Western Australian Bills Western Australian Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
LEGISLATIVE ASSEMBLY
Consumer Credit (Western Australia)
Amendment Bill 1999
A Bill for
An Act to amend the Consumer Credit (Western Australia) Act 1996
to make changes to the Consumer Credit (Western Australia) Code.
The Parliament of Western Australia enacts as follows:
1. Short title
This Act may be cited as the Consumer Credit (Western
Australia) Amendment Act 1999.
page 1
58--1
Consumer Credit (Western Australia) Amendment Bill 1999
s. 2
2. Commencement
This Act comes into operation on a day fixed by proclamation.
3. Amendments effected by this Act
The amendments in this Act are to the Consumer Credit
5 (Western Australia) Code set out in the Appendix to the
Consumer Credit (Western Australia) Act 1996*.
[* Act No. 30 of 1996.
For subsequent amendments see 1998 Index to Legislation of
Western Australia, Table 1, p. 55.]
10 4. Section 4 amended
Section 4(2) is amended by inserting after "deferred." the
following sentence --
"
The "amount of credit" does not include --
15 (a) any interest charge under the contract; or
(b) any fee or charge --
(i) that is to be or may be debited after credit
is first provided under the contract; and
(ii) that is not payable in connection with
20 the making of the contract or the
making of a mortgage or guarantee
related to the contract.
".
5. Section 7 amended
25 Section 7(9) is amended as follows:
(a) by deleting "providing credit" and inserting instead --
"
providing credit to which this Code applies to
employees or former employees and to others
30 ";
page 2
Consumer Credit (Western Australia) Amendment Bill 1999
s. 6
(b) by deleting "credit provider provides credit" and
inserting instead --
"
credit provider provides credit to which this Code
5 applies
".
6. Section 11 amended
Section 11(3) is amended as follows:
(a) by deleting "(or any other person who obtained the
10 declaration" and inserting instead --
"
(or any other relevant person who obtained the
declaration
";
15 (b) by inserting after "household purposes." the following
sentence --
"
For the purposes of this subsection, a relevant person is
a person associated with the credit provider or a
20 finance broker (or a person acting for a finance broker)
through whom the credit was obtained.
";
(c) by deleting the note to subsection (3).
7. Section 12 amended
25 Section 12 is amended as follows:
(a) by inserting before "A credit" the subsection
designation "(1)";
page 3
Consumer Credit (Western Australia) Amendment Bill 1999
s. 7
(b) by deleting paragraph (b) and inserting the following
paragraph instead --
"
(b) a written contract document signed by the
5 credit provider and constituting an offer to the
debtor that is accepted by the debtor in
accordance with the terms of the offer.
";
(c) by inserting at the end the following subsections --
10 "
(2) An offer may be accepted by the debtor for the
purposes of subsection (1)(b) --
(a) by the debtor or a person authorized by the
debtor accessing or drawing down credit to
15 incur a liability; or
(b) by any other act of the debtor or of any such
authorized person that satisfies the conditions
of the offer and constitutes an acceptance of the
offer at law.
20 (3) The credit provider, or a person associated with the
credit provider, may not be authorized by the debtor for
the purposes of subsection (2). However, this
subsection does not prevent the debtor authorizing the
credit provider to debit the debtor's account.
25 (4) In the case of a contract document consisting of more
than one document, it is sufficient compliance with this
section if one of the documents is duly signed and the
other documents are referred to in the signed
document.
30 ".
page 4
Consumer Credit (Western Australia) Amendment Bill 1999
s. 8
8. Section 15 amended
Section 15 is amended as follows:
(a) by deleting section 15(B)(a) and inserting the following
paragraph instead --
5 "
(a) If the amount of credit to be provided is
ascertainable --
(i) that amount; and
(ii) the persons, bodies or agents (including
10 the credit provider) to whom it is to be
paid and the amounts payable to each of
them, but only if both the person, body
or agent and the amount are
ascertainable.
15 ";
(b) by deleting from section 15(E) "assumptions in" and
inserting instead --
" assumptions under ";
(c) by deleting section 15(F)(a)(ii) and "and" after it and
20 inserting the following subparagraphs instead --
"
(ii) if ascertainable, the number of the
repayments; and
(iia) if ascertainable, the total amount of the
25 repayments, but only if the contract
would, on the assumptions under
sections 158 and 160, be paid out within
7 years of the date on which credit is
first provided under the contract; and
30 ";
page 5
Consumer Credit (Western Australia) Amendment Bill 1999
s. 8
(d) by deleting from section 15(F)(b) "repayment." and
inserting instead --
"
repayment.
