Victorian Consolidated Legislation

Credit Act 1984 - SECT 85

Tribunal may reduce credit provider's loss

85. Tribunal may reduce credit provider's loss



(1) Where, by reason of a contravention of or a failure to comply with this
Act or the Credit (Administration) Act 1984 by a credit provider, a debtor is
not liable to pay to the credit provider under a regulated contract an amount
that, but for the contravention or failure, he would have been liable to pay
under the contract, the credit provider may apply to the Tribunal for an order
increasing the liability of the debtor to the credit provider.

(2) Where an application is made to the Tribunal under this section in
relation to a regulated contract, the Tribunal, after consideration of the
relevant circumstances, including the conduct of the credit provider and the
debtor and the loss or damage (if any) suffered by the debtor-

   (a)  in the case of a credit sale contract or a loan contract and a
        contravention of or failure to comply with the
        Credit (Administration) Act 1984-

   (i)  may, where it is satisfied that the contravention or failure has
        occurred and ought reasonably to be excused-determine that the debtor
        is liable to pay the amount financed under the contract and the whole
        or such part of the credit charge as it determines; or

   (ii) may, where it is satisfied that the contravention or failure has
        occurred but ought not to be excused-determine not to increase the
        liability of the debtor or determine that the debtor is liable to pay
        the whole or such part as it determines of the amount financed under
        the contract and the whole or such part of the credit charge as it
        determines;

   (b)  in the case of a regulated continuing credit contract and a
        contravention of or a failure to comply with the
        Credit (Administration) Act 1984-

   (i)  may, where it is satisfied that the contravention or failure has
        occurred and ought reasonably to be excused-determine that the debtor
        is liable to pay the whole or such part of the amount owing or the
        credit charge as it determines; or

   (ii) may, where it is satisfied that the contravention or failure has
        occurred but ought not to be excused-determine not to increase the
        liability of the debtor or determine that the debtor is liable to pay
        the whole or such part of the amount owing or the credit charge as it
        determines; and

   (c)  in the case of a regulated contract and a contravention of or failure
        to comply with this Act by a credit provider may, where it is
        satisfied that the contravention or failure has occurred-determine not
        to increase the liability of the debtor or determine that the debtor
        is liable to pay the whole of such part of the credit charge under the
        contract as it determines.

(3) Where, under this section the Tribunal determines the amount that a debtor
is liable to pay after a contravention of or a failure to comply with this Act
or the Credit (Administration) Act 1984 by a credit provider, the Tribunal
shall ensure that, in determining that amount, the amount that the debtor
would have been liable to pay but for the contravention or failure is reduced
by an amount that is not less than the amount of loss or damage (if any)
suffered by the debtor as a result of the contravention or failure.

(4) Where, under this section, the Tribunal determines the liability of the
debtor under a regulated contract in consequence of a contravention of or a
failure to comply with this Act or the Credit (Administration) Act 1984 by the
credit provider, the liability of the debtor to the credit provider under the
contract is the liability determined by the Tribunal instead of the liability
that, but for the determination, the debtor would have had to the credit
provider under the contract.

(4A) The Tribunal may, when making a determination under this section of the
amount that a debtor is liable to pay, give the parties to the proceedings
such directions as the Tribunal considers appropriate relating to the payment
of the amount owed by the debtor or by the credit provider as a result of the
determination.

(4B) A determination made by the Tribunal under this section of the liability
of a debtor has effect only in respect of the contravention or failure to
which the determination relates.

(5) Nothing in this section affects the liability of a person to be convicted
of an offence under this Act or the Credit (Administration) Act 1984.

(6) The provisions of this section are subject to the provisions of section
86A and, in particular, subsection (3) of this section does not apply to the
determination of an amount under subsection (1) of that section.