Consumer Credit (Northern Territory) Act (NT)

Case

NORTHERN TERRITORY OF AUSTRALIA

CONSUMER CREDIT (NORTHERN TERRITORY) ACT 1995

As in force at 1 November 1996

TABLE OF PROVISIONS

Section

PART 1 – PRELIMINARY

Division 1 – Introductory

1.          Short title

2.          Commencement

Division 2 – Interpretation

3.          Definitions

PART 2 – CONSUMER CREDIT (NORTHERN TERRITORY) CODE AND CONSUMER CREDIT (NORTHERN TERRITORY) REGULATIONS

4.          Application in the Territory of the Consumer Credit Code

5.Application of uniform regulations under the Consumer Credit Code

6.Interpretation of expressions in the Consumer Credit (Northern Territory) Code and the Consumer Credit (Northern Territory) Regulations

PART 3 – CONFERRAL OF JUDICIAL AND ADMINISTRATIVE FUNCTIONS

7.          Conferral of judicial functions
               8.          Conferral of administrative functions

PART 4 – MISCELLANEOUS

9.          Special savings and transitional regulations for the Territory
             10.          Crown to be bound
             11.          Maximum annual percentage rate

CONSUMER CREDIT CODE

Notes

NORTHERN TERRITORY OF AUSTRALIA

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This reprint shows the Act as in force at 1 November 1996.  Any amendments that may come into operation after that date are not included.

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CONSUMER CREDIT (NORTHERN TERRITORY) ACT 1995

An Act to regulate the provision of consumer credit

PART 1 – PRELIMINARY

Division 1 – Introductory

  1. Short title

    This Act may be cited as the Consumer Credit (Northern Territory) Act 1995. (See back note 1)

  2. Commencement

    (1)      This Act shall come into operation on such day or days as are fixed by the Administrator by notice in the Gazette. (See back note 1)

    (2)      Different days may be fixed for the commencement of different provisions of the Consumer Credit Code set out in the Appendix to this Act.

Division 2 – Interpretation

  1. Definitions

    (1)      In this Act –

    "Consumer Credit (Queensland) Act" means the Consumer Credit (Queensland) Act 1994 of Queensland;

    "Consumer Credit (Northern Territory) Code" means the provisions applying because of section 4 of this Act;

    "Consumer Credit (Northern Territory) Regulations" means the provisions applying because of section 5 of this Act.

    (2)      In this Act, a reference to a Queensland Act includes a reference to an Act passed in substitution for the Act.

PART 2 – CONSUMER CREDIT (NORTHERN TERRITORY) CODE AND CONSUMER CREDIT (NORTHERN TERRITORY) REGULATIONS

  1. Application in the Territory of the Consumer Credit Code

    The Consumer Credit Code set out in the Appendix to the Consumer Credit (Queensland) Act, as in force for the time being –

    (a)applies as a law of the Territory; and

    (b)as so applying may be referred to as the Consumer Credit (Northern Territory) Code.

  2. Application of uniform regulations under the Consumer Credit Code

    (1) The regulations in force for the time being under Part 4 of the Consumer Credit (Queensland) Act –

    (a)apply as regulations in force for the purpose of the Consumer Credit (Northern Territory) Code; and

    (b)as so applying may be referred to as the Consumer Credit (Northern Territory) Regulations.

    (2)      Schedule 2 to the Consumer Credit (Northern Territory) Code applies in relation to any such regulation.

    (3)      To the extent to which a provision of any such regulation of a savings or transitional nature takes effect from a day earlier than the day of the regulation’s notification in the Government Gazette of Queensland, the provision does not operate in the Territory to the disadvantage of a person (other than the Territory or a Territory authority) by –

    (a)decreasing the person’s rights; or

    (b)imposing liabilities on the person.

  3. Interpretation of expressions in the Consumer Credit (Northern Territory) Code and the Consumer Credit (Northern Territory) Regulations

    (1)      In the Consumer Credit (Northern Territory) Code and the Consumer Credit (Northern Territory) Regulations –

    "Legislature of this jurisdiction" means the Legislative Assembly;

    "the Code" or "this Code" means the Consumer Credit (Northern Territory) Code;

    "the jurisdiction" or "this jurisdiction" means the Northern Territory.

    (2)      The Acts Interpretation Act 1954, and other Acts, of Queensland do not apply to –

    (a)the Consumer Credit Code set out in the Appendix to the Consumer Credit (Queensland) Act in its application as a law of the Territory; or

    (b)the regulations in force for the time being under Part 4 of the Consumer Credit (Queensland) Act in their application as regulations in force for the purposes of the Consumer Credit (Northern Territory) Code.

PART 3 – CONFERRAL OF JUDICIAL AND ADMINISTRATIVE FUNCTIONS

  1. Conferral of judicial functions

    The jurisdiction that is expressed to be exercisable by the Court under the Consumer Credit (Northern Territory) Code and the Consumer Credit (Northern Territory) Regulations in relation to any contract or other matter is exercisable by –

    (a)if proceedings in relation to the contract or other matter have been instituted in, or are before, a court – that court; or

    (b)in any other case – the court whose monetary jurisdiction is not exceeded by the total amount in dispute.