5 Paragraph (a) does not apply to minimum
repayments under a continuing credit contract.
";
(e) by deleting from section 15(N)(d) "premium." and
inserting instead --
10 "
premium.
In the case of consumer credit insurance that
includes a contract of general insurance within
the meaning of the Insurance Contracts
15 Act 1984 (Cwlth) --
(i) it is sufficient compliance with
paragraphs (a) and (b) if the contract
document contains the name of the
general insurer and the total amount
20 payable to the insurers (or, if it is not
ascertainable, how it is calculated); and
(ii) it is sufficient compliance with
paragraph (d) relating to the amount of
commission if the contract document
25 contains the total amount of commission
(expressed as a monetary amount or as a
proportion of the premium) to be paid
by the insurers.
".
page 6
Consumer Credit (Western Australia) Amendment Bill 1999
s. 9
9. Section 18 amended
Section 18(3) is repealed and the following subsection is
inserted instead --
"
5 (3) Subsection (2) does not apply if the credit provider has
previously given the debtor a copy of the contract
document to keep.
".
10. Section 19 amended
10 Section 19(1) is amended by deleting "unless any credit has
been obtained or attempted to be obtained under the contract."
and inserting instead --
"
unless --
15 (a) any credit has been obtained under the contract;
or
(b) a card or other means of obtaining credit provided
to the debtor by the credit provider has been used
to acquire goods or services for which credit is to
20 be advanced under the contract.
".
11. Section 21 amended
Section 21(1)(a) is amended by deleting "fee" and inserting
instead --
25 " credit fee ".
12. Section 24 amended
Section 24(3) is repealed and the following subsection is
inserted instead --
"
30 (3) Despite subsection (2), a credit provider is not required
to credit a payment under a credit contract before it is
page 7
Consumer Credit (Western Australia) Amendment Bill 1999
s. 13
payable under the contract if the contract prohibits
early payment and --
(a) the credit provider informs the debtor, as soon
as practicable after the credit provider becomes
5 aware of the payment, that it will not be
credited to the debtor (or that any credit will be
reversed) until it becomes payable under the
contract, and the debtor elects to leave the
payment with the credit provider; or
10 (b) the credit provider informs the debtor, before
accepting the payment, that it will not be
credited to the debtor until it becomes payable
under the contract; or
(c) the credit provider refunds the payment to the
15 debtor.
".
13. Section 25 amended
Section 25(2) is amended as follows:
(a) by inserting after "payments" --
20 " or any other purposes ";
(b) by inserting after "ends." the following sentence --
"
Different times of the day may be specified for
different purposes.
25 ".
14. Section 27 amended
After section 27(3) the following subsection is inserted --
"
(4) This section does not apply to the debit of an interest
30 charge under a credit contract before the end of the
period to which the charge applies if --
(a) the charge is debited on the last day of the
period; and
page 8
Consumer Credit (Western Australia) Amendment Bill 1999
s. 15
(b) the amount debited is not treated by the credit
provider as part of the unpaid daily balance for
that day for the purpose of calculating interest
charges under the contract.
5 ".
15. Section 30 amended
Section 30 is amended as follows:
(a) in subsection (1) by deleting "in respect of an amount
payable" and inserting instead --
10 "
for an amount payable or to reimburse an amount paid
";
(b) in subsection (1) by inserting after "actual amount
payable" --
15 " or paid ";
(c) by repealing subsection (4).
16. Section 31 amended
Section 31 is amended as follows:
(a) in subsection (3)(b) by inserting after "statement
20 period" --
"
(other than debits for government charges, or
duties, on receipts or withdrawals)
";
25 (b) after subsection (3)(e) by deleting the full stop and
inserting --
"
; or
(f) the debtor has died or is insolvent and the
30 debtor's personal representative or trustee in
page 9
Consumer Credit (Western Australia) Amendment Bill 1999
s. 17
bankruptcy has not requested a statement of
account.
";
(c) after subsection (3) by inserting the following
5 subsection --
"
(4) A separate statement of account may, but need not, be
given in respect of each or any number of the credit
facilities provided under a credit contract.
10 ".
17. Section 32 amended
Section 32(I) is amended by deleting "(if not previously
disclosed in accordance with this Code)." and inserting
instead --
15 "
(if not previously disclosed in accordance with this
Code).
