, require the credit provider in writing to sell the goods. 23 (2) Delivery of goods. A debtor or mortgagor may return the goods to 24 the credit provider at the credit provider's place of business during ordinary 25 business hours within 7 days of the date of the notice or within such other 26 period or at such other time or place as may be agreed with the credit 27 provider. 28 (3) Notice of value. The credit provider must, within 14 days after a 29 debtor or mortgagor returns the goods or requires the credit provider to sell 30 the goods, give the debtor or mortgagor a written notice containing the 31 estimated value of the goods and any other information required by the 32 regulations. 33

 


 

s 78 65 s 78 Consumer Credit (Queensland) (4) Return or sale of goods. If the debtor or mortgagor, within 21 days 1 after the notice under subsection (3) is given, requests by written notice 2 return of the goods to the debtor or mortgagor or withdraws the 3 requirement to sell the goods (and the debtor is not in default under the 4 terms of the credit contract), the credit provider must return to the debtor or 5 mortgagor any goods returned by the debtor or mortgagor and must not 6 comply with the requirement. 7 (5) Nominated purchaser. The debtor or mortgagor may, within 21 8 days after the notice under subsection (3) is given, nominate in writing a 9 person who is prepared to purchase the goods from the credit provider at 10 the estimated value or at any greater amount for which the credit provider 11 has obtained a written offer to buy the goods. The credit provider must offer 12 to sell the goods to that person for the estimated value or, if there is a 13 written offer to buy the goods for a greater amount, that amount. 14 (6) Sale of goods by credit provider. The credit provider must, if the 15 goods are not required to be returned under subsection (4), as soon as 16 reasonably practicable (or at such other time as the credit provider and the 17 debtor or mortgagor agree) sell the goods in accordance with subsection (5) 18 or, if no buyer is nominated or the nominated buyer under that subsection 19 does not buy the goods, for the best price reasonably obtainable. 20 (7) Amount to be credited to debtor or mortgagor. The credit 21 provider must credit the debtor or mortgagor with a payment equivalent to 22 the proceeds of the sale less any amounts which the credit provider is 23 entitled to deduct from those proceeds. On the sale of the goods, the total 24 amount payable under the contract becomes due. 25 (8) Deductions from proceeds. A credit provider that sells mortgaged 26 goods under this section is entitled to deduct from the proceeds of that sale 27 only the following amounts-- 28 (a) the amount currently secured by the mortgage in relation to the 29 credit contract, not being more than the amount required to 30 discharge the contract; 31 (b) the amount payable to discharge any prior mortgage to which the 32 goods were subject; 33 (c) the amounts payable in successive discharge of any subsequent 34 mortgages to which the goods were subject and of which the 35 credit provider had notice; 36

 


 

s 79 66 s 80 Consumer Credit (Queensland) (d) the credit provider's reasonable enforcement expenses. 1 (9) Notice of amount credited and other matters. The credit provider 2 must give the debtor or mortgagor a written notice stating the gross amount 3 realised on the sale, the net proceeds of the sale, the amount credited to the 4 debtor or mortgagor and the net amount due under the credit contract. 5 (10) Offence--credit provider. A credit provider that contravenes a 6 requirement of this section is guilty of an offence. 7 Maximum penalty (subsection (10))--50 penalty units. 8 to debtor or mortgagor 9 Compensation 79.(1) The Court, on application by the debtor or mortgagor, may order a 10 credit provider to credit the debtor or mortgagor with a payment, fixed by 11 the Court, exceeding the net proceeds of sale if it is not satisfied that the 12 credit provider sold the goods as soon as reasonably practicable (or at such 13 other time as the credit provider and debtor or mortgagor agreed) for the 14 best price reasonably obtainable. 15 (2) On application by the debtor or mortgagor, the mortgagee under any 16 prior mortgage to which the goods are subject or the mortgagee under any 17 subsequent mortgage of which the credit provider has notice, the Court, if 18 not satisfied that the credit provider complied with section 78, may make an 19 order requiring the credit provider to compensate the debtor or mortgagor or 20 the relevant mortgagee for any loss suffered as a result. 21 (3) The onus of proving that section 78 was complied with is on the 22 credit provider. 23 2--Enforcement of credit contracts, mortgages and guarantees 24 Division to be met before credit provider can enforce credit 25 Requirements contract or mortgage against defaulting debtor or mortgagor 26 80.(1) Enforcement of credit contract. A credit provider must not 27 begin enforcement proceedings against a debtor in relation to a credit 28 contract unless the debtor is in default under the credit contract and-- 29

 


 

s 80 67 s 80 Consumer Credit (Queensland) (a) the credit provider has given the debtor, and any guarantor, a 1 default notice, complying with this section, allowing the debtor a 2 period of at least 30 days from the date of the notice to remedy 3 the default; and 4 (b) the default has not been remedied within that period. 5 Maximum penalty--50 penalty units. 6 (2) Enforcement of mortgage. A credit provider must not begin 7 enforcement proceedings against a mortgagor to recover payment of money 8 due or take possession of, sell, appoint a receiver for or foreclose in relation 9 to property subject to a mortgage, unless the mortgagor is in default under 10 the mortgage and-- 11 (a) the credit provider has given the mortgagor a default notice, 12 complying with this section, allowing the mortgagor a period of 13 at least 30 days from the date of the notice to remedy the default; 14 and 15 (b) the default has not been remedied within that period. 16 Maximum penalty--50 penalty units. 17 (3) Default notice requirements. A default notice must specify the 18 default and the action necessary to remedy it and that a subsequent default 19 of the same kind that occurs during the period of 30 days may be the 20 subject of enforcement proceedings without further notice if it is not 21 remedied within the period. 22 (4) When default notice not required. A credit provider is not 23 required to give a default notice or to wait until the period specified in the 24 default notice has elapsed, before beginning enforcement proceedings, if-- 25 (a) the credit provider believes on reasonable grounds that it was 26 induced by fraud on the part of the debtor or mortgagor to enter 27 into the credit contract or mortgage; or 28 (b) the credit provider has made reasonable attempts to locate the 29 debtor or mortgagor but without success; or 30 (c) the Court authorises the credit provider to do so; or 31 (d) the credit provider believes on reasonable grounds that the debtor 32 or mortgagor has removed or disposed of mortgaged goods 33 under a mortgage related to the credit contract or under the 34

 


 

s 81 68 s 82 Consumer Credit (Queensland) mortgage concerned, or intends to remove or dispose of 1 mortgaged goods, without the credit provider's permission or that 2 urgent action is necessary to protect the mortgaged property. 3 (5) Non-remedial default. If the credit provider believes on reasonable 4 grounds that a default is not capable of being remedied-- 5 (a) the default notice need only specify the default; and 6 (b) the credit provider may begin the enforcement proceedings after 7 the period of 30 days from the date of the notice. 8 (6) Other law about mortgages not affected. This section is in 9 addition to any provision of any other law relating to the enforcement of real 10 property mortgages and does not prevent the issue of notices to defaulting 11 mortgagors under other legislation. Nothing in this section prevents the 12 issue of any such notice when a default notice is given under this section. 13 14 Note: By virtue of section 161(2), a notice may contain information required to be 15 given under other legislation or be included in a notice given under other legislation. may be remedied 16 Defaults 81.(1) If a default notice states that the credit provider intends to take 17 action because the debtor or mortgagor is in default under the credit contract 18 or mortgage, the debtor, mortgagor or guarantor may remedy the default 19 within the period specified in the notice, and the contract or mortgage is then 20 reinstated and any acceleration clause cannot operate. 21 (2) A debtor, mortgagor or guarantor does not remedy the default if, at 22 the end of the period, the debtor or mortgagor is in default under the credit 23 contract or mortgage because of the breach specified in the notice or because 24 of a subsequent breach of the same type. 25 to be met before credit provider can enforce guarantee 26 Requirements against guarantor 27 82. A credit provider must not, under a guarantee, enforce a judgment 28 against a guarantor unless-- 29 (a) the credit provider has obtained a judgment against the debtor for 30 payment of the guaranteed liability and the judgment remains 31

 


 

s 83 69 s 83 Consumer Credit (Queensland) unsatisfied for 30 days after the credit provider has made a 1 written demand for payment of the judgment debt; or 2 (b) the Court has relieved the credit provider from the obligation to 3 obtain a judgment against the debtor on the ground that recovery 4 from the debtor is unlikely; or 5 (c) the credit provider has made reasonable attempts to locate the 6 debtor but without success; or 7 (d) the debtor is insolvent. 8 Maximum penalty--50 penalty units. 9 to be met before credit provider can repossess 10 Requirements mortgaged goods 11 83.(1) A credit provider must not, without the consent of the Court, take 12 possession of mortgaged goods if the amount currently owing under the 13 credit contract related to the relevant mortgage is less than 25% of the 14 amount of credit provided under the contract or $10 000, whichever is the 15 lesser. 16 Maximum penalty--100 penalty units. 17 (2) However, the restriction does not apply-- 18 (a) to a continuing credit contract; or 19 (b) if the credit provider believes on reasonable grounds that the 20 debtor has removed or disposed of the mortgaged goods, or 21 intends to remove or dispose of them, without the credit 22 provider's permission or that urgent action is necessary to protect 23 the goods. 24 (3) In any proceedings in which it is established that a credit provider has 25 taken possession of mortgaged goods contrary to subsection (1), the burden 26 of establishing that the possession of the goods was lawfully taken by virtue 27 of subsection (2) lies on the credit provider. 28 (4) Nothing in this section prevents a credit provider from accepting the 29 return of goods under section 78. 30

 


 

s 84 70 s 85 Consumer Credit (Queensland) clauses 1 Acceleration 84.(1) For the purposes of this Part, an "acceleration clause" is a term 2 of a credit contract or mortgage providing that-- 3 (a) on the occurrence or non-occurrence of a particular event, the 4 credit provider becomes entitled to immediate payment of all, or a 5 part, of an amount under the contract that would not otherwise 6 have been immediately payable; or 7 (b) whether or not on the occurrence or non-occurrence of a particular 8 event, the credit provider has a discretion to require repayment of 9 the amount of credit otherwise than by repayments fixed, or 10 determined on a basis stated, in the contract; 11 but does not include any such term in a credit contract or mortgage that is an 12 on demand facility. 13 (2) An "on demand facility" is a credit contract or mortgage under 14 which-- 15 (a) the total amount outstanding under the contract or mortgage is 16 repayable at any time on demand by the credit provider; and 17 (b) there is no agreement, arrangement or understanding between the 18 credit provider and the debtor or mortgagor that repayment will 19 only be demanded on the occurrence or non-occurrence of a 20 particular event. 21 to be met before credit provider can enforce an 22 Requirements acceleration clause 23 85.(1) An acceleration clause is to operate only if the debtor or mortgagor 24 is in default under the credit contract or mortgage and-- 25 (a) the credit provider has given to the debtor and any guarantor, or to 26 the mortgagor, a default notice under section 80; and 27 (b) the default notice contains an additional statement of the manner 28 in which the liabilities of the debtor or mortgagor under the 29 contract or mortgage would be affected by the operation of the 30 acceleration clause and also of the amount required to pay out the 31 contract (as accelerated); and 32

 


 

s 86 71 s 86 Consumer Credit (Queensland) (c) the default has not been remedied within the period specified in 1 the default notice (unless the credit provider believes on 2 reasonable grounds that the default is not capable of being 3 remedied). 4 (2) However, a credit provider is not required to give a default notice 5 under section 80 or to wait until the period specified in the default notice has 6 elapsed before bringing an acceleration clause into operation, if-- 7 (a) the credit provider believes on reasonable grounds that it was 8 induced by fraud on the part of the debtor or mortgagor to enter 9 into the contract or mortgage; or 10 (b) the credit provider has made reasonable attempts to locate the 11 debtor or mortgagor but without success; or 12 (c) the Court authorises the credit provider not to do so; or 13 (d) the credit provider believes on reasonable grounds that the debtor 14 or mortgagor has removed or disposed of mortgaged goods 15 under a mortgage related to the credit contract or the mortgage 16 concerned, or intends to remove or dispose of mortgaged goods, 17 without the credit provider's permission or that urgent action is 18 necessary to protect the goods. 19 (3) This section is in addition to any provision of any other law relating 20 to the enforcement of real property mortgages and does not prevent the 21 issue of notices to defaulting mortgagors under other legislation. 22 Division 3--Postponement of enforcement proceedings 23 of exercise of rights 24 Postponement 86.(1) A debtor, mortgagor or guarantor who has been given a default 25 notice under Division 2 or a demand for payment under section 82 may, at 26 any time before the end of the period specified in the notice or demand, 27 negotiate with the credit provider a postponement of the enforcement 28 proceedings or any action taken under such proceedings or of the operation 29 of any applicable acceleration clause. 30

 


 

s 87 72 s 89 Consumer Credit (Queensland) (2) This Division does not apply to a credit contract under which the 1 maximum amount of credit that is or may be provided is more than 2 $125 000 (or such other amount as may be prescribed by the regulations). 3 of negotiated postponement 4 Effect 87.(1) The default notice or demand for payment is taken, for the 5 purposes of this Code, not to have been given or made if a postponement is 6 negotiated with the credit provider, written notice of the conditions of 7 postponement is given to the debtor, mortgagor or guarantor and the debtor, 8 mortgagor or guarantor complies with the conditions of postponement. 9 (2) It is a condition of any postponement negotiated with a credit 10 provider after the credit provider has taken possession of property subject to 11 a mortgage that the mortgagor pay the reasonable costs of the credit 12 provider in taking possession of the property. 13 by Court 14 Postponement 88.(1) If the debtor, mortgagor or guarantor is unable to negotiate a 15 postponement, the debtor, mortgagor or guarantor may apply to the Court 16 for a postponement. 17 (2) The Court may, after allowing the applicant, the credit provider and 18 any debtor, mortgagor or guarantor concerned a reasonable opportunity to 19 be heard, order or refuse to order the postponement to which the application 20 relates and may make such other orders as it thinks fit. 21 (3) The Court may, if it thinks it appropriate in the circumstances, stay 22 any enforcement proceedings under the credit contract or mortgage until the 23 application has been determined. 24 provider may apply for variation of postponement order 25 Credit 89.(1) A credit provider that is subject to an order under this Division 26 may apply to the Court for variation of the order. 27 (2) On such an application, the Court may vary the order to which the 28 application relates as it thinks fit or may refuse to vary the order or may 29 revoke the order. 30

 


 

s 90 73 s 91 Consumer Credit (Queensland) Division 4--Enforcement procedures for goods mortgaged 1 as to location of mortgaged goods 2 Information 90.(1) A credit provider may, by written notice to a mortgagor under a 3 goods mortgage, require the mortgagor to inform the credit provider within 4 7 days where the mortgaged goods are and, if the mortgaged goods are not 5 in the mortgagor's possession, to give the credit provider all information in 6 the mortgagor's possession that might assist the credit provider to trace the 7 goods. 8 (2) A mortgagor who contravenes a notice under this section is guilty of 9 an offence. 10 Maximum penalty--50 penalty units. 11 to residential property to take possession of goods 12 Entry 91.(1) A credit provider, or an agent of a credit provider, must not enter 13 any part of premises used for residential purposes for the purpose of taking 14 possession of mortgaged goods under a goods mortgage unless-- 15 (a) the Court has authorised the entry; or 16 (b) the occupier of the premises has, after being informed in writing 17 of the provisions of this section, consented in writing to the entry. 18 (2) The regulations may provide for procedures for the obtaining and 19 giving of consent for the purposes of this section and may set out the 20 circumstances in which consent is or is not taken to have been given. 21 (3) If premises are entered in contravention of this section by a credit 22 provider or an agent of a credit provider, the credit provider is guilty of an 23 offence. 24 Maximum penalty (subsection (3))--50 penalty units. 25

 


