Victorian Consolidated Legislation

Credit Act 1984 - SECT 5

Definitions

5. Definitions



(1) In this Act, unless the contrary intention appears-

acceptable rate of interest in relation to a loan contract or a continuing
credit contract, means an annual percentage rate that the credit provider
agrees to accept so long as the debtor duly observes and performs the terms of
the contract;





account charge in relation to a continuing credit contract, means-

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

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

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

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

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

   (a)  the minimum credit charge; or

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

whichever is the greater;

actuarial method in relation to a calculation for the purposes of a credit
sale contract or a loan contract, means the method under which-

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

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

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

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





amount financed means-

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

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

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

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

annual percentage rate means annual percentage rate within the meaning of
section 10;

authorised deposit-taking institution has the same meaning as in the
Banking Act 1959 of the Commonwealth;



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billing cycle means billing cycle as referred to in section 50;

body corporate does not, except in the case of a credit provider that is a
body corporate, include-

   (a)  an owners corporation within the meaning of the
        Owners Corporations Act 2006 consisting of the registered proprietor
        or registered proprietors of lots all or the majority of which are
        intended to be occupied as dwellings; or

   (b)  a service company within the meaning of the Transfer of Land Act 1958
        operating for the purpose of carrying out the common purposes of
        proprietors of stratum estates in allotments or units all or the
        majority of which are intended to be occupied as dwellings;

cash includes cheques;

cash price in relation to a contract of sale of, or credit sale contract
relating to, goods or services-

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

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

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

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

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

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

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

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

commercial vehicle means-

   (a)  a motor vehicle within the meaning of the Road Safety Act 1986
        constructed or adapted principally for the carriage of goods but does
        not include a motor vehicle of the kind known as a utility, a station
        wagon or a panel van; or

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

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

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

   (b)  that is paid or payable in connexion with a contract-

   (i)  that is connected with a regulated credit sale contract or regulated
        loan contract; and

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

compulsory insurance in relation to goods, means any insurance in relation to
liability in respect of death or bodily injury caused by or arising out of the
use of the goods, being insurance required by the law of the place where the
goods are or are being or are to be used;

continuing credit contract means a continuing credit contract within the
meaning of section 48;

contract for the hiring of goods includes a contract for the lease of goods or
for the grant of a licence to use goods and any other contract for the
bailment of goods;

credit includes any form of financial accommodation other than-

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

   (i)  a documentary letter of credit;

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

   (iii) becoming surety for a debtor;

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

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

   (i)  are raw materials; or

   (ii) are ordinarily acquired for the purpose of treating or repairing other
        goods or fixtures on land or of being incorporated in other goods-
for the purposes of transforming them or incorporating them in other goods-

   (iii) in trade or commerce;

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

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

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



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

credit charge means credit charge within the meaning of section 11(1);

credit contract means-

   (a)  a credit sale contract;

   (b)  a loan contract; or

   (c)  a continuing credit contract;

credit provider means-

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

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

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

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





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

   (c)  the amount payable by the debtor may be paid by five or more
        instalments or by a deposit and four or more instalments- but does not
        include any contract of a class or description of contracts prescribed
        as being credit sale contracts that are not credit sale contracts
        within the meaning of this Act;

cross-claim includes counter-claim, set-off and third party claim;

daily percentage rate in relation to a credit sale contract or a loan
contract, means the rate determined by dividing the annual percentage rate
under the contract by 365;

debtor means-

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

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

default charge means-

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



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

deferral charge means-

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

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

deposit means-

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

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

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

determination in relation to a court or a Tribunal, includes order, direction,
decision and declaration;

Director means the Director within the meaning of the Fair Trading Act 1999;



discharge in relation to a contract, means discharge of the contract so far as
it is executory, otherwise than by frustration;

enforcement expense means-

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

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

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

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

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

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

exempt credit provider means a credit provider referred to in section 38(1) of
the Credit (Administration) Act 1984 or a person who pursuant to section 10 of
that Act is a person to whom Part IV of that Act does not apply;

farm machinery means-

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

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

farming undertaking includes-

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

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

   (c)  the cutting of timber for sale; and

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

goods includes-

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

   (b)  fixtures severable from the realty; and

   (c)  any present or future product of a farming undertaking, including any
        agricultural or horticultural produce, wool and the increase or
        progeny of stock- but does not include any goods of a class or
        description prescribed as being goods that are not goods within the
        meaning of this Act;

guarantee includes indemnity;

guarantor means a person who enters into a contract of guarantee in respect of
the performance by a debtor or mortgagor of his obligations under a credit
contract or mortgage or a person who enters into a contract of indemnity in
relation to a credit contract or mortgage but does not include a body
corporate or-