In the case of consumer credit insurance that includes a
contract of general insurance within the meaning of the
20 Insurance Contracts Act 1984 (Cwlth) --
(i) it is sufficient compliance with
paragraph (a) if the statement of account
contains the name of the general insurer,
the total amount payable to the insurers
25 and the kind of insurance; and
(ii) it is sufficient compliance with
paragraph (b) if the statement of account
contains the total amount of commission
(expressed as a monetary amount or as a
30 proportion of the premium) to be paid
by the insurers.
".
page 10
Consumer Credit (Western Australia) Amendment Bill 1999
s. 18
18. Section 34 amended
Section 34 is amended as follows:
(a) in subsection (1)(c) by inserting after "amounts" --
" currently ";
5 (b) in subsection (1)(d) by inserting after "amount" --
" currently ";
(c) after subsection (3) by inserting the following
subsection --
"
10 (3A) In the case of joint debtors or guarantors, the statement
under this section need only be given to a debtor or
guarantor who requests the statement and not, despite
section 171, to each joint debtor or guarantor.
".
15 19. Section 36 amended
Section 36 is amended as follows:
(a) in subsection (4) by deleting "In any other case" and
inserting instead --
"
20 In the case of any other credit contract for which a
statement of account is given
";
(b) after subsection (4) by inserting the following
subsection --
25 "
(4A) In the case of a credit contract in respect of which a
statement of account need not be and is not given for
the period to which the disputed liability relates, the
notice of dispute must be given to the credit provider
30 not later than 3 months after the end of the contract.
".
page 11
Consumer Credit (Western Australia) Amendment Bill 1999
s. 20
20. Section 36A inserted
After section 36 the following section is inserted in Division 5
of Part 2 --
"
5 36A. Dating and adjustment of debits and credits in
accounts
(1) For the purposes of this Code and the credit contract, a
debit or a credit made by a credit provider to a debtor's
account is taken to have been made, and has effect, on
10 the date assigned to the debit or credit, not on the date
on which it is processed.
(2) A credit provider may subsequently adjust debits or
credits to a debtor's account, and the account balances,
so as to accurately reflect the legal obligations of the
15 debtor and the credit provider.
(3) However, subsections (1) and (2) do not permit a debit
or a credit to be assigned a date other than the date on
which it is processed, or the subsequent adjustment of a
debit or a credit or account balance, if --
20 (a) the assignment or adjustment is not consistent
with the credit contract; or
(b) the adjustment results in an interest charge that
is more than the maximum amount permitted
by the Code, as calculated on the basis of debits
25 or credits to a debtor's account consistent with
the credit contract; or
(c) the assignment or adjustment results in a
contravention of section 24; or
(d) the assignment of the date on which an interest
30 charge is taken to be debited results in a debit
being taken to be done before a time permitted
under this Code.
page 12
Consumer Credit (Western Australia) Amendment Bill 1999
s. 21
(4) An adjustment by a credit provider under
subsection (2) does not affect any liability of a credit
provider under Part 6.
".
5 21. Section 37 amended
Section 37 is amended as follows:
(a) by inserting before "The" the subsection
designation "(1)";
(b) by inserting after "or a deferral or waiver of an amount
10 under an existing credit contract" --
"
or a postponement relating to an existing credit
contract
";
15 (c) by deleting "or waiver" in the second place where it
occurs and inserting instead --
" , waiver or postponement ";
(d) by deleting "or the contract" and inserting instead --
" or the existing credit contract ";
20 (e) by inserting at the end the following subsection --
"
(2) In this section --
"existing credit contract" includes existing consumer
lease.
25 ".
22. Section 39 amended
Section 39 is amended as follows:
(a) by inserting before "If" the subsection
designation "(1)";
page 13
Consumer Credit (Western Australia) Amendment Bill 1999
s. 23
(b) by inserting at the end the following subsection --
"
(2) This section does not apply if the credit provider has
previously given the mortgagor a copy of the mortgage
5 document to keep.
".
23. Section 44 amended
After section 44(4) the following subsection is inserted --
"
10 (5) In this section, a reference to a credit contract or
guarantee includes a reference to a proposed credit
contract or proposed guarantee.
".
24. Section 51 amended
15 Section 51(1) is amended by deleting "Before the obligations
under a credit contract are secured by a guarantee" and inserting
instead --
" Before a guarantee is signed by the guarantor ".
