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This is a Bill, not an Act. For current law, see the Acts databases.


CONSUMER CREDIT (FINANCE BROKERS) BILL 1998

                 PARLIAMENT OF VICTORIA

     Consumer Credit (Finance Brokers) Act 1998
                                 Act No.


                     TABLE OF PROVISIONS
Clause                                                                  Page
  1.     Purposes                                                          1
  2.     Commencement                                                      2
  3.     Principal Act                                                     2
  4.     New Part 4A inserted                                              2
         PART 4A--FINANCE BROKING                                          2
         Division 1--Preliminary                                           2
         37A. Definitions                                                  2
         37B. Exemption from this Part                                     4
         Division 2--Offences                                              4
         37C. Certain persons prohibited from engaging in finance
              broking                                                      4
         37D. Certain persons not to be directors of or to manage or
              control corporations that engage in finance broking          6
         37E. Who or what is a disqualified person?                        7
         Division 3--Permission to engage in finance broking               9
         37F. Applications for permission to engage or be involved in
              finance broking                                              9
         37G. Permission from the Authority                                9
         37H. Authority may impose conditions                             10
         37I. Application for review                                      11
         Division 4--Permissible fees                                     11
         37J. Requirements before finance brokers may demand or
              accept fees                                                 11
         37K. Fee representing reasonable costs and expenses payable
              in certain circumstances                                    14
         37L. Finance brokers not to demand receive accept or charge
              fee to which they are not entitled                          15
         37M. Valuation and credit application fees                       16




                                      i
532095B.A1-9/10/98

 


 

Clause Page Division 5--Jurisdiction of courts and the Tribunal under Part 4A 17 37N. Right to recover fees if there is non-compliance with this Part 17 37O. Jurisdiction of the Tribunal to order repayment of fees 18 37P. Court power to order repayment where there is a contravention of section 37L 18 Division 6--Miscellaneous and transitional provisions 18 37Q. Documents of appointment must be held for 7 years 18 37R. Misrepresentation 19 37S. Register of finance brokers and agents 19 37T. Finance broker licences and agents licences 20 37U. Director to exercise and perform certain powers and duties of Registrar 20 5. Consequential amendments to Principal Act 20 6. Regulations 21 7. Amendment of Credit (Administration) Act 1984 21 8. Repeal 22 NOTES 23 ii 532095B.A1-9/10/98

 


 

PARLIAMENT OF VICTORIA Initiated in Assembly 2 September 1998 As amended by Assembly 8 October 1998 A BILL to repeal the Finance Brokers Act 1969, to amend the Consumer Credit (Victoria) Act 1995 so as to prohibit certain persons from engaging or being involved in finance broking, to empower the Business Licensing Authority to permit certain persons to engage in finance broking and for other purposes. Consumer Credit (Finance Brokers) Act 1998 The Parliament of Victoria enacts as follows: 1. Purposes The main purposes of this Act are-- (a) to repeal the Finance Brokers Act 1969; and 1 532095B.A1-9/10/98

 


 

Consumer Credit (Finance Brokers) Act 1998 s. 2 Act No. (b) to insert a new Part into the Consumer Credit (Victoria) Act 1995 so as to prohibit certain persons from engaging or being involved in finance broking; and 5 (c) to empower the Business Licensing Authority to permit certain persons to engage in finance broking who would be, but for that permission, disqualified from doing so; and 10 (d) to make consequential amendments to the Consumer Credit (Victoria) Act 1995 and the Credit Administration Act 1984. 2. Commencement This Act comes into operation on 1 July 1999. 15 3. Principal Act No. 41/1995. In this Act, the Consumer Credit (Victoria) Act Reprint No. 1 1995 is called the Principal Act. as at 1 July 1998. 4. New Part 4A inserted After Part 4 of the Principal Act insert-- 20 'PART 4A--FINANCE BROKING Division 1--Preliminary 37A. Definitions In this Part-- "client" means a person who appoints a 25 finance broker to negotiate consumer credit on their behalf for a fee; 2 532095B.A1-9/10/98

 


 