 

s 92 74 s 94 Consumer Credit (Queensland) may order entry 1 Court 92. The Court may, on the application of a credit provider that is entitled 2 to take possession of mortgaged goods, authorise the credit provider to 3 enter residential premises for the purpose of taking possession of 4 mortgaged goods. 5 for possession 6 Order 93.(1) The Court may, on the application of a credit provider that is 7 entitled to take possession of mortgaged goods, order a person who has 8 possession of the goods to deliver them to the credit provider at a specified 9 time or place or within a specified period. 10 (2) The Court may, on the application of a credit provider or other person 11 required to deliver goods to a credit provider, by order vary the place at 12 which or time or period within which goods must be delivered to the credit 13 provider. 14 (3) A person who contravenes an order under this section is guilty of an 15 offence. 16 Maximum penalty (subsection (3))--30 penalty units. 17 to be followed by credit provider after taking possession 18 Procedures of goods 19 94.(1) Notice to be given. A credit provider that has taken possession of 20 goods under a mortgage must, within 14 days after doing so, give the 21 mortgagor a written notice containing the following matters-- 22 (a) the estimated value of the goods; 23 (b) the enforcement expenses incurred up to the date on which the 24 goods were taken into the credit provider's possession and, if 25 enforcement expenses are accruing while the goods remain in the 26 credit provider's possession, the rate of accrual; 27 (c) a statement of the mortgagor's rights and obligations in the form 28 set out in the regulations. 29

 


 

s 95 75 s 95 Consumer Credit (Queensland) (2) Goods not to be sold immediately. A credit provider must not 1 dispose of goods taken under the mortgage within 21 days after the date of 2 the notice, unless the Court authorises the credit provider to do so. 3 (3) Effect of proceedings. If at the end of that 21-day period a stay of 4 enforcement proceedings is in force under this Code or an application under 5 section 70 has not been determined, the credit provider must not dispose of 6 the goods until those proceedings have been determined and any period 7 allowed for appeal has elapsed. 8 (4) Payment during notice period. The credit provider must return the 9 goods if-- 10 (a) the amount in arrears (less any accelerated amount) and the credit 11 provider's reasonable enforcement expenses are paid within that 12 21 day period and the debtor has not committed a further default 13 of the same kind under the credit contract; or 14 (b) the credit contract is paid out. 15 (5) Offence. A credit provider that contravenes this section is guilty of an 16 offence. 17 Maximum penalty (subsection (5))--50 penalty units. 18 may nominate purchaser of goods taken by credit 19 Mortgagor provider 20 95.(1) The mortgagor may, within 21 days after the date of the notice 21 given under section 94, nominate in writing a person who is prepared to 22 purchase the goods from the credit provider at the estimated value or at any 23 greater amount for which the credit provider has obtained a written offer to 24 buy the goods. 25 (2) The credit provider must offer to sell the goods to that person for the 26 estimated value or, if there is a written offer to buy the goods for a greater 27 amount, that amount. 28 Maximum penalty--50 penalty units. 29

 


 

s 96 76 s 97 Consumer Credit (Queensland) of goods by credit provider 1 Sale 96.(1) The credit provider must, if payment is not made within 21 days 2 after the date of the notice given under section 94 and that section does not 3 prevent the sale, as soon as reasonably practicable (or at such time as the 4 credit provider and mortgagor agree) sell the goods in accordance with 5 section 95 or, if there is no nominated buyer or the nominated buyer under 6 that section does not buy the goods, for the best price reasonably obtainable. 7 (2) The credit provider must credit the mortgagor with a payment 8 equivalent to the proceeds of the sale less any amounts which the credit 9 provider is entitled to deduct from those proceeds. On the sale of the goods, 10 the total amount payable under the contract becomes due. 11 (3) A credit provider that sells mortgaged goods must give the 12 mortgagor a written notice stating the gross amount realised on the sale, the 13 net proceeds of the sale, the net amount due under the credit contract, any 14 further recovery action proposed to be taken by the credit provider against 15 the debtor and any other information required by the regulations. 16 (4) A credit provider that contravenes a requirement of this section is 17 guilty of an offence. 18 Maximum penalty (subsection (4))--50 penalty units. 19 for which account can be debited after mortgagee sale of 20 Matters goods 21 97. A credit provider that sells mortgaged goods under section 96 is 22 entitled to deduct from the proceeds of that sale only the following 23 amounts-- 24 (a) the amount currently secured by the mortgage in relation to the 25 credit contract, not being more than the amount required to 26 discharge the contract; 27 (b) the amount payable to discharge any prior mortgage to which the 28 goods were subject; 29 (c) the amounts payable in successive discharge of any subsequent 30 mortgages to which the goods were subject and of which the 31 credit provider had notice; 32 (d) the credit provider's reasonable enforcement expenses. 33

 


 

s 98 77 s 99 Consumer Credit (Queensland) to mortgagor 1 Compensation 98.(1) The Court, on application by a mortgagor, may order a credit 2 provider to credit the mortgagor with a payment, fixed by the Court, 3 exceeding the net proceeds of sale if it is not satisfied that the credit provider 4 sold the goods as soon as reasonably practicable for the best price 5 reasonably obtainable. 6 (2) On application by a mortgagor, the mortgagee under any prior 7 mortgage to which the goods are subject or the mortgagee under any 8 subsequent mortgage of which the credit provider has notice, the Court, if 9 not satisfied that the credit provider exercised its power of sale in 10 accordance with this Division, may make an order requiring the credit 11 provider to compensate the mortgagor or the relevant mortgagee for any 12 loss suffered as a result. 13 (3) The onus of proving that a power of sale was exercised in accordance 14 with this Division is on the credit provider that exercised it. 15 5--Enforcement expenses 16 Division of enforcement expenses 17 Recovery 99.(1) A credit provider must not recover or seek to recover enforcement 18 expenses from a debtor, mortgagor or guarantor in excess of those 19 reasonably incurred by the credit provider. 20 (2) Civil effect. Any provision of the credit contract, mortgage or 21 guarantee that appears to confer a greater right is void. If enforcement 22 expenses are in fact recovered in excess of this limitation, they may be 23 recovered back. 24

 


 

s 100 78 s 100 Consumer Credit (Queensland) ART 6--CIVIL PENALTIES FOR DEFAULTS OF 1 P CREDIT PROVIDERS 2 Division 1--Civil penalties for breach of key disclosure and other 3 requirements 4 requirements 5 Key 100. For the purposes of this Division, a "key requirement" in 6 connection with a credit contract (other than a continuing credit contract) is 7 any one of the requirements of this Code contained in the following 8 provisions-- 9 (a) section 15 (B); 10 (b) section 15 (C); 11 (c) section 15 (D); 12 (d) section 15 (E); 13 (e) section 15 (G); 14 (f) section 15 (H); 15 (g) section 15 (J); 16 (h) section 15 (N)(a) and (b); 17 (i) section 21 (1)--but only at the time the credit contract is entered 18 into. 19 (2) For the purposes of this Division, a "key requirement" in 20 connection with a continuing credit contract is any one of the requirements 21 of this Code contained in the following provisions-- 22 (a) section 15 (B)(b); 23 (b) section 15 (C); 24 (c) section 15 (D); 25 (d) section 15 (G); 26 (e) section 15 (H); 27 (f) section 21 (1); 28

 


 

s 101 79 s 102 Consumer Credit (Queensland) (g) section 32 (E); 1 (h) section 33. 2 (3) A key requirement relating to a disclosure or a statement of account 3 extends to the requirements set out in Part 2 as to the manner in which the 4 disclosure or statement is to be made, but does not extend to any 5 requirements set out in the regulations. 6 for order relating to key requirements 7 Application 101.(1) A party to a credit contract or a guarantor or the Government 8 Consumer Agency may apply to the Court for an order under this Division. 9 (2) A debtor or guarantor may not make an application for an order 10 under this Division in respect of a contravention under a contract if the 11 contravention under that contract is or has been subject to an application for 12 an order made by the credit provider or a Government Consumer Agency 13 anywhere in Australia under this Code or a corresponding law of another 14 jurisdiction. 15 (3) Subsection (2) does not prevent an application from being made for 16 an order for the payment of compensation under section 107. 17 penalty may be imposed for contravention of key requirement 18 Civil 102.(1) Declaration as to key requirement. The Court must, on an 19 application being made, by order declare whether or not the credit provider 20 has contravened a key requirement in connection with the credit contract or 21 contracts concerned. 22 (2) Penalty orders. The Court may make an order, in accordance with 23 this Division, requiring the credit provider to pay an amount as a civil 24 penalty, if it is of the opinion that the credit provider has contravened a key 25 requirement. 26 (3) Prudential standing. The Court, in considering the imposition of a 27 civil penalty, must have regard primarily to the prudential standing of any 28 credit provider concerned, or of any subsidiary of the credit provider (within 29 the meaning of the Corporations Law), if the credit provider or subsidiary 30

 


 

s 102 80 s 102 Consumer Credit (Queensland) takes deposits or is a borrowing corporation (within the meaning of that 1 Law). However, the Court is to have regard to that prudential standing only 2 if the credit provider requests the Court to do so. 3 (4) Other matters to be considered. The Court, in considering the 4 imposition of a civil penalty, must have regard to the following-- 5 (a) the conduct of the credit provider and debtor before and after the 6 credit contract was entered into; 7 (b) whether the contravention was deliberate or otherwise; 8 (c) the loss or other detriment (if any) suffered by the debtor as a 9 result of the contravention; 10 (d) when the credit provider first became aware, or ought reasonably 11 to have become aware, of the contravention; 12 (e) any systems or procedures of the credit provider to prevent or 13 identify contraventions; 14 (f) whether the contravention could have been prevented by the credit 15 provider; 16 (g) any action taken by the credit provider to remedy the 17 contravention or compensate the debtor or to prevent further 18 contraventions; 19 (h) the time taken to make the application and the nature of the 20 application; 21 (i) any other matter the Court considers relevant. 22 (5) Related contraventions. The Court must, for the purposes of 23 determining an application for an order under this Division or the amount of 24 a civil penalty, treat a contravention of a key requirement that occurs merely 25 because of another contravention of a key requirement as being a 26 contravention of the same kind. If a provision referred to in section 100 27 contains several requirements, the Court must treat contraventions of more 28 than one of those requirements as a single contravention of the one key 29 requirement for the purposes of determining the amount of a civil penalty. 30 (6) Suppression of publication of application. The Court may, if it 31 thinks it appropriate in the circumstances, order that particulars of or any 32 matters relating to an application for an order under this Division not be 33 published. 34

 


 

s 103 81 s 104 Consumer Credit (Queensland) if application made by debtor or guarantor 1 Penalty 103.(1) On application being made by a debtor or a guarantor for an 2 order, the maximum civil penalty that may be imposed by the Court for a 3 contravention of a key requirement is an amount not exceeding the amount 4 of-- 5 (a) except as provided by paragraphs (b) and (c)--all interest charges 6 payable under the contract from the date it was made; or 7 (b) in the case of a contravention of a key requirement relating to a 8 statement of account of a continuing credit contract--all interest 9 charges payable under the contract for the period to which the 10 statement of account relates; or 11 (c) in the case of a contravention of a key requirement relating to 12 prohibited monetary obligations--all interest charges accruing 13 under the contract from the date the contravention occurred. 14 (2) The Court may, however, impose a greater civil penalty if the debtor 15 or guarantor satisfies the Court that the debtor has suffered a loss. The 16 amount of the civil penalty is to be not less than the amount of the loss. 17 (3) For the purposes of subsection (1)(a), the amount of future interest 18 charges payable under a credit contract is to be calculated on the 19 assumptions in sections 158 and 160. 20 of penalty to debtor or guarantor 21 Payment 104.(1) An amount of civil penalty ordered by the Court to be paid on an 22 application for an order made by a debtor or a guarantor may be set off by 23 the debtor or guarantor against any amount that is due or becomes due to 24 the credit provider under the credit contract. If there is no such amount, the 25 amount of the civil penalty is a debt due by the credit provider to the debtor 26 or guarantor. 27 (2) An order made on application by a debtor or a guarantor may include 28 such directions as the Court considers appropriate relating to the payment of 29 the amount owed by the debtor or the credit provider as a result of the order. 30

 


 

s 105 82 s 107 Consumer Credit (Queensland) if application made by a credit provider or Government 1 Penalty Consumer Agency 2 105.(1) On application being made by a credit provider or the 3 Government Consumer Agency for an order, the maximum civil penalty 4 that may be imposed by the Court for a contravention of a key requirement 5 relating to a contract affected by the application is an amount calculated so 6 that the total civil penalty for all contraventions of the requirement in 7 Australia (as disclosed by the credit provider) does not exceed $500 000. 8 (2) For the purpose of determining the penalty, the Court is, in making 9 an order, to determine the appropriate amount of penalty for disclosed 10 contraventions of the key requirement in all jurisdictions and to determine 11 the amount payable in each jurisdiction proportionately according to the 12 number of contracts in that jurisdiction affected by the disclosed 13 contraventions. 14 (3) An order relating to the amount payable in another jurisdiction has no 15 effect in this jurisdiction and has such effect in that other jurisdiction as the 16 law of that other jurisdiction provides. 17 of penalty to fund 18 Payment 106. An amount of civil penalty ordered by the Court to be paid on an 19 application for an order made by a credit provider or the Government 20 Consumer Agency must be paid by the credit provider into a fund 21 established and operated under another law of this jurisdiction for the 22 purposes of this section or, if no such fund is established, to the 23 Government Consumer Agency. 24 for debtor or guarantor 25 Compensation 107.(1) The Court may, on application by a debtor or a guarantor, order 26 that the credit provider pay to the debtor or guarantor an amount by way of 27 compensation for loss arising from the contravention of a key requirement. 28 (2) The Court may only order an amount to be paid by way of 29 compensation if the debtor or guarantor satisfies the Court that the debtor or 30 guarantor has suffered a loss arising from the contravention. The amount of 31 compensation is not to exceed the amount of the loss. 32

 


 

s 108 83 s 110 Consumer Credit (Queensland) (3) The Court may not make an order under this section if the debtor or 1 guarantor has previously obtained or been refused a civil penalty referred to 2 in section 104 relating to the same contravention. 3 (4) An amount payable under this section does not affect the amount of 4 penalty for the purposes of section 105. 5 of civil penalty determined in other jurisdictions 6 Recognition 108.(1) A credit provider or the Government Consumer Agency may 7 register with the Court of this jurisdiction an order made by a Court in 8 another jurisdiction under a provision of a law of that other jurisdiction 9 corresponding to sections 102 and 105. 10 (2) On registration of the order, the order is taken to be an order under 11 sections 102 and 105 for the purposes of this Code in relation to the 12 contraventions occurring in this jurisdiction. 13 jurisdiction more appropriate 14 Other 109.(1) The Court may, on the application of a credit provider or the 15 Government Consumer Agency or a Government Consumer Agency of 16 another jurisdiction, refuse to hear an application on the ground that it is 17 more appropriate that the application be determined in another specified 18 jurisdiction under the corresponding provisions of the corresponding laws 19 of that jurisdiction. 20 (2) Before determining whether to refuse to hear an application, the Court 21 must consider-- 22 (a) whether the number of affected credit contracts in the other 23 jurisdiction exceeds the number in this jurisdiction; and 24 (b) any other matter the Court considers relevant. 25 provisions relating to applications by credit providers or 26 General Government Consumer Agencies 27 110.(1) An application for an order by a credit provider or the 28 Government Consumer Agency-- 29 (a) may apply to any one or more credit contracts; and 30

 