25. Section 52 replaced
20 Section 52 is repealed and the following section is inserted
instead --
"
52. Copies of documents for guarantor
(1) A credit provider must, not later than 14 days after a
25 guarantee is signed and given to the credit provider,
give the guarantor --
(a) a copy of the guarantee signed by the
guarantor; and
page 14
Consumer Credit (Western Australia) Amendment Bill 1999
s. 26
(b) a copy of the credit contract or proposed credit
contract.
(2) Subsection (1)(a) does not apply if the credit provider
has previously given the guarantor a copy of the credit
5 contract or proposed credit contract to keep.
".
26. Section 53 amended
Section 53(1)(b) is amended by deleting "or pre-contractual
statement".
10 27. Section 54 amended
Section 54(3) is amended by deleting "does" and inserting
instead --
" and section 51 (Disclosure) do ".
28. Section 55 amended
15 Section 55(2) is amended by deleting "or any other act or
omission by, or circumstance affecting, the debtor".
29. Section 56 amended
Section 56(2) is repealed and the following subsection is
inserted instead --
20 "
(2) This section does not apply to an increase in liabilities
resulting from --
(a) a change of a kind referred to in
section 58(2)(a) or (b); or
25 (b) a change of which notice is required to be given
under Division 1 of Part 4 (not being a change
referred to in section 62(3) or 63); or
(c) a change under section 68(2) or a postponement
under section 88(2); or
page 15
Consumer Credit (Western Australia) Amendment Bill 1999
s. 30
(d) a deferral or waiver of a debtor's obligations
for a period not exceeding 90 days.
".
30. Section 59 amended
5 Section 59(4) is amended by deleting "30 days" and inserting
instead --
" 20 days ".
31. Section 60 amended
Section 60 is amended as follows:
10 (a) in subsection (1) by deleting "30 days" and inserting
instead --
" 20 days ";
(b) after subsection (2) by inserting the following
subsections --
15 "
(2A) If the amount or frequency or time for payment of
instalments or minimum repayments is not specified in
the credit contract but is determined by a method of
calculation so specified, this section requires the credit
20 provider to give particulars only of any change in that
method of calculation.
(2B) This section does not apply to a change that occurs
while the credit contract does not require any
repayment of the amount of credit provided.
25 ".
32. Section 61 amended
Section 61(1) is amended by deleting "30 days" and inserting
instead --
" 20 days ".
page 16
Consumer Credit (Western Australia) Amendment Bill 1999
s. 33
33. Section 63 amended
Section 63 is amended as follows:
(a) in subsection (1) by deleting "30 days" and inserting
instead --
5 " 20 days ";
(b) in subsection (3) by inserting after "section 59, 60, 61 or
62" --
"
(or which would be required to be so given but for an
10 exception provided in any such section)
".
34. Section 63A inserted
After section 63 the following section is inserted --
"
15 63A. Particulars of matters as changed only required to
be given under this Division in certain cases
The credit provider may, under section 59, 60, 61 or
63, give a person particulars only of a matter as
changed instead of particulars of the change, but only if
20 the credit provider --
(a) makes it clear to the person that the matter has
changed; or
(b) issues to the person a new set of terms and
conditions relating to the credit contract,
25 mortgage or guarantee.
".
page 17
Consumer Credit (Western Australia) Amendment Bill 1999
s. 35
35. Section 65 amended
Section 65 is amended as follows:
(a) in subsection (1) by deleting "within 30 days" and
inserting instead --
5 " not later than 30 days ";
(b) in subsection (3) by inserting after "credit contract" --
" (other than a continuing credit contract) ";
(c) by inserting after subsection (4) the following
subsection --
10 "
(5) The credit provider may, under subsection (1), give a
person particulars only of a matter as changed instead
of particulars of the change, but only if the credit
provider --
15 (a) makes it clear to the person that the matter has
changed; or
(b) issues to the person a new set of terms and
conditions relating to the credit contract,
mortgage or guarantee.
20 ".
36. Section 67 amended
Section 67 is amended as follows:
(a) by inserting before "A credit" the subsection
designation "(1)";
25 (b) by deleting "within 30 days" and inserting instead --
" not later than 30 days ";
(c) by inserting at the end the following subsection --
"
(2) The credit provider may, under subsection (1), give a
30 person particulars only of a matter as changed instead
page 18
Consumer Credit (Western Australia) Amendment Bill 1999
s. 37
of particulars of the change, but only if the credit
provider --
(a) makes it clear to the person that the matter has
changed; or
5 (b) issues to the person a new set of terms and
conditions relating to the credit contract.