Consumer Credit (Finance Brokers) Act 1998 s. 4 Act No. "consumer credit" means-- (a) a credit contract within the meaning of the Consumer Credit (Victoria) Code; or 5 (b) a consumer lease to which Part 10 of the Consumer Credit (Victoria) Code applies; "credit application fee" means any fee charged by-- 10 (a) a credit provider in respect of an application for the provision of credit under a credit contract within the meaning of the Consumer Credit (Victoria) Code; 15 or (b) a lessor in respect of an application to enter into a consumer lease to which Part 10 of the Consumer Credit (Victoria) 20 Code applies; "engage in finance broking" means-- (a) to negotiate consumer credit for a fee; or (b) to hold oneself out to the public 25 as being prepared, for a fee, to negotiate consumer credit; "fee" includes a charge, commission, reward or other remuneration, whether monetary or otherwise; 30 "finance broker" means a person who engages in finance broking; 3 532095B.A1-9/10/98

 


 

Consumer Credit (Finance Brokers) Act 1998 s. 4 Act No. "negotiate consumer credit" means to negotiate, or to act as intermediary to obtain, consumer credit for persons other than an employer or principal 5 (except where that principal is the client) of the person so negotiating or acting; "valuation fee" means any fee for a valuation obtained in respect of any 10 security to be offered for any proposed credit contract within the meaning of the Consumer Credit (Victoria) Code. 37B. Exemption from this Part (1) The Governor in Council may, by Order 15 published in the Government Gazette, declare that this Part, wholly or to the extent specified in the Order, does not apply to-- (a) a specified person or to a specified class of person; or 20 (b) a specified transaction or to a specified class of transaction. (2) An Order made under sub-section (1)-- (a) may specify the period during which the Order shall remain in force; and 25 (b) may provide that its operation is subject to such terms and conditions as are specified in the Order. Division 2--Offences 37C. Certain persons prohibited from engaging 30 in finance broking 4 532095B.A1-9/10/98

 


 

Consumer Credit (Finance Brokers) Act 1998 s. 4 Act No. (1) A person is prohibited from engaging in finance broking if that person-- (a) in the case of a natural person-- (i) is under 18 years of age; or 5 (ii) is an insolvent under administration; or (iii) is a represented person within the meaning of the Guardianship and Administration Act 1986; or 10 (b) in the case of a corporation-- (i) is an externally administered body corporate; or (ii) is a corporation one or more of the directors of which is-- 15 (A) a person referred to in paragraph (a); or (B) a disqualified person who does not hold permission given by the Authority under 20 Division 3 to be a director of a corporation that engages in finance broking; or (iii) is a corporation that is managed or effectively controlled by a natural 25 person who is-- (A) a person referred to in paragraph (a); or (B) a disqualified person who does not hold permission 30 given by the Authority under Division 3 to manage or effectively control a 5 532095B.A1-9/10/98

 


 

Consumer Credit (Finance Brokers) Act 1998 s. 4 Act No. corporation that engages in finance broking; or (c) in any case, is a disqualified person that does not hold permission given by the 5 Authority under Division 3 to engage in finance broking. (2) A person prohibited by sub-section (1) from doing so must not engage in finance broking. Penalty: In the case of a corporation, 10 240 penalty units; In any other case, 240 penalty units or 2 years imprisonment. 37D. Certain persons not to be directors of or to manage or control corporations that engage 15 in finance broking (1) A natural person is prohibited from being a director of, or managing or effectively controlling, a corporation that engages in finance broking if he or she is-- 20 (a) prohibited from engaging in finance broking by virtue of section 37C(1)(a); or (b) a disqualified person who does not hold permission given by the Authority 25 under Division 3 to be a director of, or manage or effectively control, a corporation that engages in finance broking (as the case may be). (2) A natural person who is prohibited by sub- 30 section (1) from doing so must not be a director of, or manage or effectively control, a corporation that engages in finance broking. Penalty: 240 penalty units or 2 years 35 imprisonment. 6 532095B.A1-9/10/98

 


 