 

s 111 84 s 112 Consumer Credit (Queensland) (b) may apply to all or any class of credit contracts entered into by the 1 credit provider during a specified period (for example, all credit 2 contracts entered into during a specified period which are affected 3 by a specified contravention). 4 (2) The Court may require notice of any such application to be published 5 by notice, in a form approved by the Court, in a newspaper circulating 6 throughout this jurisdiction or Australia, as the Court determines. 7 (3) Notice of an application by a credit provider must be given by the 8 credit provider to the Government Consumer Agency. 9 Consumer Agency may represent interests of debtors 10 Government 111. The Government Consumer Agency may apply to the Court to 11 become a party to an application under this Division and, if joined as a 12 party, has standing to represent the public interest and the interests of 13 debtors. 14 pending Court's decision 15 Directions 112.(1) The Court may, before disposing of an application by a debtor or 16 guarantor for an order under this Division, make such directions as it 17 considers appropriate to protect the interests of the debtor or guarantor 18 concerned. 19 (2) Subject to any such directions of the Court, the application does not 20 prevent-- 21 (a) any proceedings for the enforcement of the debtor's obligations 22 (or the obligations of a guarantor) from being taken; or 23 (b) any rights over property the subject of a mortgage from being 24 exercised. 25 (3) For the purposes of this section, a reference to the disposal of an 26 application includes a reference to its withdrawal by the applicant. 27 (4) A credit provider affected by a direction of the Court may apply to the 28 Court for variation of the direction. The Court may, on such an application 29 being made, vary or revoke the direction or refuse to vary or revoke the 30 direction. 31

 


 

s 113 85 s 116 Consumer Credit (Queensland) 1 Offences 113. Nothing in this Division affects the liability of a person for an 2 offence against this Code or the regulations. 3 Division 2--Other civil penalties 4 effect of other contraventions 5 Civil 114.(1) If a credit provider contravenes a requirement of or made under 6 this Code (other than one for which a civil effect is specifically provided by 7 Division 1 or by any other provision of this Code), the Court may order the 8 credit provider to make restitution or pay compensation to any person 9 affected by the contravention and, in that event, may make any 10 consequential order it considers appropriate in the circumstances. 11 (2) An application for the exercise of the Court's powers under this 12 section may be made by the Government Consumer Agency or by any 13 person affected by the contravention. 14 PART 7--RELATED SALE CONTRACTS 15 1--Interpretation and application 16 Division of sale contract 17 Meaning 115. For the purposes of this Code, a "sale contract" is a contract for 18 any one or more of the following-- 19 (a) a contract for the sale of goods; 20 (b) a contract for the supply of services. 21 contracts to which this Part applies 22 Sale 116. This Part applies to or in respect of a sale contract or proposed sale 23 contract only if the sale of the goods or supply of services concerned is 24

 


 

s 117 86 s 117 Consumer Credit (Queensland) financed, or is proposed to be financed, wholly or partly by the provision of 1 credit to which this Code applies. 2 credit providers and tied credit contracts 3 Linked 117.(1) For the purposes of this Code, a "linked credit provider" of a 4 supplier means a credit provider-- 5 (a) with whom the supplier has a contract, arrangement or 6 understanding relating to the supply to the supplier of goods in 7 which the supplier deals, relating to the business carried on by the 8 supplier of supplying goods or services or relating to the 9 provision to persons to whom goods or services are supplied by 10 the supplier of credit in respect of payment for those goods or 11 services; or 12 (b) to whom the supplier, by arrangement with the credit provider, 13 regularly refers persons for the purpose of obtaining credit; or 14 (c) whose forms of contract or forms of application or offers for 15 credit are, by arrangement with the credit provider, made available 16 to persons by the supplier; or 17 (d) with whom the supplier has a contract, arrangement or 18 understanding under which contracts or applications or offers for 19 credit from the credit provider may be signed by persons at the 20 premises of the supplier. 21 (2) For the purposes of this Code, a "tied continuing credit contract" 22 is a continuing credit contract under which a credit provider provides credit 23 in respect of the payment by a debtor for goods or services supplied by a 24 supplier in relation to whom the credit provider is a linked credit provider. 25 (3) For the purposes of this Code, a "tied loan contract" is a credit 26 contract entered into between a credit provider and a debtor where-- 27 (a) the credit provider knows or ought reasonably to know that the 28 debtor enters into the credit contract wholly or partly for the 29 purposes of payment for the goods or services supplied by a 30 supplier; and 31 (b) at the time the credit contract is entered into the credit provider is a 32 linked credit provider of the supplier. 33

 


 

s 118 87 s 119 Consumer Credit (Queensland) 2--Liability of credit providers for suppliers' 1 Division misrepresentations 2 provider liable with respect to supplier's misrepresentations 3 Credit etc. about tied credit contract 4 118.(1) If there is a tied loan contract or a tied continuing credit contract 5 in respect of a sale contract, any representation, warranty or statement made 6 (whether orally or in writing) by the supplier, or any person acting on behalf 7 of the supplier, to the debtor in relation to the tied loan contract or tied 8 continuing credit contract gives the debtor the same rights against the credit 9 provider as the debtor would have had if it had been made by the credit 10 provider. 11 (2) Without prejudice to any other rights or remedies to which a credit 12 provider may be entitled, a credit provider is entitled to be indemnified by 13 the person who made the representation, warranty or statement, and any 14 person on whose behalf it was made, against any damage suffered by the 15 credit provider through the operation of this section. 16 3--Liability of credit providers in relation to goods 17 Division to damages under sale contract against both supplier and 18 Right linked credit provider (cf. Trade Practices Act 1974 (Cwlth) s 73) 19 119.(1) General right to damages. If-- 20 (a) a supplier supplies goods, or causes goods to be supplied, to a 21 linked credit provider of the supplier and a debtor enters into a 22 contract with the linked credit provider for the provision of credit 23 in respect of the supply by way of sale of the goods to the debtor; 24 or 25 (b) a debtor enters into a contract with a linked credit provider of a 26 supplier for the provision of credit in respect of the supply by the 27 supplier of goods or services, or goods and services, to the 28 debtor; 29 and the debtor suffers loss or damage as a result of misrepresentation, 30 breach of contract, or failure of consideration in relation to the contract, the 31

 


 

s 119 88 s 119 Consumer Credit (Queensland) supplier and the linked credit provider are, subject to this Division, jointly 1 and severally liable to the debtor for the amount of the loss or damage, and 2 the debtor may recover that amount by action in accordance with this 3 section in a court of competent jurisdiction. 4 (2) Credit provider's defences. A linked credit provider of a particular 5 supplier is not liable to a debtor by virtue of subsection (1) in proceedings 6 arising under that subsection if the credit provider establishes-- 7 (a) that the credit provided by the credit provider to the debtor was 8 the result of an approach made to the credit provider by the debtor 9 that was not induced by the supplier; or 10 (b) if the proceedings relate to a contract of sale with respect to which 11 a tied loan contract applies, that-- 12 (i) after due inquiry before becoming a linked credit provider of 13 the supplier, the credit provider was satisfied that the 14 reputation of the supplier in respect of the supplier's 15 financial standing and business conduct was good; and 16 (ii) after becoming a linked credit provider of the supplier, but 17 before the tied loan contract was entered into, the linked 18 credit provider had not had cause to suspect that the debtor 19 might, if the contract was entered into, be entitled to recover 20 an amount of loss or damage suffered as a result of 21 misrepresentation, breach of contract or failure of 22 consideration in relation to the contract as referred to in 23 subsection (1); and 24 (iii) after becoming a linked credit provider of the supplier, but 25 before the tied loan contract was entered into, the credit 26 provider had not had cause to suspect that the supplier might 27 be unable to meet the supplier's liabilities as and when they 28 fell due; or 29 (c) if the proceedings relate to a contract of sale with respect to which 30 a tied continuing credit contract entered into by the linked credit 31 provider applies, that, having regard to-- 32 (i) the nature and volume of business carried on by the linked 33 credit provider; and 34

 


 

s 120 89 s 120 Consumer Credit (Queensland) (ii) such other matters as appear to be relevant in the 1 circumstances of the case; 2 the linked credit provider, before becoming aware of the contract of sale, or 3 of proposals for the making of the contract of sale (whichever the linked 4 credit provider first became aware of), had not had cause to suspect that a 5 person entering into such a contract with the supplier might be entitled to 6 claim damages against, or recover a sum of money from, the supplier for 7 misrepresentation, breach of contract or failure of consideration as referred 8 to in subsection (1). 9 on debtor's right of action against linked credit provider (cf. 10 Limits Trade Practices Act 1974 (Cwlth) s 73) 11 120.(1) Debtor may raise credit provider's liability. Subject to 12 subsection (2), in relation to a contract referred to in section 119 (1)(a) or 13 (b), in which a credit provider claims damages or an amount of money 14 from a debtor, the debtor may set up the liability of the credit provider under 15 section 119 in diminution or extinction of the debtor's liability. 16 (2) Proceedings to be brought against both supplier and linked 17 credit provider. Subject to subsection (3), a debtor may not, in respect of a 18 liability for which, by reason of section 119, a supplier and a linked credit 19 provider are jointly and severally liable-- 20 (a) bring proceedings to recover an amount of loss or damage from 21 the credit provider; or 22 (b) where proceedings are brought against the debtor by the linked 23 credit provider, make a counterclaim or exercise the right 24 conferred by subsection (1) against the credit provider; 25 unless the debtor brings the action against the supplier and the credit 26 provider jointly or, in the case of a counterclaim or right conferred by 27 subsection (1), claims in the proceedings against the supplier in respect of 28 the liability by third-party proceedings or otherwise. 29 (3) When joint proceedings not required. Subsections (2), (5)(a) and 30 (6)(a) do not apply in relation to proceedings where-- 31 (a) the supplier is insolvent, cannot be located after reasonable 32 inquiry, or has died or been dissolved; or 33

 


 

s 120 90 s 120 Consumer Credit (Queensland) (b) in the opinion of the court in which the proceedings are taken, it is 1 not reasonably likely that a judgment obtained against the supplier 2 would be satisfied and the court has, on the application of the 3 debtor, declared that subsections (2), (5)(a) and (6)(a) do not 4 apply in relation to the proceedings. 5 (4) Limit of credit provider's liability. The liability of a linked credit 6 provider to a debtor for damages or a sum of money in respect of a contract 7 referred to in section 119 (1) is not to exceed the sum of-- 8 (a) the amount of credit under the tied loan contract or tied continuing 9 credit contract; and 10 (b) the amount of interest (if any) or damages in the nature of interest 11 allowed or awarded against the linked credit provider by the court; 12 and 13 (c) the amount of costs (if any) awarded by the court against the 14 linked credit provider or supplier or both. 15 (5) Enforcement of judgment against linked credit provider. Where 16 in proceedings arising under section 119, judgment is given against a 17 supplier and a linked credit provider, the judgment-- 18 (a) must not be enforced against the linked credit provider unless a 19 written demand made on the supplier for satisfaction of the 20 judgment has remained unsatisfied for not less than 30 days; and 21 (b) may be enforced against the linked credit provider only to the 22 extent of the amount calculated in accordance with this section, or 23 so much of the judgment debt as has not been satisfied by the 24 supplier, whichever is the lesser. 25 (6) Enforcement of right against linked credit provider. Where in 26 proceedings in respect of the liability arising under section 119, a right 27 conferred by subsection (1) is established against a linked credit provider, 28 the debtor-- 29 (a) may not receive the benefit of the right unless judgment has been 30 given against the supplier and linked credit provider, a written 31 demand has been made on the supplier for satisfaction of the 32 judgment and the demand has remained unsatisfied for not less 33 than 30 days; and 34

 


 

s 121 91 s 123 Consumer Credit (Queensland) (b) may receive the benefit only to the extent of the amount calculated 1 in accordance with this section or so much of the judgment debt 2 as has not been satisfied by the supplier, whichever is the lesser. 3 of supplier to linked credit provider (cf. Trade Practices Act 4 Liability 1974 (Cwlth) s 73) 5 121. Unless the linked credit provider and supplier otherwise agree, the 6 supplier is liable to the linked credit provider for the amount of a loss 7 suffered by the linked credit provider, being an amount not exceeding the 8 maximum amount of the linked credit provider's liability under 9 section 120(4) and, unless the court otherwise determines, the amount of 10 costs (if any) reasonably incurred by the linked credit provider in defending 11 the proceedings by reason of which the liability was incurred. 12 may be awarded (cf. Trade Practices Act 1974 (Cwlth) s 73) 13 Interest 122.(1) Despite any other law, where, in proceedings arising under 14 section 119, judgment is given against a supplier and a linked credit 15 provider or against a linked credit provider for an amount of loss or 16 damage, the court in which the proceedings are taken must, on the 17 application of the debtor, unless good cause is shown to the contrary, award 18 interest to the debtor against the supplier and credit provider or against the 19 credit provider, as the case may be, on the whole or a part of the amount 20 from the time when the debtor became entitled to recover the amount until 21 the date on which the judgment is given, at a rate prescribed by the 22 regulations. 23 (2) In determining whether good cause is shown against awarding 24 interest under this section on the whole or part of an amount of loss or 25 damage, the court is to take into account any payment made into court by 26 the supplier or credit provider. 27 of credit provider (cf. Trade Practices Act 1974 (Cwlth) 28 Subrogation s 73) 29 123. If a judgment given in proceedings arising under section 119 is 30 enforced against a linked credit provider of a particular supplier, the credit 31 provider is subrogated to the extent of the judgment so enforced to any 32

 


 

s 124 92 s 125 Consumer Credit (Queensland) rights that the debtor would have had but for the judgment against the 1 supplier or any other person in respect of the loss or damage suffered by the 2 debtor as a result of the misrepresentation, breach of contract or failure of 3 consideration in relation to the contract from which the liability arose. 4 4--Termination of related transactions 5 Division of sale contract which is conditional on obtaining credit 6 Termination 124.(1) If a purchaser of goods or services makes it known to a supplier 7 that credit is required in order to pay for the goods or services and the 8 purchaser, after making reasonable endeavours to do so, fails to obtain 9 credit on reasonable terms, the purchaser is entitled to terminate the sale 10 contract. 11 (2) A purchaser may terminate a sale contract under this section even 12 though goods or services have already been supplied under the contract but, 13 if practicable, goods supplied under the sale contract must be returned to the 14 supplier. 15 (3) If a sale contract is terminated under this section-- 16 (a) the supplier is entitled to-- 17 (i) reasonable compensation for damage to, or deterioration of, 18 goods supplied under the sale contract (other than fair wear 19 and tear) up to the date of their return to the supplier or, if 20 they are not returned, the cash price of the goods; and 21 (ii) the reasonable value of the services supplied under the sale 22 contract up to the date of termination; and 23 (b) the purchaser is entitled (subject to the supplier's entitlement 24 referred to above) to the return of money paid under the sale 25 contract. 26 of (or recredit under) tied credit contract if sale contract 27 Termination terminated 28 125.(1) If a sale contract is rescinded or discharged (whether under this 29 Code or any other law) and there is a tied loan contract or a tied continuing 30

 


 

s 125 93 s 125 Consumer Credit (Queensland) credit contract made with the purchaser by a linked credit provider of the 1 supplier under the sale contract, the debtor is entitled-- 2 (a) in the case of a tied loan contract--to terminate the credit contract; 3 or 4 (b) in the case of a tied continuing credit contract--to be credited with 5 the amount of credit in relation to the sale contract and the interest 6 charges attributable to that amount. 7 (2) If a tied loan contract is terminated under this section, any related 8 guarantee or mortgage is terminated to the extent to which it secures 9 obligations under the contract or any related guarantee. 10 (3) If a tied loan contract is terminated under this section, the credit 11 provider is entitled to recover from the debtor any part of the amount of 12 credit that has not been paid to the supplier and the debtor is entitled to 13 recover from the credit provider any interest charges or other amounts paid 14 by the debtor under the credit contract. 15 (4) If a mortgage or guarantee is terminated under this section, the credit 16 provider is entitled to recover from the mortgagor or guarantor any part of 17 the amount of credit that has not been paid to the supplier and that is secured 18 by the mortgage or guarantee, and the mortgagor or guarantor is entitled to 19 recover from the credit provider any other amounts paid by the mortgagor 20 or guarantor. 21 (5) If a tied loan contract is terminated under this section, the credit 22 provider is entitled to recover from the supplier (subject to any agreement 23 between them) the amount of any loss suffered by the credit provider as a 24 result of the operation of this section. 25 (6) A supplier who knows that a sale contract referred to in subsection 26 (1) has been rescinded or discharged must forthwith give the credit provider 27 under any tied loan contract or tied continuing credit contract notice of the 28 termination. 29 Maximum penalty--50 penalty units. 30 (7) This section does not apply if the credit is provided as a result of an 31 approach by the debtor that was not induced by the supplier or credit 32 provider. 33