".
37. Section 73 amended
Section 73 is amended as follows:
10 (a) in subsection (1) by deleting "the credit provider writes
off the relevant debt, whichever occurs first" and
inserting instead --
" otherwise comes to an end ";
(b) in subsection (2) by deleting "the credit provider writes
15 off the relevant debt, whichever occurs first" and
inserting instead --
"
the credit contract is rescinded or discharged or
otherwise comes to an end
20 ".
38. Section 76 amended
Section 76 is amended by inserting after the penalty at the foot
of subsection (3) the following subsection --
"
25 (4) In the case of joint debtors or guarantors, the statement
under this section need only be given to a debtor or
guarantor who requests the statement and not, despite
section 171, to each joint debtor or guarantor.
".
page 19
Consumer Credit (Western Australia) Amendment Bill 1999
s. 39
39. Section 78 amended
Section 78 is amended as follows:
(a) in subsection (7) by deleting "total amount payable
under the contract" and inserting instead --
5 " amount required to pay out the contract ";
(b) in subsection 8(a) by inserting after "contract" in the
second place where it occurs --
" or guarantee ";
(c) after subsection (8)(d) by deleting the full stop and
10 inserting instead --
"
;
(e) the expenses reasonably incurred by the credit
provider in connection with the possession and
15 sale of the mortgaged goods.
";
(d) in subsection (9) by deleting "net amount due under the
credit contract" and inserting instead --
"
20 amount required to pay out the credit contract or the
amount due under the guarantee
".
40. Section 80 amended
Section 80 is amended as follows:
25 (a) in subsection (3) by deleting "during the period of
30 days" and inserting instead --
"
during the period specified in the default notice for
remedying the original default
30 ";
page 20
Consumer Credit (Western Australia) Amendment Bill 1999
s. 41
(b) by inserting after subsection (3) the following
subsection --
"
(3A) Combined notices. Default notices that may be given
5 under subsections (1) and (2) may be combined in one
document if given to a person who is both a debtor and
a mortgagor.
";
(c) in subsection (4)(c) by deleting "to do so" and inserting
10 instead --
" to begin the enforcement proceedings ";
(d) in subsection (6) by inserting after "property" --
" or other ";
(e) in subsection (6) by deleting the second sentence and
15 inserting instead --
"
Nothing in this section prevents a notice to a defaulting
mortgagor under other legislation being issued at the
same time, or in the same document, as the default
20 notice under this section.
".
41. Section 86 amended
Section 86(2) is amended by deleting "under" and inserting
instead --
25 " in respect of ".
42. Section 87 amended
Section 87 is amended as follows:
(a) in subsection (1) by deleting ", written notice of the
conditions of postponement is given to the debtor,
30 mortgagor or guarantor";
page 21
Consumer Credit (Western Australia) Amendment Bill 1999
s. 43
(b) by inserting after subsection (2) the following
subsections --
"
(3) A credit provider must give written notice of the
5 conditions of a postponement referred to in
subsection (1) not later than 30 days after agreement is
reached on the postponement. The notice must set out
the consequences under subsection (5) if the conditions
of the postponement are not complied with.
10 Penalty: $10 000.
(4) A credit provider that is required to give notice under
section 65 in relation to a postponement is not required
to comply with subsection (3).
(5) If any of the conditions of a postponement are not
15 complied with, a credit provider is not required to give
a further default notice under this Code to the debtor,
mortgagor or guarantor with whom the postponement
was negotiated before proceeding with enforcement
proceedings.
20 ".
43. Section 96 amended
Section 96 is amended as follows:
(a) in subsection (2) by deleting "total amount payable
under the contract" and inserting instead --
25 " amount required to pay out the contract ";
(b) in subsection (3) by deleting "net amount due under the
credit contract" and inserting instead --
"
amount required to pay out the credit contract or the
30 amount due under the guarantee
".
page 22
Consumer Credit (Western Australia) Amendment Bill 1999
s. 44
44. Section 98 amended
Section 98(1) is amended by inserting after "practicable" --
"
, or at a time agreed between the credit provider and
5 the mortgagor,
".
45. Section 99 amended
Section 99 is amended as follows:
(a) in subsection (1) by inserting after "the credit provider."