Consumer Credit (Finance Brokers) Act 1998 s. 4 Act No. 37E. Who or what is a disqualified person? (1) A disqualified person for the purposes of this Part is a natural person who, or a corporation that-- 5 (a) in the preceding 10 years has been found guilty-- (i) in Victoria or elsewhere, of an offence involving fraud, dishonesty, drug trafficking or 10 violence; or (ii) of an offence against the Credit Act 1984, the Credit (Administration) Act 1984, this Act, the Consumer Credit 15 (Victoria) Code or a similar enactment of another State or a Territory of Australia; or (iii) of an offence against the Finance Brokers Act 1969 or a similar 20 enactment of another State or a Territory of Australia; or (b) in the preceding 2 years has had their application for the grant or renewal of a finance broker's licence under the 25 Finance Brokers Act 1969 refused; or (c) in the preceding 2 years has had their application for the grant or renewal of a finance broker's licence, or for registration to act as a finance broker, 30 refused under any enactment of another State or a Territory of Australia; or 7 532095B.A1-9/10/98

 


 

Consumer Credit (Finance Brokers) Act 1998 s. 4 Act No. (d) in the preceding 5 years has had their finance broker's licence cancelled under the Finance Brokers Act 1969; or (e) in the preceding 5 years has had their 5 finance broker's licence, or registration to act as a finance broker, cancelled under any enactment of another State or a Territory of Australia. (2) Any person that-- 10 (a) immediately before 1 July 1999 held a finance broker's licence under the Finance Brokers Act 1969 or any enactment of another State or a Territory of Australia, or was registered 15 to act as a finance broker under any enactment of another State or Territory of Australia; and (b) but for this sub-section would become a disqualified person within the meaning 20 of sub-section (1) at the beginning of that date by reason of a finding of guilt, refusal or cancellation that occurred before that date-- is not to be regarded as a disqualified person 25 for the purposes of this Part. (3) A person that-- (a) at any time after 1 July 1999 becomes a disqualified person within the meaning of sub-section (1); and 30 (b) immediately before becoming a disqualified person was engaged in finance broking or was a director of, or managed or effectively controlled, a corporation that was engaged in finance 35 broking (as the case may be)-- 8 532095B.A1-9/10/98

 


 

Consumer Credit (Finance Brokers) Act 1998 s. 4 Act No. is not to be regarded as a disqualified person for the purposes of this Part until-- (c) the expiry of 30 days after becoming a disqualified person; or 5 (d) if an application for permission under Division 3 is made before that expiry, the application is withdrawn or refused. Division 3--Permission to engage in finance broking 10 37F. Applications for permission to engage or be involved in finance broking (1) A disqualified person within the meaning of section 37E(1) may apply to the Authority at any time for permission to do any or all of 15 the following-- (a) engage in finance broking; or (b) be a director of a corporation that engages in finance broking; or (c) manage or effectively control a 20 corporation that engages in finance broking. (2) An application must be-- (a) in a form approved by the Authority; and 25 (b) accompanied by a fee of $150 or any other fee that is prescribed. (3) An application may be withdrawn at any time before the Authority determines it. 37G. Permission from the Authority 30 (1) The Authority may give its permission if it is satisfied that it is not contrary to the public interest for it to do so. 9 532095B.A1-9/10/98

 


 

Consumer Credit (Finance Brokers) Act 1998 s. 4 Act No. (2) In determining whether to give its permission, the Authority-- (a) is not required to conduct a hearing; (b) may require the applicant to provide 5 such further information as it considers necessary; (c) may seek and use information and advice from any person or body or other source as it thinks fit. 10 (3) Without limiting its discretion to do so, the Authority may refuse to give its permission if-- (a) the applicant refuses or fails to provide any information requested by the 15 Authority under sub-section (2)(b); or (b) the applicant unreasonably delays the consideration of the application. 37H. Authority may impose conditions (1) In giving its permission under this Division, 20 the Authority may impose any conditions it considers appropriate to ensure the ongoing protection of the public interest. (2) The person given the permission, or the Director, may apply to the Authority for a 25 variation or revocation of any conditions the Authority has imposed. (3) A person given the permission must comply with any conditions imposed in respect of that permission. 30 Penalty: In the case of a corporation, 240 penalty units; In any other case, 240 penalty units or 2 years imprisonment. 10 532095B.A1-9/10/98

 


 