 


 

s 126 94 s 128 Consumer Credit (Queensland) of linked maintenance services contract if credit contract 1 Termination terminated 2 126.(1) If-- 3 (a) there is a tied loan contract or a tied continuing credit contract 4 made with the debtor by a linked credit provider of the supplier 5 under a sale contract to supply maintenance services; and 6 (b) the tied loan contract or tied continuing credit contract is 7 terminated (whether under this Code or any other law) before the 8 end of the term of the sale contract; 9 the debtor is entitled to terminate the sale contract to supply maintenance 10 services and recover from the supplier a proportionate rebate of 11 consideration paid under the sale contract. 12 (2) In any such case, the credit provider must inform the debtor in 13 accordance with the regulations of the debtor's rights under this section. 14 Maximum penalty--50 penalty units. 15 (3) The regulations may prescribe the manner of calculating the 16 proportionate rebate of consideration for the purposes of this section. 17 (4) This section does not apply if the credit is provided as a result of an 18 approach by the debtor that was not induced by the supplier or credit 19 provider. 20 of contract under this Part to be in writing 21 Termination 127. An entitlement to terminate a sale contract or credit contract that is 22 conferred by a provision of this Part may be exercised only by notice in 23 writing to the other party to the contract. 24 of Court with respect to termination of contract under this 25 Powers Part 26 128. The Court may, on the application of any interested party, make 27 orders-- 28 (a) declaring whether a purported termination of a contract under this 29 Part is valid; and 30

 


 

s 129 95 s 132 Consumer Credit (Queensland) (b) for the adjustment of rights following termination of a contract 1 under this Part. 2 5 not to apply to termination of contract under this Part 3 Part 129. Part 5 does not apply to the termination of a contract under this Part. 4 Division 5--Other provisions 5 as to source of credit for goods or services 6 Requirement 130. A supplier must not require a purchaser of goods or services to 7 apply for, or obtain, credit from a particular credit provider. 8 Maximum penalty--100 penalty units. 9 on payment for goods or services by postdated bills of 10 Prohibition exchange or notes which exceed cash price of goods or services 11 131.(1) A supplier must not demand or accept payment from the 12 purchaser for goods or services supplied under a sale contract in the form of 13 a postdated bill of exchange or promissory note given by the purchaser if 14 the face value of the bill or note exceeds the cash price of the goods or 15 services. 16 Maximum penalty--100 penalty units. 17 (2) This section does not apply unless the postponement of the debt to 18 the supplier constitutes a provision of credit to which this Code applies. 19 ART 8--RELATED INSURANCE CONTRACTS 20 P of credit-related insurance contract 21 Meaning 132. For the purposes of this Code, a "credit-related insurance 22 contract" is a contract for insurance of any of the following kinds in 23 connection with a credit contract-- 24

 


 

s 133 96 s 133 Consumer Credit (Queensland) (a) insurance over mortgaged property; 1 (b) consumer credit insurance; 2 (c) insurance of a nature prescribed for the purposes of this section 3 by the regulations. 4 to take out insurance or to insure with particular 5 Requirement insurer or on particular terms 6 133.(1) A credit provider or a supplier must not-- 7 (a) require a debtor or guarantor to take out insurance or to pay the 8 cost of insurance taken out or arranged by the credit provider or 9 supplier; or 10 (b) represent to a debtor or guarantor that the debtor or guarantor is 11 required to pay the cost of any such insurance; 12 unless the insurance is compulsory insurance, mortgage indemnity 13 insurance, insurance over mortgaged property or insurance of a nature and 14 extent approved for the purposes of this section by the regulations. 15 Maximum penalty--100 penalty units. 16 (2) A credit provider or a supplier must not, in connection with a credit 17 contract or a sale contract in relation to which there is a tied loan contract or 18 a tied continuing credit contract-- 19 (a) require a debtor or guarantor to take out insurance with a 20 particular insurer (unless the insurer is the only insurer providing 21 insurance of the relevant kind or the requirement is exempted 22 from the operation of this section by the regulations); or 23 (b) make any unreasonable requirement as to the terms on which the 24 debtor or guarantor is to take out insurance. 25 Maximum penalty--100 penalty units. 26 (3) Civil effect. If the credit provider or supplier contravenes this section, 27 the insured is entitled to recover the whole of the premium paid under the 28 contract from the credit provider or supplier, as the case requires. 29

 


 

s 134 97 s 135 Consumer Credit (Queensland) of insurance premiums over mortgaged property 1 Financing 134.(1) A credit provider must not knowingly provide credit to the 2 debtor to pay the premium or finance the premium on insurance taken out 3 by the debtor over mortgaged property for a period of insurance exceeding 4 1 year, but may provide credit for or finance successive premiums for 5 periods of 1 year or less. This subsection does not apply to a premium paid 6 to obtain an extended period of warranty for goods purchased by a debtor. 7 Maximum penalty--100 penalty units. 8 (2) The credit provider must not knowingly debit the premium to the 9 debtor's account more than 30 days before the beginning of the period of 10 insurance to which it relates. 11 Maximum penalty--100 penalty units. 12 (3) Civil effect. If a credit provider contravenes subsection (1), the 13 insured is entitled to recover the whole of the premium paid under the 14 contract from the credit provider. If a credit provider contravenes 15 subsection (2), the insured is entitled to recover the amount of premium 16 debited in contravention of the subsection. 17 for consumer credit insurance 18 Commission 135.(1) This section applies to commission paid by an insurer in 19 connection with consumer credit insurance taken out by the debtor, or for 20 which an amount is paid by the debtor. 21 (2) The total of any such commission accepted by all or any of the 22 following-- 23 (a) the credit provider; 24 (b) the supplier under a sale contract in relation to which there is a 25 tied loan contract or a tied continuing credit contract; 26 (c) the agent of the credit provider or supplier; 27 must not exceed, in amount or value, 20% of the premium (excluding 28 government charges). 29 (3) A credit provider or any such supplier or agent must not accept, and 30 an insurer must not pay, a commission exceeding, in amount or value, the 31 maximum allowed under this section. 32

 


 

s 136 98 s 137 Consumer Credit (Queensland) Maximum penalty--100 penalty units. 1 (4) Civil effect. If a credit provider or supplier contravenes this section, 2 the insured is entitled to recover the whole amount or value of the 3 commission from the credit provider or the supplier, as the case requires. 4 of copy of credit-related insurance contract by insurer 5 Supply 136.(1) If the premium under a credit-related insurance contract is 6 financed under the credit contract, the insurer must ensure that a copy of the 7 policy of insurance is given to the debtor within 14 days after acceptance of 8 the insurance proposal by the insurer. 9 (2) In the case of any such contract of insurance entered into by the credit 10 provider in which the debtor has a beneficial interest, the credit provider 11 must ensure that a written notice containing particulars of the insurance 12 prescribed by the regulations is given to the debtor within 14 days after the 13 beneficial interest is acquired by the debtor. 14 (3) This section does not apply to compulsory insurance. 15 Maximum penalty--100 penalty units. 16 of debtor's proposal for insurance 17 Rejection 137.(1) If a credit provider proposes to finance the amount payable by 18 the debtor under or in connection with a credit-related insurance contract and 19 the proposal for insurance is rejected by an insurer, the insurer must inform 20 the debtor and the credit provider of its rejection. 21 (2) Unless the insurance is to be arranged with another insurer, the credit 22 provider must ensure that any amount paid by the debtor is refunded or 23 credited in full. 24 Maximum penalty--100 penalty units. 25 (3) The credit provider may, in turn, recover the amount paid to the 26 debtor from the insurer, if an amount has been paid to the insurer by the 27 debtor under or in connection with the proposed insurance contract. 28

 


 

s 138 99 s 139 Consumer Credit (Queensland) of consumer credit insurance contract if credit contract 1 Termination terminated 2 138.(1) On termination of a credit contract, any relevant credit-related 3 insurance contract financed under the credit contract for consumer credit 4 insurance in force is also terminated. 5 (2) If a credit contract is terminated, the credit provider is required to pay 6 the debtor or credit the debtor with a proportionate rebate of premium paid 7 under any relevant credit-related insurance contract for consumer credit 8 insurance in force immediately before the credit contract is terminated. 9 (3) The credit provider may, in turn, recover the amount paid to the 10 debtor from the insurer. 11 (4) The regulations may prescribe the manner of calculating the 12 proportionate rebate of premium for the purposes of this section. 13 (5) This section has effect despite any provision of the credit-related 14 insurance contract. 15 of insurance contract over mortgaged property if credit 16 Termination contract terminated 17 139.(1) If a credit contract is terminated before the end of the term of a 18 credit-related insurance contract over mortgaged property financed under the 19 credit contract or before any such insurance contract is otherwise 20 terminated, the debtor is entitled to terminate the insurance contract and 21 recover from the insurer a proportionate rebate of premium paid under the 22 insurance contract. 23 (2) On the termination of the credit contract, the credit provider must 24 inform the debtor in accordance with the regulations of the debtor's rights 25 under this section. 26 Maximum penalty--50 penalty units. 27 (3) The regulations may prescribe the manner of calculating the 28 proportionate rebate of premium for the purposes of this section. 29 (4) An entitlement under this section to terminate an insurance contract 30 may be exercised only by notice in writing to the insurer. 31

 


 

s 140 100 s 141 Consumer Credit (Queensland) (5) This section has effect despite any provision of the credit-related 1 insurance contract. 2 ART 9--ADVERTISING AND RELATED CONDUCT 3 P 4 Advertising 140.(1) General principle. A person must not publish, or cause to be 5 published, an advertisement that states or implies that credit is available 6 unless the advertisement complies with this section. 7 Maximum penalty--100 penalty units. 8 (2) Regulations. The advertisement must not contain a statement of a 9 kind prohibited by the regulations. It must contain any statement required 10 by the regulations. 11 (3) Cost of credit. If the advertisement contains any reference to the cost 12 of any credit, it must contain the annual percentage rate or rates and, if any 13 fees or charges are payable, a statement to that effect. The advertisement 14 may contain the comparison rate calculated as prescribed by the regulations 15 and, if it does so, must be accompanied by the warnings set out in the 16 regulations. 17 (4) Interest charges. The advertisement must not contain any statement 18 of interest charges or of the cost of credit other than a statement referred to 19 in subsection (3). 20 (5) Civil effect. A person who suffers loss as a result of a contravention 21 by another person of this section may recover the amount of the loss against 22 that other person or any other person involved in the contravention. 23 liable for advertisements 24 Persons 141.(1) A person is, in the absence of proof to the contrary, taken to have 25 caused an advertisement to be published if-- 26

 


 

s 142 101 s 144 Consumer Credit (Queensland) (a) the person provides credit, owns or has an interest in any goods, 1 or supplies or has an interest in the supply of any goods or 2 services, which the advertisement promotes; and 3 (b) the advertisement specifies the name, business name, address, 4 telephone number, facsimile number or post office box number 5 of the person or the person's agent. 6 (2) It is a defence to a charge under section 140 of causing an 7 advertisement that does not comply with that section to be published if the 8 person charged proves that he or she could not, by the exercise of 9 reasonable care, have prevented the noncompliance to which the offence 10 relates. 11 12 Defence 142. A printer, publisher or proprietor of a newspaper, a licensee of a 13 commercial broadcasting or television station, an exhibitor of a film, or a 14 person acting with the authority of any of them, is not guilty of an offence 15 under section 140 unless he or she suspected, or had reason to suspect, that 16 publishing the advertisement would constitute an offence. 17 rates which may be disclosed 18 Interest 143. A person must not disclose an interest rate-- 19 (a) in an advertisement that states or implies that credit is available; or 20 (b) to a debtor before the debtor enters into a credit contract; 21 unless the interest rate is the annual percentage rate or rates or is the 22 comparison rate calculated as prescribed by the regulations and 23 accompanied by the warnings set out in the regulations. 24 Maximum penalty--100 penalty units. 25 or misleading representations 26 False 144.(1) A person must not make a false or misleading representation in 27 relation to a matter that is material to entry into a credit contract or a related 28 transaction or in attempting to induce another person to enter into a credit 29 contract or related transaction. 30

 


 

s 145 102 s 146 Consumer Credit (Queensland) Maximum penalty--50 penalty units. 1 (2) It is a defence to prosecution for an offence against this section if a 2 person charged proves that he or she reasonably believed that the 3 representation was not false or misleading. 4 (3) Civil effect. A person who suffers loss as a result of a contravention 5 by another person of this section may recover the amount of the loss from 6 that other person or any other person involved in the contravention. 7 arassment 8 H 145. A credit provider or supplier must not harass a person in attempting 9 to get that person to apply for credit or to enter into a credit contract or a 10 related transaction. 11 Maximum penalty--100 penalty units. 12 of credit at home 13 Canvassing 146.(1) A credit provider must not visit (personally or in the person of an 14 employee or agent) a place of residence for the purpose of inducing a 15 person who resides there to apply for or obtain credit, except by prior 16 arrangement by the credit provider with the person. 17 Maximum penalty--100 penalty units. 18 (2) A person who visits another's residence for the purpose of offering 19 goods or services for sale and who offers to provide or arrange for the 20 provision of credit to finance the sale will not be taken to have called for the 21 purpose of inducing a person to apply for or obtain credit. 22

 


 

s 147 103 s 148 Consumer Credit (Queensland) PART 10--CONSUMER LEASES 1 1--Interpretation and application 2 Division of consumer lease 3 Meaning 147. For the purposes of this Code, a "consumer lease" is a contract for 4 the hire of goods by a natural person or strata corporation under which that 5 person or corporation does not have a right or obligation to purchase the 6 goods. 7 leases to which this Part applies 8 Consumer 148.(1) This Part applies to a consumer lease if, when the lease is entered 9 into-- 10 (a) the lessee is ordinarily resident in this jurisdiction or a strata 11 corporation formed in this jurisdiction; and 12 (b) the goods are hired wholly or predominantly for personal, 13 domestic or household purposes; and 14 (c) a charge is or may be made for hiring the goods and the charge 15 together with any other amount payable under the consumer lease 16 exceeds the cash price of the goods; and 17 (d) the lessor hires the goods in the course of a business of hiring 18 goods or as part of or incidentally to any other business of the 19 lessor. 20 (2) If not all the lessees under a consumer lease ordinarily reside, or are 21 strata corporations formed, in this jurisdiction, this Code applies only if 22 goods are first hired under the lease in this jurisdiction. 23 (3) If this Part applies to a consumer lease-- 24 (a) this Part applies to all transactions or acts under the lease whether 25 or not they take place in this jurisdiction; and 26 (b) this Part continues to apply even though the lessee ceases to be 27 ordinarily resident in this jurisdiction. 28

 


 

s 149 104 s 150 Consumer Credit (Queensland) (4) For the purposes of this section, the amount payable under a 1 consumer lease includes any agreed or residual value of the goods at the end 2 of the lease or on termination of the lease by the lessor or lessee, but does 3 not include-- 4 (a) any amount payable for services that are incidental to the hire of 5 the goods under the lease; or 6 (b) any amount that ceases to be payable on the termination of the 7 contract following the exercise of a right of cancellation by the 8 lessee at the earliest opportunity. 9 (5) For the purposes of this section, the predominant purpose for which 10 goods are hired is-- 11 (a) the purpose for which more than one half of the goods are 12 intended to be used; or 13 (b) if the same goods are intended to be used for different purposes, 14 the purpose for which the goods are intended to be most used. 15 leases to which this Part does not apply 16 Consumer 149.(1) Short term or indefinite leases. This Part does not apply to a 17 consumer lease for a fixed period of 4 months or less or for an indefinite 18 period. 19 (2) Employment-related leases. This Part does not apply to a consumer 20 lease under which goods are hired by an employee in connection with the 21 employee's remuneration or other employment benefits. 22 (3) Regulations. The regulations may exclude from the application of all 23 or any provisions of this Part consumer leases of a class specified in the 24 regulations. 25 relating to application of this Part 26 Presumptions 150.(1) In any proceedings (whether brought under this Code or not) in 27 which a party claims that a lease is a consumer lease to which this Part 28 applies, it will be presumed to be such unless the contrary is established. 29