10 the following sentence --
"
Enforcement expenses of a credit provider extend to
those reasonably incurred by the use of the staff and
the facilities of the credit provider.
15 ";
(b) by repealing subsection (3) and inserting the following
subsection instead --
"
(3) If there is a dispute between the credit provider and the
20 debtor, mortgagor or guarantor about the amount of
enforcement expenses that may be recovered by the
credit provider, the Court may, on application by any
of the parties to the dispute, determine the amount of
that liability.
25 ".
46. Section 100 amended
Section 100 is amended as follows:
(a) by deleting paragraph (1)(e) and inserting instead --
"
30 (e) section 15(G)(a) and (b) -- but only in respect
of retained credit fees and charges;
";
page 23
Consumer Credit (Western Australia) Amendment Bill 1999
s. 47
(b) by deleting paragraph (2)(d) and inserting instead --
"
(d) section 15(G)(a) and (b) -- but only in respect
of retained credit fees and charges;
5 ".
47. Section 117 amended
Section 117(3) is amended by inserting after "credit contract" in
the first place where it occurs --
" (other than a continuing credit contract) ".
10 48. Section 119 amended
Section 119(1) is amended by inserting after "in relation to
the" --
" sale ".
49. Section 124 amended
15 Section 124 is amended by inserting after subsection (3) the
following subsection --
"
(4) This section does not apply to a sale contract for the
supply of rights in relation to, and interests in, real
20 property unless the supplier was aware that the purchaser
intended to obtain the credit from the supplier or from a
linked credit provider of the supplier.
".
50. Section 125 amended
25 Section 125 is amended by inserting after subsection (7) the
following subsection --
"
(8) This section applies --
(a) to the exercise by a purchaser of a right under
30 this Code or any other law to rescind or
discharge a sale contract; and
page 24
Consumer Credit (Western Australia) Amendment Bill 1999
s. 51
(b) to a tied loan contract or a tied continuing credit
contract, but only if the sale contract was the
principal purpose for which the credit was
provided.
5 ".
51. Section 132 replaced
Section 132 is repealed and the following section is inserted
instead --
"
10 132. Interpretation and application
(1) For the purposes of this Code, a "credit-related
insurance contract" is a contract for insurance of any
of the following kinds in connection with a credit
contract --
15 (a) insurance over mortgaged property;
(b) consumer credit insurance;
(c) insurance of a nature prescribed for the
purposes of this section by the regulations.
(2) This Code does not apply to insurance over mortgaged
20 property that --
(a) is insurance for an extended period of warranty
for goods; or
(b) is insurance over property that is not mortgaged
to secure obligations under the credit contract.
25 (3) This Code does not apply to consumer credit insurance
in connection with a credit contract unless the contract
for consumer credit insurance insures the obligations of
the debtor under the credit contract.
".
page 25
Consumer Credit (Western Australia) Amendment Bill 1999
s. 52
52. Section 134 amended
Section 134(1) is amended by deleting the second sentence.
53. Section 138 amended
Section 138 is amended as follows:
5 (a) in subsection (4) by inserting after "section" --
"
, including the rebate payable where this section does
not apply to the whole of a credit-related insurance
contract
10 ";
(b) after subsection (5) by inserting the following
subsection --
"
(6) This section does not apply to a credit-related
15 insurance contract, to the extent that it provides a
benefit in the event of the death of the debtor, if a
credit contract is terminated on the death of a debtor.
However, it does apply to the credit-related insurance
contract to the extent that it provides other benefits.
20 ".
54. Section 140 amended
Section 140(3) and (4) are repealed and the following
subsections are inserted instead --
"
25 (3) Annual percentage rate. The advertisement need not
contain an annual percentage rate, but must do so if the
advertisement states the amount of any repayment. If
the advertisement contains an annual percentage rate
and credit fees and charges are payable, the
30 advertisement must --
(a) state that fees and charges are payable; or
page 26
Consumer Credit (Western Australia) Amendment Bill 1999
s. 55
(b) specify the amount of the fees and charges
payable; or
(c) specify the amount of some of the fees and
charges payable and state that other fees and
5 charges are payable.
(4) Comparison rate. The advertisement may contain the
comparison rate calculated as prescribed by the
regulations and, if it does so, must be accompanied by
the warnings set out in the regulations.
10 ".
55. Section 143 amended
Section 143 is amended by deleting "the annual percentage rate
or rates" and inserting instead --
" expressed as a nominal percentage rate per annum ".