Consumer Credit (Finance Brokers) Act 1998 s. 4 Act No. (4) If the Authority is satisfied that any condition imposed in respect of a permission has been contravened or not complied with, it may revoke the permission. 5 (5) Before taking any action under this section, the Authority may seek and use information and advice from any person or body or other source as it thinks fit. 37I. Application for review 10 (1) A person whose interests are affected by a decision of the Authority under section 37G or 37H may apply to the Tribunal for review of the decision. (2) An application for review must be made 15 within 28 days after the later of-- (a) the day on which the decision is made; or (b) if, under the Victorian Civil and Administrative Tribunal Act 1998, 20 the person requests a statement of reasons for the decision, the day on which the statement of reasons is given to the person or the person is informed under section 46(5) of that Act that a 25 statement of reasons will not be given. Division 4--Permissible fees 37J. Requirements before finance brokers may demand or accept fees (1) A finance broker must not demand, receive 30 or accept any fee in respect of negotiating consumer credit unless-- 11 532095B.A1-9/10/98

 


 

Consumer Credit (Finance Brokers) Act 1998 s. 4 Act No. (a) the finance broker has been appointed by the client in writing to negotiate consumer credit on their behalf; and (b) the document of appointment sets out 5 the fee to be charged or its method of calculation; and (c) the document of appointment specifies the matters required by sub-section (3); and 10 (d) the client has signed the document of appointment before the finance broker commences negotiating consumer credit on their behalf; and (e) the client is given a copy of the signed 15 document of appointment before the finance broker commences negotiating consumer credit on their behalf; and (f) the client accepts-- (i) the consumer credit that is 20 specified in the document of appointment; or (ii) consumer credit negotiated by the finance broker that is reasonably comparable to the consumer credit 25 specified in the document of appointment. (2) A reference in this Part to a document of appointment is a reference to that document as varied by the finance broker and the 30 client, whether before or after the finance broker commences to negotiate consumer credit. (3) For the purposes of sub-section (1)(c)-- 12 532095B.A1-9/10/98

 


 

Consumer Credit (Finance Brokers) Act 1998 s. 4 Act No. (a) where the finance broker is being appointed to negotiate consumer credit that is a credit contract within the meaning of the Consumer Credit 5 (Victoria) Code, the matters required to be specified in the document of appointment are-- (i) the amount of credit, or if the amount of credit is not 10 ascertainable, the maximum amount of credit or credit limit to be negotiated under the credit contract; (ii) if there is a term of the credit 15 contract, that term; (iii) the maximum annual percentage rate or rates the client is prepared to pay; (iv) the duration of the appointment; 20 (v) an agreed maximum amount of credit application fees and valuation fees that the client may be required to pay; (b) where the finance broker is being 25 appointed to negotiate consumer credit that is a consumer lease to which Part 10 of the Consumer Credit (Victoria) Code applies, the matters required to be specified in the 30 document of appointment are-- (i) a description or identification of the goods to be hired under the lease; (ii) the number of rental payments to 35 be made; 13 532095B.A1-9/10/98

 


 

Consumer Credit (Finance Brokers) Act 1998 s. 4 Act No. (iii) the maximum amount of rental payable under the lease which the client is prepared to pay; (iv) the amount of any other charges 5 not included in the rental that the client is prepared to pay under the lease; (v) the duration of the appointment; (vi) an agreed maximum amount of 10 credit application fees that the client may be required to pay. 37K. Fee representing reasonable costs and expenses payable in certain circumstances (1) Despite section 37J, if the requirements of 15 paragraphs (a) to (e) of section 37J(1) have been met, the finance broker may charge a fee in respect of the reasonable costs incurred, and a reasonable fee for the services provided, by the finance broker in 20 negotiating consumer credit on behalf of the client if-- (a) the finance broker successfully negotiates the consumer credit specified in the document of 25 appointment, but the client declines to accept that consumer credit; or (b) the client terminates the appointment for any reason other than-- (i) the finance broker advising them 30 that all avenues for obtaining the consumer credit specified in the document of appointment have been exhausted; or 14 532095B.A1-9/10/98

 


 