 


 

s 151 105 s 152 Consumer Credit (Queensland) (2) Goods hired under a lease are presumed conclusively for the 1 purposes of this Part not to be hired wholly or predominantly for personal, 2 domestic or household purposes if the lessee declares, before hiring the 3 goods, that the goods are hired wholly or predominantly for business 4 purposes. 5 (3) However, such a declaration is ineffective for the purposes of this 6 section if the lessor (or any other person who obtained the declaration from 7 the lessee) knew, or had reason to believe, at the time the declaration was 8 made that the goods were in fact hired wholly or predominantly for 9 personal, domestic or household purposes. 10 11 Note: See section 176 for the circumstances in which a credit provider is taken to 12 have knowledge of or reason to believe something for the purposes of this Code. (4) A declaration under this section is to be substantially in the form (if 13 any) required by the regulations and is ineffective for the purposes of this 14 section if it is not. 15 2--Form of and information to be included in consumer leases 16 Division of consumer lease 17 Form 151.(1) A consumer lease must be in the form of a written lease 18 document signed by the lessee and containing the information required by 19 this Division. 20 (2) The regulations may make provision for or with respect to the form 21 of consumer leases and the way they are expressed. 22 (3) A lessor must not enter into a consumer lease that contravenes a 23 requirement of this section or regulations made under this section. 24 Maximum penalty (subsection (3))--100 penalty units. 25 in consumer leases 26 Disclosures 152.(1) A consumer lease must contain the following matters, if 27 ascertainable-- 28 (a) a description or identification of the goods hired under the lease; 29

 


 

s 153 106 s 153 Consumer Credit (Queensland) (b) the amount or value of any consideration to be paid or provided 1 by the lessee before the delivery of those goods; 2 (c) the amount of any stamp duty or other government charge 3 payable by the lessee in respect of the lease; 4 (d) the amount of any other charges not included in the rental payable 5 under the lease, and a description of those charges; 6 (e) the amount of each rental payment to be made by the lessee under 7 the lease, the date on which the first rental payment is due and 8 either the dates on which subsequent rental payments are due or 9 the interval between rental payments; 10 (f) the number of rental payments to be made by the lessee, and the 11 total amount of rental payable under the lease; 12 (g) a statement of the conditions on which the lessee may terminate 13 the lease; 14 (h) a statement of the liabilities (if any) of the lessee on termination of 15 the lease. 16 (2) A consumer lease is taken to comply with this section despite any 17 omission or other error if the Court is satisfied that the omission or error is 18 not of such a nature as to mislead the lessee to his or her disadvantage. 19 (3) A lessor must not enter into a consumer lease that contravenes a 20 requirement of this section. 21 Maximum penalty (subsection (3))--100 penalty units. 22 of lease etc. for lessee 23 Copy 153. A lessor must, within 14 days after entering into a consumer lease, 24 give to the lessee a copy of the consumer lease, together with a statement in 25 the form prescribed by the regulations explaining the rights and obligations 26 of a lessee. 27 Maximum penalty--50 penalty units. 28

 


 

s 154 107 s 155 Consumer Credit (Queensland) goods and deferrals or waivers under consumer leases 1 Further 154. The provision of further goods under a consumer lease or a change 2 in a consumer lease as a result of a deferral or waiver of payment of an 3 amount payable under a consumer lease is not to be treated as creating a 4 new consumer lease for the purposes of this Part or as creating a credit 5 contract, if the provision of the further goods or the deferral or waiver is 6 permitted by this Code or the consumer lease. 7 3--Other provisions applicable to consumer leases 8 Division of certain Code provisions to consumer leases 9 Application 155.(1) The following provisions of this Code apply in relation to a 10 consumer lease in the same way as they apply in relation to credit 11 contracts-- 12 (a) Division 3 of Part 4 (relating to changes to contracts on the 13 grounds of hardship and unjust transactions), other than 14 section 72; 15 (b) sections 90 to 93 (relating to information as to mortgaged goods, 16 entry to residential property to take possession of goods and 17 orders by the Court for entry and possession); 18 (c) Part 11 (relating to miscellaneous matters). 19 (2) For the purposes of the application of those provisions-- 20 (a) references to a credit provider are to be read as references to a 21 lessor; and 22 (b) references to a debtor are to be read as references to a lessee; and 23 (c) references to a credit contract or contract are to be read as 24 references to a consumer lease; and 25 (d) references to mortgaged goods are to be read as references to 26 goods hired under a consumer lease. 27 (3) For the purposes of the application of Division 3 of Part 4, the words 28 `(without a change being made to the annual percentage rate or rates)' are 29 taken to be omitted from section 66 wherever occurring. 30

 


 

s 156 108 s 157 Consumer Credit (Queensland) of repossession 1 Notice 156.(1) A lessor must not exercise any right under a consumer lease to 2 take possession of goods subject to the lease unless the lessor has given the 3 lessee 30 days' written notice of the lessor's intention to do so. 4 (2) However, the lessor is not required to give the notice in accordance 5 with this section if-- 6 (a) the right arises under a lease granted for a fixed term at the end of 7 that term; or 8 (b) the lessor believes on reasonable grounds that the lessee has 9 disposed of goods hired under the lease, or intends to dispose of 10 such goods, contrary to the terms of the lease; or 11 (c) the lessor has made reasonable attempts to locate the lessee but 12 without success; or 13 (d) the lessee is insolvent; or 14 (e) the Court authorises the lessor to do so. 15 Maximum penalty--50 penalty units. 16 of lease 17 Termination 157.(1) A lessee may, at any time before the end of a consumer lease, 18 end the lease by returning the goods hired under the lease to the lessor 19 during ordinary business hours or at such other time as may be agreed with 20 the lessor or fixed by the Court on the application of the lessee. 21 (2) The amount payable by a lessee on the termination of a consumer 22 lease under this section before the end of its fixed term is-- 23 (a) the amount payable under the lease on such a termination; or 24 (b) the amount determined in accordance with the principles (if any) 25 set out in the regulations for the purposes of this section; 26 whichever is the lesser. 27

 


 

s 158 109 s 158 Consumer Credit (Queensland) PART 11--MISCELLANEOUS 1 Division 1--Tolerances and assumptions 2 and assumptions relating to information 3 Tolerances 158.(1) Disclosures generally. Information disclosed in a pre-contractual 4 statement, contract document, mortgage document or guarantee, statement, 5 notice or consumer lease, or otherwise disclosed for the purposes of this 6 Code, is taken to be correctly disclosed if-- 7 (a) it is within tolerances allowed by the regulations; and 8 (b) the disclosure is made as at a date stated in it. 9 (2) Disclosure of interest charges. Disclosures for the purposes of this 10 Code relating to interest charges may be made on the following 11 assumptions (and such other assumptions under this section as are 12 applicable)-- 13 (a) that, in the case of an annual percentage rate or default rate, there 14 will be no variation in the rate as disclosed over the whole term of 15 the contract or any shorter term for which it applies; 16 (b) if a change to a variable rate is provided for by the contract, that 17 the variable rate applicable over the term for which it applies is the 18 same as the equivalent variable rate as at the date disclosure is 19 made; 20 (c) that the debtor will make the repayments required by the contract 21 at the times required by the contract. 22 (3) Disclosure of repayments. Disclosures for the purposes of this 23 Code relating to repayments may be made on the assumption that the debtor 24 will pay the repayments required by the contract at the times required by the 25 contract and on such other assumptions under this section as are applicable. 26 (4) Disclosures of credit fees and charges. Disclosures relating to 27 credit fees and charges for the purposes of this Code may be made on the 28 following assumptions (and on such other assumptions under this section 29 as are applicable)-- 30

 


 

s 159 110 s 161 Consumer Credit (Queensland) (a) that there will be no change in the credit fees and charges as so 1 disclosed and no new fees or charges imposed; 2 (b) that the debtor will pay the fees and charges required by the 3 contract at the times required by the contract. 4 (5) Disclosures in consumer leases. Disclosures for the purposes of 5 this Code relating to consideration, charges and payments in a consumer 6 lease may be made on the assumptions that there will be no change in the 7 matters disclosed and no new charges imposed. 8 (6) When information is ascertainable. Information required to be 9 disclosed for the purposes of this Code, which is not otherwise 10 ascertainable, is taken to be ascertainable if it is ascertainable, as at the date 11 the disclosure is made, on the basis of assumptions set out in this section or 12 in the regulations. 13 (7) Disclosure of names. Information disclosed for the purposes of this 14 Code as to a name is taken to be correctly disclosed if the information is 15 sufficient to identify the person concerned. 16 relating to contracts and other documents 17 Tolerances 159. An amount of interest, a fee or charge or any other amount charged, 18 payable or calculated under or in connection with a credit contract, 19 mortgage, guarantee or consumer lease is, for the purposes of this Code, 20 taken to comply with this Code if the amount is within tolerances allowed 21 by the regulations. 22 23 Regulations 160. The regulations may vary an assumption set out in this Division and 24 may provide for additional assumptions. 25 2--Documentary provisions 26 Division of notices 27 Form 161.(1) The regulations may prescribe the form of any notices required 28 or authorised to be given under this Code and may require such notices to 29

 


 

s 162 111 s 163 Consumer Credit (Queensland) contain specified information. 1 (2) A notice required to be given by a mortgagee under this Code may 2 include information required to be given in the same situation under an Act, 3 and the notice may be included in any notice given under that Act. 4 (3) A notice required or authorised to be given under this Code is to be in 5 writing unless this Code or the regulations otherwise provide. 6 and language 7 Legibility 162.(1) A credit contract, guarantee or a notice given by a credit provider 8 under this Code-- 9 (a) must be easily legible; and 10 (b) to the extent that it is printed or typed must conform with the 11 provisions of the regulations as to print or type; and 12 (c) must be clearly expressed. 13 (2) If the Court is satisfied, on application by the Government Consumer 14 Agency, that a provision of a credit contract, a guarantee or a notice given 15 by a credit provider under this Code does not comply with the requirements 16 of this section, it may prohibit the credit provider from using a provision in 17 the same or similar terms in future credit contracts, guarantees or notices. 18 (3) A credit provider that contravenes a prohibition imposed under 19 subsection (2) is guilty of an offence. 20 Maximum penalty (subsection (3))--100 penalty units. 21 of contracts and other documents 22 Copies 163.(1) A credit provider must in accordance with this section, at the 23 written request of a debtor, mortgagor or guarantor, provide to the debtor, 24 mortgagor or guarantor a copy of-- 25 (a) the credit contract, mortgage or guarantee; or 26 (b) any credit-related insurance contract in the credit provider's 27 possession; or 28 (c) a notice previously given to the debtor, mortgagor or guarantor 29 under this Code. 30

 


 

s 164 112 s 165 Consumer Credit (Queensland) (2) The copy must be provided-- 1 (a) within 14 days, if the original came into existence 1 year or less 2 before the request is given; or 3 (b) within 30 days, if the original came into existence more than 4 1 year before the request is given. 5 6 Note: Section 173 provides for the date on which notice is taken to be given. (3) A copy under this section may instead be provided in the form of a 7 computer generated facsimile containing the same information as was 8 contained in the original document, or in any other manner prescribed by 9 the regulations. Until the contrary is proved, any such facsimile or copy is 10 taken to contain the same information as the original document. 11 (4) A credit provider must provide a copy of a notice which requires a 12 debtor, mortgagor or guarantor to take action if requested in accordance 13 with subsection (1) even though the contract has been discharged or 14 terminated but only if the request is made within 2 years of the discharge or 15 termination. 16 Maximum penalty--30 penalty units. 17 of documents 18 Signing 164.(1) It is sufficient compliance with a requirement under this Code 19 that a document be signed by a person if the person's signature is written on 20 the document by another person by or under the authority of the person 21 required to sign. 22 (2) This section has effect subject to section 176 (Conduct of agents and 23 related matters). 24 3--General provisions 25 Division rown to be bound 26 C 165. This Code binds the Crown in right of this jurisdiction and, in so far 27 as the legislative power of the Legislature of this jurisdiction permits, the 28 Crown in all its other capacities. 29

 


 

s 166 113 s 168 Consumer Credit (Queensland) by credit provider 1 Assignment 166.(1) If the rights of a credit provider under a credit contract, mortgage 2 or guarantee are assigned or pass by law to another person, this Code from 3 then on applies to that other person and does not impose any further 4 obligation on the credit provider. 5 (2) The debtor, mortgagor or guarantor has and may exercise the same 6 rights in respect of the credit contract, mortgage or guarantee against the 7 assignee as the debtor, mortgagor or guarantor has against the credit 8 provider. 9 (3) Subsection (1) does not apply while the credit provider continues to 10 receive payments from the debtor. 11 by debtor, mortgagor or guarantor 12 Assignment 167.(1) If the rights of a debtor, mortgagor or guarantor under a credit 13 contract, mortgage or guarantee are assigned or pass by law to another 14 person, this Code from then on applies to that other person and does not 15 confer any further rights on the debtor, mortgagor or guarantor. 16 (2) Subsection (1) does not apply if the rights are assigned or pass by 17 law to a corporation which is neither a trustee for the debtor, mortgagor or 18 guarantor nor an executor of the debtor's, mortgagor's or guarantor's estate. 19 (3) Subsection (1) does not affect a requirement which is made of a 20 debtor or mortgagor under section 48. 21 of payments 22 Appropriation 168.(1) A debtor who is liable to a credit provider under 2 or more credit 23 contracts may require the credit provider by written notice to apply a 24 payment to a particular one of those contracts or to divide the payment 25 between them in a specified manner. 26 (2) A credit provider that contravenes a requirement under this section is 27 guilty of an offence. 28 Maximum penalty--30 penalty units. 29 (3) A debtor may not make a requirement under this section if the debtor 30 and the credit provider have previously agreed as to the application of the 31

 


 

s 169 114 s 171 Consumer Credit (Queensland) payment concerned in relation to the credit contracts under which the debtor 1 is liable to the credit provider. 2 out 3 Contracting 169.(1) A provision of a contract or other instrument by which a person 4 seeks to avoid or modify the effect of this Code is void. 5 (2) A provision of a contract or other instrument by which a person 6 seeks to have the debtor or guarantor indemnify the credit provider for any 7 loss or liability arising under this Code is void. 8 (3) A credit provider that is a party to any such contract or other 9 instrument is guilty of an offence. 10 Maximum penalty--100 penalty units. 11 (4) Subsection (2) does not affect the operation of section 55(2). 12 of noncompliance 13 Effect 170.(1) A credit contract, mortgage or guarantee or any other contract is 14 not illegal, void or unenforceable because of a contravention of this Code 15 unless this Code contains an express provision to that effect. 16 (2) Except as provided by this section, this Code does not derogate from 17 rights and remedies that exist apart from this Code. 18 notice or other document 19 Giving 171.(1) The Court may relieve a person from the obligation to give a 20 notice or other document if satisfied that a reasonable attempt has been 21 made to locate the person to whom the notice or other document is to be 22 given, but without success. The order of the Court may be made subject to 23 conditions. 24 (2) A notice or other document must be given to each debtor, mortgagor 25 or guarantor to be effective in the case of joint debtors, mortgagors or 26 guarantors. 27 (3) In a case where the joint debtors, mortgagors or guarantors reside at 28 the same address, one may be nominated by them to receive notices and 29

 