15 56. Section 146 amended
Section 146(1) is amended by deleting "the person." and
inserting instead --
" a person who resides there. ".
57. Section 152 amended
20 Section 152(1)(c) is amended by inserting after "government
charge" --
" (other than on receipts or withdrawals) ".
58. Section 153 amended
Section 153 is amended as follows:
25 (a) by inserting before "A lessor" the subsection
designation "(1)";
page 27
Consumer Credit (Western Australia) Amendment Bill 1999
s. 59
(b) by inserting after the penalty the following
subsections --
"
(2) Subsection (1) does not apply if the lessor has
5 previously given the lessee a copy of the consumer
lease to keep.
(3) Section 171 applies to this section as if references in
that section to the credit provider were references to the
lessor or a lease broker and as if references in that
10 section to the debtor were references to the lessee.
".
59. Section 166 amended
Section 166(3) is amended by inserting after "debtor" --
"
15 , or would continue to do so if the debtor complied
with the credit contract
".
60. Section 169A inserted
After section 169 the following section is inserted --
20 "
169A. Indemnities
(1) An indemnity for any liability under this Code is not
void, and cannot be declared void, on the grounds of
public policy, despite any rule of law to the contrary.
25 (2) The liabilities to which this section applies include the
following --
(a) a liability for any criminal or civil penalty
incurred by any person under this Code;
(b) a payment in settlement of a liability or alleged
30 liability under this Code;
page 28
Consumer Credit (Western Australia) Amendment Bill 1999
s. 61
(c) a liability under another indemnity for any
liability under this Code.
(3) This section is subject to section 169(2).
(4) This section does not derogate from any other rights
5 and remedies that exist apart from this section.
(5) This section extends to any indemnity obtained before
the commencement of this section.
".
61. Section 171 replaced
10 Section 171 is repealed and the following section is inserted
instead --
"
171. Giving notice or other document
(1) Application. This section applies as follows --
15 (a) This section applies (subject to this subsection)
to notices or other documents that are required
to be given for the purposes of this Code.
(b) This subsection and subsections (3) and (7)
apply, but the remainder of this section does not
20 apply, to pre-contractual notices and statements
and notices given under section 14.
(c) Subsections (4), (5) and (6) do not apply to
default notices.
(d) This section applies despite the provisions of
25 any other section of this Code (except
sections 34(3A) and 76(4)) to the contrary.
Note: Examples of notices or other documents to which this section applies are those
required to be given under sections 18, 31, 34, 39, 51, 52 and 76.
page 29
Consumer Credit (Western Australia) Amendment Bill 1999
s. 61
(2) Unsuccessful attempts by credit provider. A credit
provider is relieved from the obligation to give a notice
or other document to a person if --
(a) the credit provider has previously made a
5 reasonable (but unsuccessful) attempt to give a
notice or other document in accordance with
this Code by leaving it at, or by sending it by
post, telex, facsimile or similar facility to the
appropriate address of the person under
10 section 172; and
(b) the credit provider has reasonable grounds for
believing that the person can no longer be
contacted at that address.
(3) Joint debtors etc. -- general obligation. In the case
15 of joint debtors, mortgagors or guarantors, a notice or
other document must be given to each debtor,
mortgagor or guarantor, except as provided by this
section.
(4) Joint debtors etc. -- nomination of one of them.
20 A notice or other document may be given to any 2 or
more joint debtors, mortgagors or guarantors by being
given to one of the joint debtors, mortgagors or
guarantors nominated by them to receive the notice or
other document on their behalf. The notice or other
25 document need not be addressed to all of them.
(5) Joint debtors etc. -- same address. A single copy of
a notice or other document may be given to any 2 or
more joint debtors, mortgagors or guarantors at the
same address if each of them has consented to a single
30 copy being given and the notice or other copy is
addressed jointly to them. The procedure prescribed by
this subsection is an alternative to the procedure
prescribed by subsection (4).
page 30
Consumer Credit (Western Australia) Amendment Bill 1999
s. 62
(6) Nominated persons generally. A notice or other
document may be given to a person by being given to
another person nominated by the person to receive the
notice or other document on his or her behalf.
5 However --
(a) a debtor, mortgagor or guarantor cannot
nominate the credit provider or a person
associated with the credit provider; and
(b) a mortgagor cannot nominate the debtor if the
10 mortgage is given by a guarantor; and
(c) a guarantor cannot nominate the debtor.