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

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

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

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

inspector means an inspector appointed under the Fair Trading Act 1999;



instalment does not include a deposit;

judgment includes order;

land has the same meaning as in the Property Law Act 1958; legal practitioner
means an Australian legal practitioner within the meaning of the
Legal Profession Act 2004;



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linked credit provider in relation to a supplier, means a credit provider-

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

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

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

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

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

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

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

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

   (d)  by deferring an obligation of that other person to pay an amount to
        him;

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

but does not include any contract of a class or description of contracts
prescribed as being loan contracts that are not loan contracts within the
meaning of this Act;

minimum credit charge in relation to a credit sale contract or a loan
contract, means the amount (if any) that, under the contract, is the minimum
amount payable to the credit provider by the debtor under the contract as the
credit charge;

mortgage means an instrument or transaction by or under which a security
interest is reserved, created or otherwise arises;

mortgagee in relation to a mortgage, means the person to whom the mortgage is
given;

mortgagor in relation to a mortgage, means the person by whom the mortgage is
given;

officer in relation to a body corporate, includes a person who is an officer
of the body corporate within the meaning of section 82A of the Corporations
Act;

pastoral finance company means a person carrying on a business of financing
pastoral pursuits or a business of stock or station agents to whom an order in
force under section 11 of the Banking Act 1959 of the Commonwealth as amended
and in force for the time being applies;

pre-determined credit charge in relation to a credit contract that specifies a
fixed amount as the whole or part of the credit charge (not being a minimum
credit charge), means that fixed amount;

prescribed means prescribed by this Act or the regulations;

property includes any thing in action and any interest in real or personal
property;

recognized State means a State or a Territory of the Commonwealth in respect
of which a declaration referred to in section 17 is in force;



record includes any book, account, document, paper or other source of
information compiled, recorded or stored in written form, or on microfilm, or
by electronic process, or in any other manner or by any other means;

registered credit provider means a credit provider who is registered under
Part 4 of the Consumer Credit (Victoria) Act 1995;





registration fees in relation to goods, means an amount payable under the law
of a State or Territory in connexion with the registration or use of the goods
including any amount payable for compulsory insurance;

regulated continuing credit contract means a continuing credit contract to
which Part III applies;

regulated contract means a regulated credit sale contract, regulated loan
contract or regulated continuing credit contract;

regulated credit sale contract means a credit sale contract to which Part III
applies;

regulated loan contract means a loan contract to which Part III applies;

regulated mortgage means a mortgage to which Part IV applies;

rescission in relation to a contract, means avoidance of the contract as from
its beginning;



security interest means an interest or power-

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

   (b)  created or otherwise arising in or over an interest in goods or other
        property under a mortgage, charge, lien, pledge, trust or power- by
        way of security for the payment of a debt or other pecuniary
        obligation or the performance of any other obligation but does not
        include an interest or a power reserved, created or otherwise arising
        under a lease of goods or under a hire-purchase agreement within the
        meaning of the Fair Trading Act 1999;

services includes the rights and benefits that are, or are to be, supplied
under-

   (a)  a contract for or involving-

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

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

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

   (c)  a contract under which one person grants or confers, or purports to
        grant or confer, a franchise or other right, benefit or privilege to
        one or more other persons in consideration of the investment by that
        other person, or those other persons, of money and the performance by
        him or them of work associated with that investment- whether the
        contract is express or implied and, if it is express, whether it is
        oral or in writing and whether the services are supplied to order or
        by making them available to potential users, but does not include-

   (d)  the provision of credit;

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

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

statutory rebate means-

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

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

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

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

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

supplier-

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

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

supply includes-

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

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

Territory means Territory of the Commonwealth;

this Act includes the regulations;

tied continuing credit contract means tied continuing credit contract within
the meaning of section 12(2);

tied loan contract means tied loan contract within the meaning of section
12(1);

trade-in allowance in relation to a contract of sale of goods or services,
means an amount by which the cash price or amount payable under the contract
is, or is to be, reduced in respect of an interest in property sold or
transferred or agreed to be sold or transferred to the supplier or another
person;

trade or tie agreement in relation to a credit provider and a supplier, means
an agreement or arrangement, whether formal or informal, relating to-

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

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

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

Tribunal means Victorian Civil and Administrative Tribunal established by the
Victorian Civil and Administrative Tribunal Act 1998.



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

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

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

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

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

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

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

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

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

(5) The provisions of this Act relating to mortgages shall be read and
construed as one with the Chattel Securities Act 1987.

(6) Where a provision of the Chattel Securities Act 1987 is inconsistent with
a provision of this Act, the provision of this Act shall prevail and the
provision of the Chattel Securities Act 1987 is, to the extent of the
inconsistency, void.