 

s 172 115 s 172 Consumer Credit (Queensland) other documents on behalf of all of them. In that event, a notice or other 1 document given to that one is, while the nomination remains in force, taken 2 to have been given to both or all of them. 3 (4) A nomination under subsection (3) must be in the form required by 4 the regulations. 5 (5) Subsection (3) does not apply in relation to default notices. 6 of giving notice or other document 7 Manner 172.(1) If this Code requires or permits a notice or other document to be 8 given to a person (whether the expression "deliver", "serve", "notify", 9 "send" or "give" or another expression is used), the notice or other 10 document may be given-- 11 (a) to a natural person-- 12 (i) by delivering it to the person personally; or 13 (ii) by leaving it at, or by sending it by post, telex, facsimile or 14 similar facility to, the address of the place of residence or 15 business of the person last known to the person giving the 16 notice or other document; or 17 (a) to a body corporate-- 18 (i) by leaving it at the registered office of the body corporate 19 with an officer of the body corporate; or 20 (ii) by sending it by post, telex, facsimile or similar electronic 21 facility to its registered office. 22 (2) Nothing in subsection (1)-- 23 (a) affects the operation of another law that authorises the service of a 24 notice or other document otherwise than as provided in 25 subsection (1); or 26 (b) affects the power of a court or tribunal to authorise service of a 27 notice or other document otherwise than as provided in 28 subsection (1). 29 (2) If this Code requires or permits a notice or other document to be 30 given by post (whether the expression "deliver", "serve", "notify", "send" 31 or "give" or another expression is used), service may be effected by 32

 


 

s 173 116 s 176 Consumer Credit (Queensland) properly addressing, prepaying and posting the notice or other document as 1 a letter. 2 of notice or other document 3 Date 173.(1) For the purposes of this Code a notice or other document is taken 4 to be given-- 5 (a) in the case of a notice or other document given personally--on 6 the date it bears or the date it is received by the addressee, 7 whichever is the later; or 8 (b) in the case of a notice or other document sent by post--on the 9 date it bears or the date when it would have been delivered in the 10 ordinary course of post, whichever is the later; or 11 (c) in the case of a notice or other document sent by facsimile 12 transmission or some other form of electronic transmission--on 13 the date it bears or the date on which the machine from which the 14 transmission was sent produces a report indicating that the notice 15 or other document was sent to the facsimile or other number of 16 the addressee, whichever is the later. 17 (2) For the purposes of this Code, the date of a notice or other document 18 is the date it is taken to be given in accordance with this section. 19 of time 20 Extensions 174. The Court may extend a period if authorised by this Code to do so 21 even though the period has elapsed. 22 of Court 23 Orders 175. An order of the Court in force under this Code, including such an 24 order as varied from time to time, has effect according to its tenor. 25 of agents and related matters 26 Conduct 176.(1) The conduct of an officer, agent or employee of a credit provider 27 acting within his or her actual or ostensible authority will be imputed to the 28 credit provider and taken to be conduct of the credit provider. 29

 


 

s 177 117 s 177 Consumer Credit (Queensland) (2) A person cannot authorise a credit provider, or a person associated 1 with a credit provider, to enter into a credit contract, mortgage or guarantee 2 on the person's behalf. 3 (3) A credit provider or person associated with a credit provider that 4 purports to act as agent of a debtor, mortgagor or a guarantor in entering 5 into a credit contract or a mortgage or guarantee is guilty of an offence. 6 Maximum penalty--50 penalty units. 7 (4) A person is associated with a credit provider if-- 8 (a) that person and the credit provider are related bodies corporate for 9 the purposes of the Corporations Law; or 10 (b) that person is an officer, agent or employee of the credit provider 11 or a related body corporate. 12 (5) A credit provider is not, for the purposes of this Code taken to know 13 or have reason to believe something because an officer, agent or employee 14 of the credit provider does so, unless the knowledge or reason to believe 15 that thing is acquired by the officer, agent or employee acting in that 16 capacity and in connection with the transaction concerned. 17 conferral of powers and jurisdiction 18 Reciprocal 177.(1) The regulations may give effect to a cross-vesting scheme under 19 which-- 20 (a) administrative and judicial powers conferred by this Code may be 21 exercised by administrative and judicial authorities of any 22 jurisdiction in which a law adopting this Code is in force; and 23 (b) administrative and judicial authorities of this jurisdiction may 24 exercise administrative and judicial powers conferred by any such 25 law of that jurisdiction. 26 (2) Nothing in subsection (1) affects any other powers of any court. 27

 


 

s 178 118 s 181 Consumer Credit (Queensland) 4--Provisions relating to offences 1 Division at end of provision 2 Penalty 178.(1) In this Code, a penalty specified at the end of-- 3 (a) a section (whether or not the section is divided into subsections); 4 or 5 (b) a subsection (but not at the end of a section); or 6 (c) a section or subsection and expressed in such a way as to indicate 7 that it applies only to part of the section or subsection; 8 indicates that an offence mentioned in the section, subsection or part is 9 punishable on conviction by a penalty not more than the specified penalty. 10 (2) If no offence is so mentioned, a contravention of the section, 11 subsection or part constitutes an offence against the provision that is 12 punishable on conviction by a penalty not more than the specified penalty. 13 (3) This section applies to the regulations in the same way as it applies to 14 this Code, subject to any necessary modification. 15 units 16 Penalty 179. A reference in this Code or the regulations to a number of penalty 17 units is to be read as a reference to an amount of money equal to the amount 18 obtained by multiplying $100 by that number of penalty units. 19 offences 20 Summary 180. An offence against this Code or the regulations is punishable 21 summarily. 22 jeopardy 23 Double 181. If an act or omission constitutes an offence-- 24 (a) under this Code; or 25 (b) under a law of this jurisdiction or a law of another jurisdiction; 26

 


 

s 182 119 s 184 Consumer Credit (Queensland) and the offender has been punished in relation to the offence under a law 1 mentioned in paragraph (b), the offender is not liable to be punished in 2 relation to the offence under this Code. 3 and abetting, attempts 4 Aiding 182.(1) A person who aids, abets, counsels or procures, or by act or 5 omission is in any way directly or indirectly concerned in or a party to, the 6 commission of an offence against this Code or the regulations is taken to 7 have committed that offence and is liable to the penalty for the offence. 8 (2) A person who attempts to commit an offence against this Code or the 9 regulations commits an offence and is punishable as if the attempted 10 offence had been committed. 11 by corporations 12 Offences 183.(1) If a corporation contravenes a provision of this Code or the 13 regulations, each officer of the corporation is taken to have contravened the 14 provision if the officer knowingly authorised or permitted the contravention. 15 (2) An officer of a corporation may be proceeded against and convicted 16 under a provision pursuant to this section whether or not the corporation has 17 been proceeded against or convicted under the provision. 18 (3) Nothing in this section affects the liability imposed on a corporation 19 for an offence committed by the corporation against this Code or the 20 regulations. 21 (4) In this section-- 22 "officer" means a director of the corporation or a person who is otherwise 23 concerned in its management. 24 25 Limitations 184. Despite anything in any Act, proceedings for an offence against this 26 Code or the regulations may be brought within the period of 3 years that 27 next succeeds the commission of the offence or, with the consent of the 28 Attorney-General, at any later time. 29

 


 

120 Consumer Credit (Queensland) CHEDULE 1 1 ¡S RINCIPAL DEFINITIONS 2 P section 3 (1) 3 In this Code, unless the contrary intention appears-- 4 "acceleration clause" see section 84. 5 "amount of credit" see section 4 (2). 6 "annual percentage rate" see section 25. 7 "cash price" of goods or services to which a credit contract relates means 8 the lowest price (unaffected by any discount between the credit 9 provider and the supplier) that a cash purchaser might reasonably be 10 expected to pay for them (either from the supplier or, if not available 11 for cash from the supplier, from another supplier). 12 "commission" includes any form of monetary consideration or any form 13 of non-monetary consideration to which a monetary value can be 14 assigned. 15 "compulsory insurance" means-- 16 (a) compulsory third-party personal injury insurance; or 17 (b) insurance of a nature declared by the regulations to be 18 compulsory insurance for the purposes of this Code. 19 "consumer credit insurance" means insurance that insures the capacity of 20 the debtor to make repayments under the credit contract, including 21 insurance against sickness of, injury to, or disability or death of, the 22 debtor or against unemployment of the debtor, and also including life 23 insurance (including insurance under a group policy) to cover any 24 outstanding amount on the debtor's death. 25 "consumer lease" see section 147. 26 "continuing credit contract" means a credit contract under which-- 27 (a) multiple advances of credit are contemplated; and 28

 


 

121 Consumer Credit (Queensland) (b) the amount of available credit ordinarily increases as the amount 1 of credit is reduced. 2 "contract" includes a series or combination of contracts, or contracts and 3 arrangements. 4 "contract document" means the document or documents setting out the 5 terms of a contract. 6 "Court", in relation to a provision of this Code, means the court or tribunal 7 which has by law jurisdiction under that provision. 8 "credit" see section 4 (1). 9 "credit contract" see section 7. 10 "credit fees and charges" means fees and charges payable in connection 11 with a credit contract or mortgage, but does not include-- 12 (a) interest charges (including default charges); or 13 (b) any fees or charges that are payable to or by a credit provider in 14 connection with a credit contract under which both credit and 15 debit facilities are available whether or not a transaction involves 16 the provision of credit (for example, transaction fees); or 17 (c) government charges and duties on receipts or withdrawals. 18 "credit provider" means a person that provides credit, and includes a 19 prospective credit provider. 20 "credit-related insurance contract" see section 132. 21 "daily percentage rate" see section 25. 22 "date" of a notice see section 173. 23 "debtor" means a person (other than a guarantor) who is liable to pay for 24 (or to repay) credit, and includes a prospective debtor. 25 "default notice" see Part 5. 26 "default rate" see section 25. 27 "dispose" of property includes-- 28 (a) sell the property; or 29 (b) part with possession of the property to the prejudice of the owner 30 or a mortgagee of the property; or 31

 


 

122 Consumer Credit (Queensland) (c) destroy the property. 1 "enforcement expenses", in relation to a mortgage, includes expenses 2 incurred by the mortgagee in preserving or maintaining property 3 subject to the mortgage (including insurance, rates and taxes payable 4 for the property) but only if the expenses are incurred after a breach 5 occurs and are authorised by the mortgage. 6 "enforcement proceedings", in relation to a credit contract or a guarantee 7 or mortgage, means-- 8 (a) proceedings in a court to recover a payment due under the 9 contract or a guarantee; or 10 (b) taking possession of property under a mortgage or taking any 11 other action to enforce a mortgage. 12 "goods" includes-- 13 (a) ships, aircraft or other vehicles; or 14 (b) animals, including fish; or 15 (c) minerals, trees or crops, whether on, under or attached to land or 16 not; 17 but does not include anything declared by the regulations not to be 18 goods for the purposes of this Code. 19 "goods mortgage" means a mortgage over goods. 20 "Government Consumer Agency" means the person who, or body 21 which, has by law the functions of the Government Consumer Agency 22 under this Code. 23 "guarantee" includes an indemnity (other than one arising under a contract 24 of insurance). 25 "guarantee document" means the document or documents setting out the 26 terms of a guarantee. 27 "guarantor" includes a prospective guarantor. 28 "insolvent" means-- 29 (a) in the case of a natural person--a person who is an insolvent 30 under administration within the meaning of the Corporations 31 Law; or 32

 


 

123 Consumer Credit (Queensland) (b) in the case of a corporation--a corporation that is an 1 externally-administered corporation within the meaning of the 2 Corporations Law. 3 "jurisdiction" means a State or Territory. 4 "key requirement" see Part 6. 5 "land" includes any interest in land. 6 "linked credit provider" see section 117 (1). 7 "merchant service agreement" means an agreement between a credit 8 provider and a supplier of goods and services under which the credit 9 provider agrees to pay to the supplier amounts for goods or services 10 supplied by the supplier and paid by means of credit cards, whether or 11 not the credit cards are issued by the credit provider. 12 "mortgage" includes-- 13 (a) any interest in, or power over, property securing obligations of a 14 debtor or guarantor; or 15 (b) a credit provider's title to land or goods subject to a sale by 16 instalments; or 17 (c) a mortgage taken to have been entered into under section 10 (3); 18 but does not include a consumer lease to which Part 10 applies. 19 "mortgage document" means the document or documents setting out the 20 terms of a mortgage by reference to which the mortgage is created. 21 "mortgagor" includes a prospective mortgagor. 22 "ordinarily resident" in a jurisdiction means, if the person concerned is 23 not ordinarily resident in Australia, resident for the time being in the 24 jurisdiction. 25 "penalty unit" see section 179. 26 "predominant" purpose for which credit is provided or goods are hired 27 under a consumer lease means-- 28 (a) a purpose for which more than half of the credit is or goods are 29 intended to be used; or 30 (b) if the credit is intended to be used to obtain goods or services 31 intended to be used for more than one purpose, or the goods are 32

 


 

124 Consumer Credit (Queensland) intended to be used for more than one purpose, the purpose for 1 which the goods or services are intended to be most used. 2 "purchaser" means-- 3 (a) in relation to goods--a person who purchases, or proposes to 4 purchase, the goods; or 5 (b) in relation to services--a person who contracts, or proposes to 6 contract, to obtain services. 7 "reference rate" means a benchmark, index or other reference rate. 8 "regulation" means a regulation made or in force for the purposes of this 9 Code. 10 "sale contract" see section 115. 11 "services" includes-- 12 (a) rights in relation to any interest in real property; or 13 (b) insurance; or 14 (c) professional services; or 15 (d) a right to services; 16 but does not include the provision of credit or a right to credit or 17 services provided under a consumer lease. 18 "strata corporation" means-- 19 (a) a body corporate incorporated in relation to land subdivided 20 wholly or mainly for residential purposes under a law of this or 21 some other jurisdiction providing for strata, cluster, precinct or 22 other subdivision of land; or 23 (b) a body corporate whose issued shares confer a right to occupy 24 land for residential purposes. 25 "supplier" means a supplier of goods or services. 26 "supply" includes agree to supply. 27 "termination" of a contract includes the discharge or rescission of the 28 contract. 29 "tied continuing credit contract" see section 117 (2). 30

 


 

125 Consumer Credit (Queensland) "tied loan contract" see section 117 (3). 1 "unpaid balance" see section 25. 2 "unpaid daily balance" see section 25. 3

 


 

126 Consumer Credit (Queensland) CHEDULE 2 1 ¡S ISCELLANEOUS PROVISIONS RELATING TO 2 M INTERPRETATION 3 section 3 (2) 4 PART 1--PRELIMINARY 5 of Schedule by contrary intention 6 Displacement 1. The application of this Schedule may be displaced, wholly or partly, 7 by a contrary intention appearing in this Code. 8 PART 2--GENERAL 9 to be construed not to exceed legislative power of Legislature 10 Code 2.(1) This Code is to be construed as operating to the full extent of, but 11 so as not to exceed, the legislative power of the Legislature of this 12 jurisdiction. 13 (2) If a provision of this Code, or the application of a provision of this 14 Code to a person, subject matter or circumstance, would, but for this clause, 15 be construed as being in excess of the legislative power of the Legislature of 16 this jurisdiction-- 17 (a) it is a valid provision to the extent to which it is not in excess of 18 the power; and 19 (b) the remainder of this Code, and the application of the provision to 20 other persons, subject matters or circumstances, is not affected. 21 (3) This clause applies to this Code in addition to, and without limiting 22 the effect of, any provision of this Code. 23

 


 

127 Consumer Credit (Queensland) section to be a substantive enactment 1 Every 3. Every section of this Code has effect as a substantive enactment 2 without introductory words. 3 that is, and is not, part of this Code 4 Material 4.(1) The heading to a Part, Division or Subdivision into which this Code 5 is divided is part of this Code. 6 (2) A Schedule to this Code is part of this Code. 7 (3) Punctuation in this Code is part of this Code. 8 (4) A heading to a section or subsection of this Code does not form part 9 of this Code. 10 (5) Notes included in this Code (including footnotes and endnotes) do 11 not form part of this Code. 12 to particular Acts and to enactments 13 References 5. In this Code-- 14 (a) an Act of this jurisdiction may be cited-- 15 (i) by its short title; or 16 (ii) by reference to the year in which it was passed and its 17 number; and 18 (b) a Commonwealth Act may be cited-- 19 (i) by its short title; or 20 (ii) in another way sufficient in a Commonwealth Act for the 21 citation of such an Act; 22 together with a reference to the Commonwealth; and 23 (c) an Act of another jurisdiction may be cited-- 24 (i) by its short title; or 25 (ii) in another way sufficient in an Act of the jurisdiction for the 26 citation of such an Act; 27 together with a reference to the jurisdiction. 28