(7) Legal practitioners. A notice or other document may
be given to a person by being given to a legal
practitioner acting for the person in the matter
15 concerned.
(8) Withdrawal of nomination or consent. A nomination
or consent under this section ceases to have effect if it
is withdrawn by the person who made or gave it.
(9) Form of nomination or consent. A nomination or
20 consent under this section (or the withdrawal of any
such nomination or consent) must be in the form
required by the regulations.
".
62. Section 172 amended
25 Section 172 is amended as follows:
(a) in subsection (1)(a)(ii) by deleting "the address of the
place of residence or business of the person last known
to the person giving the notice or other document" and
inserting instead --
30 " an appropriate address of the person ";
(b) by renumbering subsection (2) as subsection (4);
page 31
Consumer Credit (Western Australia) Amendment Bill 1999
s. 63
(c) by renumbering subsection (3) as subsection (5);
(d) by inserting after subsection (1) the following
subsections --
"
5 (2) The appropriate address of a debtor, mortgagor,
guarantor or consumer lessee for the purposes of
subsection (1) is --
(a) an address nominated in writing by that person to
the person giving the notice or other document; or
10 (b) if there is no such nomination, the address of the
place of residence of that person last known to the
person giving the notice or other document.
(3) An appropriate address of any other person for the
purposes of subsection (1) is --
15 (a) an address nominated in writing by that person
to the person giving the notice or other
document; or
(b) the address of the place of residence or business
of that person last known to the person giving
20 the notice or other document.
".
63. Section 176 amended
Section 176 is amended as follows:
(a) in subsection (2) by inserting after "person's behalf." the
25 following sentence --
"
This subsection does not prevent a credit provider from
authorizing a person associated with the credit provider
to enter into a credit contract on behalf of the credit
30 provider.
";
(b) by repealing subsection (4).
page 32
Consumer Credit (Western Australia) Amendment Bill 1999
s. 64
64. Section 182A inserted
After section 182 the following section is inserted --
"
182A. Offences by officers, agents or employees
5 An officer, agent or employee of a credit provider or
other person may be prosecuted for an offence against
this Code or the regulations (if liable for the offence)
whether or not proceedings have been taken against the
credit provider or other person.
10 ".
65. Schedule 1 amended
(1) Schedule 1 is amended by inserting before "In this Code" the
clause designation "1.".
(2) Schedule 1 is amended by deleting the definitions of "ordinarily
15 resident" and "predominant".
(3) Schedule 1 is amended after the definition of "regulation" by
inserting the following definition --
"
"retained fees and credit charges" means credit fees and
20 charges retained by the credit provider, other than
credit fees and charges passed on to (or retained in
reimbursement of an amount paid to) --
(a) a third party that is not a related body corporate
(for the purposes of the Corporations Law) of the
25 credit provider; or
(b) a financial institution that is such a related body
corporate in respect of the provision of banking
services that are provided to the credit provider
by the financial institution on the same terms as
30 those services are ordinarily provided to
customers who are not related to or associated
with the financial institution.
";
page 33
Consumer Credit (Western Australia) Amendment Bill 1999
s. 65
(4) Schedule 1 is amended in the definition of "credit fees and
charges" as follows:
(a) by deleting paragraph (b) and inserting the following
paragraph instead --
5 "
(b) any fees or charges that are payable to or by a
credit provider in connection with a credit
contract in connection with which both credit
and debit facilities are available if the fees or
10 charges would be payable even if credit facilities
were not available (not being annual fees or
charges in connection with continuing credit
contracts under which credit is ordinarily
obtained only by the use of a card); or
15 ";
(b) in paragraph (c) by deleting "and duties" and inserting
instead --
" or duties ";
(c) after paragraph (c) by inserting the following word and
20 paragraph --
"
or
(d) enforcement expenses;
".
25 (5) At the end of Schedule 1 the following clause is inserted --
"
2. For the purposes of this Code, a person is "associated" with
a credit provider if --
(a) the person and the credit provider are related bodies
30 corporate for the purposes of the Corporations Law;
or
(b) the person is a supplier in respect of whom the
credit provider is a linked credit provider; or
page 34
Consumer Credit (Western Australia) Amendment Bill 1999
s. 65
(c) the person is an officer, agent or employee of the
credit provider, or of any such related body
corporate or supplier, acting in that capacity.
".
page 35
[Index] [Search] [Download] [Related Items] [Help]