Consumer Credit (Finance Brokers) Act 1998 s. 4 Act No. (ii) the finance broker engaging in conduct that entitles the client to terminate the appointment; or (iii) the finance broker repudiating the 5 appointment; or (iv) the agreed maximum amount of credit application and valuation fees required to be paid by the client having been paid but the 10 consumer credit specified in the document of appointment not having been negotiated within a reasonable time after the payment; or 15 (v) the consumer credit specified in the document of appointment not having been negotiated within the time agreed to in the document of appointment. 20 (2) The finance broker must not charge a fee under sub-section (1) unless the finance broker and the client agree in the document of appointment to such a fee being charged. 37L. Finance brokers not to demand receive 25 accept or charge fee to which they are not entitled A finance broker must not demand, receive, accept or charge-- (a) any fee for negotiating consumer credit 30 other than a fee to which they are entitled under this Part; or 15 532095B.A1-9/10/98

 


 

Consumer Credit (Finance Brokers) Act 1998 s. 4 Act No. (b) any deposit on account of a fee for negotiating consumer credit. Penalty: In the case of a corporation For a first offence, 30 penalty 5 units; For a subsequent offence, 60 penalty units. In any other case-- For a first offence, 30 penalty 10 units or 3 months imprisonment; For a subsequent offence, 60 penalty units or 6 months imprisonment. 37M. Valuation and credit application fees 15 (1) A finance broker must not demand payment of any valuation fees or credit application fees in cash or any other form other than in the form of a cheque, money order or other transfer made payable only to the person 20 who has provided or is to provide the valuation, or the credit provider (as the case may be). Penalty: In the case of a corporation For a first offence, 30 penalty 25 units; For a subsequent offence, 60 penalty units. In any other case-- For a first offence, 30 penalty 30 units or 3 months imprisonment; For a subsequent offence, 60 penalty units or 6 months imprisonment. 16 532095B.A1-9/10/98

 


 

Consumer Credit (Finance Brokers) Act 1998 s. 4 Act No. (2) As soon as practicable after receiving a cheque, money order or other transfer referred to in sub-section (1), the finance broker must give or deliver it to the person 5 who has provided or is to provide the valuation, or the credit provider (as the case may be). Penalty: In the case of a corporation For a first offence, 30 penalty 10 units; For a subsequent offence, 60 penalty units. In any other case-- For a first offence, 30 penalty 15 units or 3 months imprisonment; For a subsequent offence, 60 penalty units or 6 months imprisonment. Division 5--Jurisdiction of courts and the 20 Tribunal under Part 4A 37N. Right to recover fees if there is non- compliance with this Part If a finance broker charges, receives, or accepts from a client, any amount as a fee to 25 which that finance broker is not entitled under this Part, or any amount as a deposit on account of a fee for negotiating consumer credit, that client may-- (a) recover that amount as a debt in a court 30 of competent jurisdiction; or 17 532095B.A1-9/10/98

 


 

Consumer Credit (Finance Brokers) Act 1998 s. 4 Act No. (b) apply to the Tribunal for an order requiring the finance broker to repay that amount. 37O. Jurisdiction of the Tribunal to order 5 repayment of fees On the application of a client, the Tribunal may make an order for the repayment of any amount that a finance broker has received or accepted as a fee to which that finance 10 broker was not entitled, or as a deposit on account of a fee for negotiating consumer credit. 37P. Court power to order repayment where there is a contravention of section 37L 15 On finding a finance broker guilty of an offence under section 37L, the Magistrates' Court, in addition to imposing a penalty, may make an order requiring the finance broker to repay any amount that has been 20 received or accepted by the finance broker in contravention of that section, together with interest at a rate that is set by the court, not exceeding the rate for the time being fixed under section 2 of the Penalty Interest 25 Rates Act 1983, from the time the amount was received or accepted until the time the amount is repaid. Division 6--Miscellaneous and transitional provisions 30 37Q. Documents of appointment must be held for 7 years A finance broker must retain the signed original document of appointment to negotiate consumer credit for 7 years from 18 532095B.A1-9/10/98

 


 