 


 

128 Consumer Credit (Queensland) taken to be included in Act or Code citation etc. 1 References 6.(1) A reference in this Code to an Act includes a reference to-- 2 (a) the Act as originally enacted, and as amended from time to time 3 since its original enactment; and 4 (b) if the Act has been repealed and re-enacted (with or without 5 modification) since the enactment of the reference--the Act as 6 re-enacted, and as amended from time to time since its 7 re-enactment. 8 (2) A reference in this Code to a provision of this Code or of an Act 9 includes a reference to-- 10 (a) the provision as originally enacted, and as amended from time to 11 time since its original enactment; and 12 (b) if the provision has been omitted and re-enacted (with or without 13 modification) since the enactment of the reference--the provision 14 as re-enacted, and as amended from time to time since its 15 re-enactment. 16 (3) Subclauses (1) and (2) apply to a reference in this Code to a law of 17 the Commonwealth or another jurisdiction as they apply to a reference in 18 this Code to an Act and to a provision of an Act. 19 best achieving Code's purpose 20 Interpretation 7.(1) In the interpretation of a provision of this Code, the interpretation 21 that will best achieve the purpose or object of this Code is to be preferred to 22 any other interpretation. 23 (2) Subclause (1) applies whether or not the purpose is expressly stated 24 in this Code. 25 of extrinsic material in interpretation 26 Use 8.(1) In this clause-- 27 "extrinsic material" means relevant material not forming part of this Code, 28 including, for example-- 29

 


 

129 Consumer Credit (Queensland) (a) material that is set out in the document containing the text of this 1 Code as printed by the Government Printer of Queensland; and 2 (b) a relevant report of a Royal Commission, Law Reform 3 Commission, commission or committee of inquiry, or a similar 4 body, that was laid before the Legislative Assembly of 5 Queensland before the provision concerned was enacted; and 6 (c) a relevant report of a committee of the Legislative Assembly of 7 Queensland that was made to the Legislative Assembly of 8 Queensland before the provision was enacted; and 9 (d) a treaty or other international agreement that is mentioned in this 10 Code; and 11 (e) an explanatory note or memorandum relating to the Bill that 12 contained the provision, or any relevant document, that was laid 13 before, or given to the members of, the Legislative Assembly of 14 Queensland by the member bringing in the Bill before the 15 provision was enacted; and 16 (f) the speech made to the Legislative Assembly of Queensland by 17 the member in moving a motion that the Bill be read a second 18 time; and 19 (g) material in the Votes and Proceedings of the Legislative 20 Assembly of Queensland or in any official record of debates in 21 the Legislative Assembly of Queensland; and 22 (h) a document that is declared by this Code to be a relevant 23 document for the purposes of this clause; 24 "ordinary meaning" means the ordinary meaning conveyed by a 25 provision having regard to its context in this Code and to the purpose 26 of this Code. 27 (2) Subject to subclause (3), in the interpretation of a provision of this 28 Code, consideration may be given to extrinsic material capable of assisting 29 in the interpretation-- 30 (a) if the provision is ambiguous or obscure--to provide an 31 interpretation of it; or 32

 


 

130 Consumer Credit (Queensland) (b) if the ordinary meaning of the provision leads to a result that is 1 manifestly absurd or is unreasonable--to provide an 2 interpretation that avoids such a result; or 3 (c) in any other case--to confirm the interpretation conveyed by the 4 ordinary meaning of the provision. 5 (3) In determining whether consideration should be given to extrinsic 6 material, and in determining the weight to be given to extrinsic material, 7 regard is to be had to-- 8 (a) the desirability of a provision being interpreted as having its 9 ordinary meaning; and 10 (b) the undesirability of prolonging proceedings without 11 compensating advantage; and 12 (c) other relevant matters. 13 of change of drafting practice and use of examples 14 Effect 9. If-- 15 (a) a provision of this Code expresses an idea in particular words; 16 and 17 (b) a provision enacted later appears to express the same idea in 18 different words for the purpose of implementing a different 19 legislative drafting practice, including, for example-- 20 (i) the use of a clearer or simpler style; or 21 (ii) the use of gender-neutral language; 22 the ideas must not be taken to be different merely because different 23 words are used. 24 of examples 25 Use 10. If this Code includes an example of the operation of a provision-- 26 (a) the example is not exhaustive; and 27 (b) the example does not limit, but may extend, the meaning of the 28 provision; and 29

 


 

131 Consumer Credit (Queensland) (c) the example and the provision are to be read in the context of each 1 other and the other provisions of this Code, but, if the example 2 and the provision so read are inconsistent, the provision prevails. 3 with forms 4 Compliance 11.(1) If a form is prescribed or approved by or for the purpose of this 5 Code, strict compliance with the form is not necessary and substantial 6 compliance is sufficient. 7 (2) If a form prescribed or approved by or for the purpose of this Code 8 requires-- 9 (a) the form to be completed in a specified way; or 10 (b) specified information or documents to be included in, attached to 11 or given with the form; or 12 (c) the form, or information or documents included in, attached to or 13 given with the form, to be verified in a specified way; 14 the form is not properly completed unless the requirement is complied with. 15 PART 3--TERMS AND REFERENCES 16 17 Definitions 12.(1) In this Code-- 18 "Act" means an Act of the Legislature of this jurisdiction. 19 "adult" means an individual who is 18 or more. 20 "affidavit", in relation to a person allowed by law to affirm, declare or 21 promise, includes affirmation, declaration and promise. 22 "amend" includes-- 23 (a) omit or omit and substitute; or 24 (b) alter or vary; or 25 (c) amend by implication. 26

 


 

132 Consumer Credit (Queensland) "appoint" includes re-appoint. 1 "Australia" means the Commonwealth of Australia but, when used in a 2 geographical sense, does not include an external Territory. 3 "business day" means a day that is not-- 4 (a) a Saturday or Sunday; or 5 (b) a public holiday, special holiday or bank holiday in the place in 6 which any relevant act is to be or may be done. 7 "calendar month" means a period starting at the beginning of any day of 1 8 of the 12 named months and ending-- 9 (a) immediately before the beginning of the corresponding day of the 10 next named month; or 11 (b) if there is no such corresponding day--at the end of the next 12 named month. 13 "calendar year" means a period of 12 months beginning on 1 January. 14 "commencement", in relation to this Code or an Act or a provision of this 15 Code or an Act, means the time at which this Code, the Act or 16 provision comes into operation. 17 "Commonwealth" means the Commonwealth of Australia but, when used 18 in a geographical sense, does not include an external Territory. 19 "confer", in relation to a function, includes impose. 20 "contravene" includes fail to comply with. 21 "country" includes-- 22 (a) a federation; or 23 (b) a state, province or other part of a federation. 24 "date of assent", in relation to an Act, means the day on which the Act 25 receives the Royal Assent. 26 "definition" means a provision of this Code (however expressed) that-- 27 (a) gives a meaning to a word or expression; or 28 (b) limits or extends the meaning of a word or expression. 29

 


 

133 Consumer Credit (Queensland) "document" includes-- 1 (a) any paper or other material on which there is writing; or 2 (b) any paper or other material on which there are marks, figures, 3 symbols or perforations having a meaning for a person qualified 4 to interpret them; or 5 (c) any disc, tape or other article or any material from which sounds, 6 images, writings or messages are capable of being reproduced 7 (with or without the aid of another article or device). 8 "estate" includes easement, charge, right, title, claim, demand, lien or 9 encumbrance, whether at law or in equity. 10 "expire" includes lapse or otherwise cease to have effect. 11 "external Territory" means a Territory, other than an internal Territory, for 12 the government of which as a Territory provision is made by a 13 Commonwealth Act. 14 "fail" includes refuse. 15 "financial year" means a period of 12 months beginning on 1 July. 16 "foreign country" means a country (whether or not an independent 17 sovereign State) outside Australia and the external Territories. 18 "function" includes duty. 19 "Gazette" means the Government Gazette of this jurisdiction. 20 "Gazette notice" means notice published in the Gazette. 21 "gazetted" means published in the Gazette. 22 "Government Printer" means the Government Printer of this jurisdiction, 23 and includes any other person authorised by the Government of this 24 jurisdiction to print an Act or instrument. 25 "individual" means a natural person. 26 "insert", in relation to a provision of this Code, includes substitute. 27 "instrument" includes a statutory instrument. 28 "interest", in relation to land or other property, means-- 29 (a) a legal or equitable estate in the land or other property; or 30

 


 

134 Consumer Credit (Queensland) (b) a right, power or privilege over, or in relation to, the land or other 1 property. 2 "internal Territory" means the Australian Capital Territory, the Jervis Bay 3 Territory or the Northern Territory. 4 "Jervis Bay Territory" means the Territory mentioned in the Jervis 5 BayTerritory Acceptance Act 1915 (Cwlth). 6 "make" includes issue or grant. 7 "minor" means an individual who is under 18. 8 "modification" includes addition, omission or substitution. 9 "month" means a calendar month. 10 "named month" means 1 of the 12 months of the year. 11 "Northern Territory" means the Northern Territory of Australia. 12 "number" means-- 13 (a) a number expressed in figures or words; or 14 (b) a letter; or 15 (c) a combination of a number so expressed and a letter. 16 "oath", in relation to a person allowed by law to affirm, declare or promise, 17 includes affirmation, declaration or promise. 18 "office" includes position. 19 "omit", in relation to a provision of this Code or an Act, includes repeal. 20 "party" includes an individual or a body politic or corporate. 21 "penalty" includes forfeiture or punishment. 22 "person" includes an individual or a body politic or corporate. 23 "power" includes authority. 24 "prescribed" means prescribed by, or by regulations made or in force for 25 the purposes of or under, this Code. 26 "printed" includes typewritten, lithographed or reproduced by any 27 mechanical means. 28 "proceeding" means a legal or other action or proceeding. 29

 


 

135 Consumer Credit (Queensland) "property" means any legal or equitable estate or interest (whether present 1 or future, vested or contingent, or tangible or intangible) in real or 2 personal property of any description (including money), and includes 3 things in action. 4 "provision", in relation to this Code or an Act, means words or other 5 matter that form or forms part of this Code or the Act, and includes-- 6 (a) a Chapter, Part, Division, Subdivision, section, subsection, 7 paragraph, subparagraph, sub-subparagraph or Schedule of or to 8 this Code or the Act; or 9 (b) a section, clause, subclause, item, column, table or form of or in a 10 Schedule to this Code or the Act; or 11 (c) the long title and any preamble to the Act. 12 "record" includes information stored or recorded by means of a computer. 13 "repeal" includes-- 14 (a) revoke or rescind; or 15 (b) repeal by implication; or 16 (c) abrogate or limit the effect of this Code or instrument concerned; 17 or 18 (d) exclude from, or include in, the application of this Code or 19 instrument concerned any person, subject matter or circumstance. 20 "sign" includes the affixing of a seal or the making of a mark. 21 "statutory declaration" means a declaration made under an Act, or under 22 a Commonwealth Act or an Act of another jurisdiction, that authorises 23 a declaration to be made otherwise than in the course of a judicial 24 proceeding. 25 "statutory instrument" means an instrument (including a regulation) 26 made or in force under or for the purposes of this Code, and includes 27 an instrument made or in force under any such instrument. 28 "swear", in relation to a person allowed by law to affirm, declare or 29 promise, includes affirm, declare or promise. 30 "word" includes any symbol, figure or drawing. 31

 


 

136 Consumer Credit (Queensland) "writing" includes any mode of representing or reproducing words in a 1 visible form. 2 (2) In a statutory instrument-- 3 "the Code" means this Code. 4 relating to defined terms and gender and number 5 Provisions 13.(1) If this Code defines a word or expression, other parts of speech 6 and grammatical forms of the word or expression have corresponding 7 meanings. 8 (2) Definitions in or applicable to this Code apply except so far as the 9 context or subject matter otherwise indicates or requires. 10 (3) In this Code, words indicating a gender include each other gender. 11 (4) In this Code-- 12 (a) words in the singular include the plural; and 13 (b) words in the plural include the singular. 14 of may and must etc. 15 Meaning 14.(1) In this Code, the word "may", or a similar word or expression, 16 used in relation to a power indicates that the power may be exercised or not 17 exercised, at discretion. 18 (2) In this Code, the word "must", or a similar word or expression, used 19 in relation to a power indicates that the power is required to be exercised. 20 (3) This clause has effect despite any rule of construction to the contrary. 21 and expressions used in statutory instruments 22 Words 15.(1) Words and expressions used in a statutory instrument have the 23 same meanings as they have, from time to time, in this Code, or relevant 24 provisions of this Code, under or for the purposes of which the instrument 25 is made or in force. 26 (2) This clause has effect in relation to an instrument except so far as the 27 contrary intention appears in the instrument. 28

 


 

137 Consumer Credit (Queensland) of express references to bodies corporate and individuals 1 Effect 16. In this Code, a reference to a person generally (whether the 2 expression "person", "party", "someone", "anyone", "no-one", "one", 3 "another" or "whoever" or another expression is used)-- 4 (a) does not exclude a reference to a body corporate or an individual 5 merely because elsewhere in this Code there is particular 6 reference to a body corporate (however expressed); and 7 (b) does not exclude a reference to an individual or a body corporate 8 merely because elsewhere in this Code there is particular 9 reference to an individual (however expressed). 10 of records kept in computers etc. 11 Production 17. If a person who keeps a record of information by means of a 12 mechanical, electronic or other device is required by or under this Code-- 13 (a) to produce the information or a document containing the 14 information to a court, tribunal or person; or 15 (b) to make a document containing the information available for 16 inspection by a court, tribunal or person; 17 then, unless the court, tribunal or person otherwise directs-- 18 (c) the requirement obliges the person to produce or make available 19 for inspection, as the case may be, a document that reproduces the 20 information in a form capable of being understood by the court, 21 tribunal or person; and 22 (d) the production to the court, tribunal or person of the document in 23 that form complies with the requirement. 24 to this jurisdiction to be implied 25 References 18. In this Code-- 26 (a) a reference to an officer, office or statutory body is a reference to 27 such an officer, office or statutory body in and for this 28 jurisdiction; and 29

 


 

138 Consumer Credit (Queensland) (b) a reference to a locality or other matter or thing is a reference to 1 such a locality or other matter or thing in and of this jurisdiction. 2 to officers and holders of offices 3 References 19. In this Code, a reference to a particular officer, or to the holder of a 4 particular office, includes a reference to the person for the time being 5 occupying or acting in the office concerned. 6 to certain provisions of Code 7 Reference 20. If a provision of this Code refers-- 8 (a) to a Part, section or Schedule by a number and without reference 9 to this Code--the reference is a reference to the Part, section or 10 Schedule, designated by the number, of or to this Code; or 11 (b) to a Schedule without reference to it by a number and without 12 reference to this Code--the reference, if there is only 1 Schedule 13 to this Code, is a reference to the Schedule; or 14 (c) to a Division, Subdivision, subsection, paragraph, subparagraph, 15 sub-subparagraph, clause, subclause, item, column, table or form 16 by a number and without reference to this Code--the reference is 17 a reference to-- 18 (i) the Division, designated by the number, of the Part in which 19 the reference occurs; and 20 (ii) the Subdivision, designated by the number, of the Division 21 in which the reference occurs; and 22 (iii) the subsection, designated by the number, of the section in 23 which the reference occurs; and 24 (iv) the paragraph, designated by the number, of the section, 25 subsection, Schedule or other provision in which the 26 reference occurs; and 27 (v) the paragraph, designated by the number, of the clause, 28 subclause, item, column, table or form of or in the Schedule 29 in which the reference occurs; and 30

 


 

139 Consumer Credit (Queensland) (vi) the subparagraph, designated by the number, of the 1 paragraph in which the reference occurs; and 2 (vii) the sub-subparagraph, designated by the number, of the 3 subparagraph in which the reference occurs; and 4 (viii)the section, clause, subclause, item, column, table or form, 5 designated by the number, of or in the Schedule in which the 6 reference occurs; 7 as the case requires. 8 to provisions of this Code or an Act is inclusive 9 Reference 21. In this Code, a reference to a portion of this Code or an Act 10 includes-- 11 (a) a reference to the Chapter, Part, Division, Subdivision, section, 12 subsection or other provision of this Code or the Act referred to 13 that forms the beginning of the portion; and 14 (b) a reference to the Chapter, Part, Division, Subdivision, section, 15 subsection or other provision of this Code or the Act referred to 16 that forms the end of the portion. 17 18 Example-- 19 A reference to `sections 5 to 9' includes both section 5 and section 9. It is not 20 necessary to refer to `sections 5 to 9 (both inclusive)' to ensure that the reference is 21 given an inclusive interpretation. ART 4--FUNCTIONS AND POWERS 22 P of statutory functions 23 Performance 22.(1) If this Code confers a function or power on a person or body, the 24 function may be performed, or the power may be exercised, from time to 25 time as occasion requires. 26 (2) If this Code confers a function or power on a particular officer or the 27 holder of a particular office, the function may be performed, or the power 28

 


 

140 Consumer Credit (Queensland) may be exercised, by the person for the time being occupying or acting in 1 the office concerned. 2 (3) If this Code confers a function or power on a body (whether or not 3 incorporated), the performance of the function, or the exercise of the power, 4 is not affected merely because of vacancies in the membership of the body. 5 to make instrument or decision includes power to amend or 6 Power repeal 7 23. If this Code authorises or requires the making of an instrument or 8 decision-- 9 (a) the power includes power to amend or repeal the instrument or 10 decision; and 11 (b) the power to amend or repeal the instrument or decision is 12 exercisable in the same way, and subject to the same conditions, 13 as the power to make the instrument or decision. 14 for which statutory instruments may make provision 15 Matters 24.(1) If this Code authorises or requires the making of a statutory 16 instrument in relation to a matter, a statutory instrument made under this 17 Code may make provision for the matter by applying, adopting or 18 incorporating (with or without modification) the provisions of-- 19 (a) an Act or statutory instrument; or 20 (b) another document (whether of the same or a different kind); 21 as in force at a particular time or as in force from time to time. 22 (2) If a statutory instrument applies, adopts or incorporates the 23 provisions of a document, the statutory instrument applies, adopts or 24 incorporates the provisions as in force from time to time, unless the 25 statutory instrument otherwise expressly provides. 26 (3) A statutory instrument may-- 27 (a) apply generally throughout this jurisdiction or be limited in its 28 application to a particular part of this jurisdiction; or 29

 


 

141 Consumer Credit (Queensland) (b) apply generally to all persons, matters or things or be limited in 1 its application to-- 2 (i) particular persons, matters or things; or 3 (ii) particular classes of persons, matters or things; or 4 (c) otherwise apply generally or be limited in its application by 5 reference to specified exceptions or factors. 6 (4) A statutory instrument may-- 7 (a) apply differently according to different specified factors; or 8 (b) otherwise make different provision in relation to-- 9 (i) different persons, matters or things; or 10 (ii) different classes of persons, matters or things. 11 (5) A statutory instrument may authorise a matter or thing to be from 12 time to time determined, applied or regulated by a specified person or body. 13 (6) If this Code authorises or requires a matter to be regulated by 14 statutory instrument, the power may be exercised by prohibiting by 15 statutory instrument the matter or any aspect of the matter. 16 (7) If this Code authorises or requires provision to be made with respect 17 to a matter by statutory instrument, a statutory instrument made under this 18 Code may make provision with respect to a particular aspect of the matter 19 despite the fact that provision is made by this Code in relation to another 20 aspect of the matter or in relation to another matter. 21 (8) A statutory instrument may provide for the review of, or a right of 22 appeal against, a decision made under the statutory instrument, or this Code, 23 and may, for that purpose, confer jurisdiction on any court, tribunal, person 24 or body. 25 (9) A statutory instrument may require a form prescribed by or under the 26 statutory instrument, or information or documents included in, attached to 27 or given with the form, to be verified by statutory declaration. 28 of validity and power to make 29 Presumption 25.(1) All conditions and preliminary steps required for the making of a 30 statutory instrument are presumed to have been satisfied and performed in 31

 


 

142 Consumer Credit (Queensland) the absence of evidence to the contrary. 1 (2) A statutory instrument is taken to be made under all powers under 2 which it may be made, even though it purports to be made under this Code 3 or a particular provision of this Code. 4 may be made by name or office 5 Appointments 26.(1) If this Code authorises or requires a person or body-- 6 (a) to appoint a person to an office; or 7 (b) to appoint a person or body to exercise a power; or 8 (c) to appoint a person or body to do another thing; 9 the person or body may make the appointment by-- 10 (d) appointing a person or body by name; or 11 (e) appointing a particular officer, or the holder of a particular office, 12 by reference to the title of the office concerned. 13 (2) An appointment of a particular officer, or the holder of a particular 14 office, is taken to be the appointment of the person for the time being 15 occupying or acting in the office concerned. 16 appointments 17 Acting 27.(1) If this Code authorises a person or body to appoint a person to act 18 in an office, the person or body may, in accordance with this Code, 19 appoint-- 20 (a) a person by name; or 21 (b) a particular officer, or the holder of a particular office, by 22 reference to the title of the office concerned; 23 to act in the office. 24 (2) The appointment may be expressed to have effect only in the 25 circumstances specified in the instrument of appointment. 26 (3) The appointer may-- 27 (a) determine the terms and conditions of the appointment, including 28 remuneration and allowances; and 29

 


 

143 Consumer Credit (Queensland) (b) terminate the appointment at any time. 1 (4) The appointment, or the termination of the appointment, must be in, 2 or evidenced by, writing signed by the appointer. 3 (5) The appointee must not act for more than 1 year during a vacancy in 4 the office. 5 (6) If the appointee is acting in the office otherwise than because of a 6 vacancy in the office and the office becomes vacant, then, subject to 7 subclause (2), the appointee may continue to act until-- 8 (a) the appointer otherwise directs; or 9 (b) the vacancy is filled; or 10 (c) the end of a year from the day of the vacancy; 11 whichever happens first. 12 (7) The appointment ceases to have effect if the appointee resigns by 13 writing signed and delivered to the appointer. 14 (8) While the appointee is acting in the office-- 15 (a) the appointee has all the powers and functions of the holder of the 16 office; and 17 (b) this Code and other laws apply to the appointee as if the appointee 18 were the holder of the office. 19 (9) Anything done by or in relation to a person purporting to act in the 20 office is not invalid merely because-- 21 (a) the occasion for the appointment had not arisen; or 22 (b) the appointment had ceased to have effect; or 23 (c) the occasion for the person to act had not arisen or had ceased. 24 (10) If this Code authorises the appointer to appoint a person to act 25 during a vacancy in the office, an appointment to act in the office may be 26 made by the appointer whether or not an appointment has previously been 27 made to the office. 28

 


 

144 Consumer Credit (Queensland) of appointment imply certain incidental powers 1 Powers 28.(1) If this Code authorises or requires a person or body to appoint a 2 person to an office-- 3 (a) the power may be exercised from time to time as occasion 4 requires; and 5 (b) the power includes-- 6 (i) power to remove or suspend, at any time, a person 7 appointed to the office; and 8 (ii) power to appoint another person to act in the office if a 9 person appointed to the office is removed or suspended; and 10 (iii) power to reinstate or reappoint a person removed or 11 suspended; and 12 (iv) power to appoint a person to act in the office if it is vacant 13 (whether or not the office has ever been filled); and 14 (v) power to appoint a person to act in the office if the person 15 appointed to the office is absent or is unable to discharge the 16 functions of the office (whether because of illness or 17 otherwise). 18 (2) The power to remove or suspend a person under subclause (1)(b) 19 may be exercised even if this Code provides that the holder of the office to 20 which the person was appointed is to hold office for a specified period. 21 (3) The power to make an appointment under subclause (1)(b) may be 22 exercised from time to time as occasion requires. 23 (4) An appointment under subclause (1)(b) may be expressed to have 24 effect only in the circumstances specified in the instrument of appointment. 25 of powers between enactment and commencement 26 Exercise 29.(1) If a provision of this Code (the "empowering provision") that 27 does not commence on its enactment would, had it commenced, confer a 28 power-- 29 (a) to make an appointment; or 30

 


 

145 Consumer Credit (Queensland) (b) to make a statutory instrument of a legislative or administrative 1 character; or 2 (c) to do another thing; 3 then-- 4 (d) the power may be exercised; and 5 (e) anything may be done for the purpose of enabling the exercise of 6 the power or of bringing the appointment, instrument or other 7 thing into effect; 8 before the empowering provision commences. 9 (2) If a provision of a Queensland Act (the "empowering provision") 10 that does not commence on its enactment would, had it commenced, amend 11 a provision of this Code so that it would confer a power-- 12 (a) to make an appointment; or 13 (b) to make a statutory instrument of a legislative or administrative 14 character; or 15 (c) to do another thing; 16 then-- 17 (d) the power may be exercised; and 18 (e) anything may be done for the purpose of enabling the exercise of 19 the power or of bringing the appointment, instrument or other 20 thing into effect; 21 before the empowering provision commences. 22 (3) If-- 23 (a) this Code has commenced and confers a power to make a 24 statutory instrument (the "basic instrument-making power"); 25 and 26 (b) a provision of a Queensland Act that does not commence on its 27 enactment would, had it commenced, amend this Code so as to 28 confer additional power to make a statutory instrument (the 29 "additional instrument-making power"); 30 then-- 31

 


 

146 Consumer Credit (Queensland) (c) the basic instrument-making power and the additional 1 instrument-making power may be exercised by making a single 2 instrument; and 3 (d) any provision of the instrument that required an exercise of the 4 additional instrument-making power is to be treated as made 5 under subclause (2). 6 (4) If an instrument, or a provision of an instrument, is made under 7 subclause (1) or (2) that is necessary for the purpose of-- 8 (a) enabling the exercise of a power mentioned in the subclause; or 9 (b) bringing an appointment, instrument or other thing made or done 10 under such a power into effect; 11 the instrument or provision takes effect-- 12 (c) on the making of the instrument; or 13 (d) on such later day (if any) on which, or at such later time (if any) 14 at which, the instrument or provision is expressed to take effect. 15 (5) If-- 16 (a) an appointment is made under subclause (1) or (2); or 17 (b) an instrument, or a provision of an instrument, made under 18 subclause (1) or (2) is not necessary for a purpose mentioned in 19 subclause (4); 20 the appointment, instrument or provision takes effect-- 21 (c) on the commencement of the relevant empowering provision; or 22 (d) on such later day (if any) on which, or at such later time (if any) 23 at which, the appointment, instrument or provision is expressed 24 to take effect. 25 (6) Anything done under subclause (1) or (2) does not confer a right, or 26 impose a liability, on a person before the relevant empowering provision 27 commences. 28 (7) After the enactment of a provision mentioned in subclause (2) but 29 before the provision's commencement, this clause applies as if the 30 references in subclauses (2) and (5) to the commencement of the 31 empowering provision were references to the commencement of the 32

 


 

147 Consumer Credit (Queensland) provision mentioned in subclause (2) as amended by the empowering 1 provision. 2 (8) In the application of this clause to a statutory instrument, a reference 3 to the enactment of the instrument is a reference to the making of the 4 instrument. 5 PART 5--DISTANCE, TIME AND AGE 6 relating to distance, time and age 7 Matters 30.(1) In the measurement of distance for the purposes of this Code, the 8 distance is to be measured along the shortest road ordinarily used for 9 travelling. 10 (2) If a period beginning on a given day, act or event is provided or 11 allowed for a purpose by this Code, the period is to be calculated by 12 excluding the day, or the day of the act or event, and-- 13 (a) if the period is expressed to be a specified number of clear days 14 or at least a specified number of days--by excluding the day on 15 which the purpose is to be fulfilled; and 16 (b) in any other case--by including the day on which the purpose is 17 to be fulfilled. 18 (3) If the last day of a period provided or allowed by this Code for doing 19 anything is not a business day in the place in which the thing is to be or may 20 be done, the thing may be done on the next business day in the place. 21 (4) If the last day of a period provided or allowed by this Code for the 22 filing or registration of a document is a day on which the office is closed 23 where the filing or registration is to be or may be done, the document may 24 be filed or registered at the office on the next day that the office is open. 25 (5) If no time is provided or allowed for doing anything, the thing is to 26 be done as soon as possible, and as often as the prescribed occasion 27 happens. 28

 


 

148 Consumer Credit (Queensland) (6) If, in this Code, there is a reference to time, the reference is, in 1 relation to the doing of anything in a jurisdiction, a reference to the legal 2 time in the jurisdiction. 3 (7) For the purposes of this Code, a person attains an age in years at the 4 beginning of the person's birthday for the age. 5 PART 6--EFFECT OF REPEAL, AMENDMENT OR 6 EXPIRATION 7 of Code ceasing to have effect 8 Time 31. If a provision of this Code is expressed-- 9 (a) to expire on a specified day; or 10 (b) to remain or continue in force, or otherwise have effect, until a 11 specified day; 12 this provision has effect until the last moment of the specified day. 13 Code provisions not revived 14 Repealed 32. If a provision of this Code is repealed or amended by a Queensland 15 Act, or a provision of a Queensland Act, the provision is not revived merely 16 because the Queensland Act or the provision of the Queensland Act-- 17 (a) is later repealed or amended; or 18 (b) later expires. 19 of operation of repealed Code provisions 20 Saving 33.(1) The repeal, amendment or expiry of a provision of this Code does 21 not-- 22 (a) revive anything not in force or existing at the time the repeal, 23 amendment or expiry takes effect; or 24

 


 

149 Consumer Credit (Queensland) (b) affect the previous operation of the provision or anything 1 suffered, done or begun under the provision; or 2 (c) affect a right, privilege or liability acquired, accrued or incurred 3 under the provision; or 4 (d) affect a penalty incurred in relation to an offence arising under the 5 provision; or 6 (e) affect an investigation, proceeding or remedy in relation to such a 7 right, privilege, liability or penalty. 8 (2) Any such penalty may be imposed and enforced, and any such 9 investigation, proceeding or remedy may be begun, continued or enforced, 10 as if the provision had not been repealed or amended or had not expired. 11 of repealed provisions 12 Continuance 34. If a Queensland Act repeals some provisions of this Code and enacts 13 new provisions in substitution for the repealed provisions, the repealed 14 provisions continue in force until the new provisions commence. 15 and amending Acts to be read as one 16 Code 35. This Code and all Queensland Acts amending this Code are to be 17 read as one. 18 PART 7--INSTRUMENTS UNDER CODE 19 applies to statutory instruments 20 Schedule 36.(1) This Schedule applies to a statutory instrument, and to things that 21 may be done or are required to be done under a statutory instrument, in the 22 same way as it applies to this Code, and things that may be done or are 23 required to be done under this Code, except so far as the context or subject 24 matter otherwise indicates or requires. 25

 


 

150 Consumer Credit (Queensland) (2) The fact that a provision of this Schedule refers to this Code and not 1 also to a statutory instrument does not, by itself, indicate that the provision 2 is intended to apply only to this Code. 3 PART 8--APPLICATION TO COASTAL SEA 4 5 Application 37. This Code has effect in and relation to the coastal sea of this 6 jurisdiction as if that coastal sea were part of this jurisdiction. 7 8 © State of Queensland 1994