Consumer Credit (Finance Brokers) Act 1998 s. 4 Act No. the date that the document of appointment was signed by the client. Penalty: For a first offence, 30 penalty units; 5 For a subsequent offence, 60 penalty units. 37R. Misrepresentation A finance broker must not-- (a) by a false, misleading or deceptive 10 statement, representation or promise; or (b) by any wilful concealment of a material fact-- induce or attempt to induce any person to enter into an agreement or contract for or 15 with respect to any consumer credit, or the provision of any consumer credit. Penalty: In the case of a corporation-- For a first offence, 30 penalty units; 20 For a subsequent offence, 60 penalty units. In any other case-- For a first offence, 30 penalty units or 3 months imprisonment; 25 For a subsequent offence, 60 penalty units or 6 months imprisonment. 37S. Register of finance brokers and agents On 1 July 1999, the Director shall take 30 possession, and have custody, control and use of the register within the meaning of section 6 of the Finance Brokers Act 1969. 19 532095B.A1-9/10/98

 


 

Consumer Credit (Finance Brokers) Act 1998 s. 5 Act No. 37T. Finance broker licences and agents licences (1) As soon as practicable after 1 July 1999, the Director must send a notice to every person 5 who, immediately before that date, held a finance broker's licence or agent's licence, requiring that person to give or send their licence to the Director. (2) A person must within 14 days of receipt of 10 the notice give or send their licence to the Director. Penalty: 30 penalty units. 37U. Director to exercise and perform certain powers and duties of Registrar 15 On and from 1 July 1999, any power that could have been exercised by the Registrar before that date under section 19 of the Finance Brokers Act 1969 for the purpose of ascertaining whether the provisions of that 20 Act had been complied with by any finance broker or agent before that date, vests in the Director and may be exercised by the Director for that purpose as if that Act had not been repealed.'. 25 5. Consequential amendments to Principal Act (1) In section 3(1) of the Principal Act, after the definition of "exempt credit provider" insert-- ' "externally administered body corporate" has the same meaning as in the Corporations 30 Law; "insolvent under administration" means a person who is a bankrupt in respect of a bankruptcy from which the person has not been discharged and includes-- 20 532095B.A1-9/10/98

 


 

Consumer Credit (Finance Brokers) Act 1998 s. 6 Act No. (a) a person for whom a debt agreement has been made under Part IX of the Bankruptcy Act 1966 of the Commonwealth (or the corresponding 5 provisions of the law of another jurisdiction) where the debt agreement has not ended or has not been terminated; and (b) a person who has executed a deed of 10 arrangement under Part X of the Bankruptcy Act 1966 of the Commonwealth (or the corresponding provisions of the law of another jurisdiction) where the terms of the 15 deed have not been fully complied with; and (c) a person whose creditors have accepted a composition under Part X of the Bankruptcy Act 1966 of the 20 Commonwealth (or the corresponding provisions of the law of another jurisdiction) where a final payment has not been made under that composition;'. (2) In section 30(3)(h) of the Principal Act, omit 25 "within the meaning of the Corporations Law". 6. Regulations In section 41(1) of the Principal Act, after paragraph (c) insert-- "(d) prescribing fees for applications to the 30 Authority.". 7. Amendment of Credit (Administration) Act 1984 No. 10091. (1) In section 10A of the Credit (Administration) Reprint No. 3 Act 1984, in the definition of "Credit Acts", after as at 1 July "Credit Act 1984" insert ", Consumer Credit 1998. 35 (Victoria) Act 1995". 21 532095B.A1-9/10/98

 


 

Consumer Credit (Finance Brokers) Act 1998 s. 8 Act No. (2) In section 12 of the Credit (Administration) Act 1984, after "credit provider" (wherever occurring) insert "or finance broker". (3) In section 13 of the Credit (Administration) Act 5 1984-- (a) after "mortgagee" (wherever occurring) insert "or finance broker"; (b) after "mortgage" insert "or consumer credit (as the case requires)". 10 (4) In section 14(c) of the Credit (Administration Act 1984), for "or mortgagee" (wherever occurring) substitute ", mortgagee or finance broker". 8. Repeal No. 7846. 15 The Finance Brokers Act 1969 is repealed. Reprint No. 2 as at 8 August 1997. 22 532095B.A1-9/10/98

 


 

Consumer Credit (Finance Brokers) Act 1998 Notes Act No. NOTES By Authority. Government Printer for the State of Victoria. 23 532095B.A1-9/10/98

 


 

Consumer Credit (Finance Brokers) Act 1998 Act No. 24 532095B.A1-9/10/98

 


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