  2. Conferral of administrative functions

    The Commissioner of Consumer Affairs appointed under section 6 of the Consumer Affairs and Fair Trading Act has the functions of the Government Consumer Agency under the Consumer Credit (Northern Territory) Code and the Consumer Credit (Northern Territory) Regulations.

PART 4 – MISCELLANEOUS

  1. Special savings and transitional regulations for the Territory

    (1)      The Administrator may make regulations of a savings or transitional nature consequent on the enactment of this Act or of an Act of Queensland amending the Consumer Credit Code set out in the Appendix to the Consumer Credit (Queensland) Act.

    (2)      If such a regulation so provides, it has effect despite any provision of this Act, including the Consumer Credit (Northern Territory) Code.

    (3)      A provision of a regulation made under this section may, if the regulation so provides, take effect from the day of assent to the Act concerned or from a later day.

    (4)      To the extent to which a provision takes effect from a day earlier than the day of the regulation’s notification in the Gazette, the provision does not operate to the disadvantage of a person (other than the Territory or a Territory authority) by –

    (a)      decreasing the person’s rights; or

    (b)      imposing liabilities on the person.

  2. Crown to be bound

    This Act binds the Crown in right the Territory and, in so far as the legislatives power of the Legislative Assembly permits, the Crown in all its other capacities.

  3. Maximum annual percentage rate

    (1)      The Administrator may make regulations prescribing a maximum annual percentage rate for a credit contract or class of credit contract, within the meaning of the Consumer Credit (Northern Territory) Code.

    (2)      Division 2 of Part 2 of the Code (which limits the debtor’s monetary obligations) applies in relation to a prescribed maximum annual percentage rate as if that rate had been prescribed by the Code.

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NOTE

The text of the Consumer Credit Code set out in the Appendix to the Consumer Credit (Queensland) Act1994 is as follows:

CONSUMER CREDIT CODE

PART 1 – PRELIMINARY

  1. Short title

  2. Commencement

  3. Interpretation generally

  4. Meaning of “credit” and “amount of credit”

  5. Meaning of “credit contract”

  6. Provision of credit to which this Code applies

  7. Provision of credit to which this Code does not apply

  8. Mortgages to which this Code applies

  9. Guarantees to which this Code applies

  10. Goods leases with option to purchase to be regarded as sale by instalments

  11. Presumptions relating to application of Code

PART 2 – CREDIT CONTRACTS

Division 1 – Negotiating and making credit contracts

  1. Credit contract to be in form of written contract document

  2. Other forms of contract

  3. Precontractual disclosure

  4. Matters that must be in contract document

  5. Form and expression of contract document

  6. Alteration of contract document

  7. Copy of contract for debtor

  8. When debtor may terminate contract

  9. Offence for noncompliance

Division 2 – Debtor’s monetary obligations

  1. Prohibited monetary obligations

  2. Offences related to prohibited monetary obligations

  3. Loan to be in money or equivalent

  4. Early payments and crediting of payments

Division 3 – Interest charges

  1. Definitions relating to interest

  2. Limit on interest charges

  3. Early debit or payment of interest charges prohibited

  4. Default interest

Division 4 – Fees and charges

  1. Prohibited credit fees or charges

  2. Fees or charges passed on to other parties

Division 5 – Credit provider’s obligation to account

  1. Statements of account

  2. Information to be contained in statements of account

  3. Opening balance must not exceed closing balance of previous statement

  4. Statement of amount owing and other matters

  5. Court may order statement to be provided

  6. Disputed accounts

Division 6 – Certain transactions not to be treated as contracts

  1. Deferrals, waivers and changes under contracts

PART 3 – RELATED MORTGAGES AND GUARANTEES

Division 1 – Mortgages

  1. Form of mortgage

  2. Copy of mortgage for mortgagor

  3. Mortgages over all property void

  4. Restriction on mortgage of future property

  5. Mortgages and continuing credit contracts

  6. All accounts mortgages

  7. Third party mortgages prohibited

  8. Maximum amount which may be secured

  9. Prohibited securities

  10. Assignment or disposal of mortgaged property by mortgagor

  11. Conditions on consent to assignment or disposal of property subject to mortgage

  12. Offence for noncompliance

Division 2 – Guarantees

  1. Form of guarantee

  2. Disclosure

  3. Copies of documents for guarantor

  4. Guarantor may withdraw before credit is provided

  5. Extension of guarantee

  6. Limitation of guarantor’s liability

  7. Increase in guarantor’s liabilities

  8. Offence for noncompliance

PART 4 – CHANGES TO OBLIGATIONS UNDER CREDIT CONTRACTS, MORTGAGES AND GUARANTEES

Division 1 – Unilateral changes by credit provider

  1. Application of Division

  2. Interest rate changes

  3. Repayment changes

  4. Credit fees and charges changes

  5. Changes to credit limits etc. in continuing credit contracts

  6. Other unilateral changes by credit provider

  7. Prohibited increases in liabilities

Division 2 – Changes by agreement of parties

  1. Changes by agreement

Division 3 – Changes on grounds of hardship and unjust transactions

  1. Changes on grounds of hardship

  2. Notice of change

  3. Changes by Court

  4. Credit provider may apply for variation of change

  5. Court may reopen unjust transactions

  6. Orders on reopening of transactions

  7. Court may review unconscionable interest and other charges

  8. Time limit

  9. Joinder of parties

PART 5 – ENDING AND ENFORCING CREDIT CONTRACTS, MORTGAGES AND GUARANTEES

Division 1 – Ending of credit contract by debtor

  1. Debtor’s or guarantor’s right to pay out contract

  2. Statement of pay out figure

  3. Court may determine pay out figure if credit provider does not provide a pay out figure

  4. Surrender of mortgaged goods and goods subject to sale by instalments

  5. Compensation to debtor or mortgagor

Division 2 – Enforcement of credit contracts, mortgages and guarantees

  1. Requirements to be met before credit provider can enforce credit contract or mortgage against defaulting debtor or mortgagor

  2. Defaults may be remedied

  3. Requirements to be met before credit provider can enforce guarantee against guarantor

  4. Requirements to be met before credit provider can repossess mortgaged goods

  5. Acceleration clauses

  6. Requirements to be met before credit provider can enforce an acceleration clause

Division 3 – Postponement of enforcement proceedings

  1. Postponement of exercise of rights

  2. Effect of negotiated postponement

  3. Postponement by Court

  4. Credit provider may apply for variation of postponement order

Division 4 – Enforcement procedures for goods mortgaged

  1. Information as to location of mortgaged goods

  2. Entry to residential property to take possession of goods

  3. Court may order entry

  4. Order for possession

  5. Procedures to be followed by credit provider after taking possession of goods

  6. Mortgagor may nominate purchaser of goods taken by credit provider

  7. Sale of goods by credit provider

  8. Matters for which account can be debited after mortgagee sale of goods

  9. Compensation to mortgagor

Division 5 – Enforcement expenses

  1. Recovery of enforcement expenses

PART 6 – CIVIL PENALTIES FOR DEFAULTS OF CREDIT PROVIDERS

Division 1 – Civil penalties for breach of key disclosure and other requirements

  1. Key requirements

  2. Application for order relating to key requirements

  3. Civil penalty may be imposed for contravention of key requirement

  4. Penalty if application made by debtor or guarantor

  5. Payment of penalty to debtor or guarantor

  6. Penalty if application made by a credit provider or Government Consumer Agency

  7. Payment of penalty to fund

  8. Compensation for debtor or guarantor

  9. Recognition of civil penalty determined in other jurisdictions

  10. Other jurisdiction more appropriate

  11. General provisions relating to applications by credit providers or Government Consumer Agencies

  12. Government Consumer Agency may represent interests of debtors

  13. Directions pending Court’s decision

  14. Offences

Division 2 – Other civil penalties

  1. Civil effect of other contraventions

PART 7 – RELATED SALE CONTRACTS

Division 1 – Interpretation and application

  1. Meaning of sale contract

  2. Sale contracts to which this Part applies

  3. Linked credit providers and tied credit contracts

Division 2 – Liability of credit providers for suppliers’ misrepresentations

  1. Credit provider liable with respect to supplier’s misrepresentations etc. about tied credit contract

Division 3 – Liability of credit providers in relation to goods

  1. Right to damages under sale contract against both supplier and linked credit provider (cf. Trade Practices Act 1974 (Cwlth) s 73)

  2. Limits on debtor’s right of action against linked credit provider (cf. Trade Practices Act 1974 (Cwlth) s 73)

  3. Liability of supplier to linked credit provider (cf. Trade Practices Act 1974 (Cwlth) s 73)

  4. Interest may be awarded (cf. Trade Practices Act 1974 (Cwlth) s 73)

  5. Subrogation of credit provider (cf. Trade Practices Act 1974 (Cwlth) s 73)

Division 4 – Termination of related transactions

  1. Termination of sale contract which is conditional on obtaining credit

  2. Termination of (or recredit under) tied credit contract if sale contract terminated

  3. Termination of linked maintenance services contract if credit contract terminated

  4. Termination of contract under this Part to be in writing

  5. Powers of Court with respect to termination of contract under this Part

  6. Part 5 not to apply to termination of contract under this Part

Division 5 – Other provisions

  1. Requirement as to source of credit for goods or services

  2. Prohibition on payment for goods or services by postdated bills of exchange or notes which exceed cash price of goods or services

PART 8 – RELATED INSURANCE CONTRACTS

  1. Meaning of credit-related insurance contract

  2. Requirement to take out insurance or to insure with particular insurer or on particular terms

  3. Financing of insurance premiums over mortgaged property

  4. Commission for consumer credit insurance

  5. Supply of copy of credit-related insurance contract by insurer

  6. Rejection of debtor’s proposal for insurance

  7. Termination of consumer credit insurance contract if credit contract terminated

  8. Termination of insurance contract over mortgaged property if credit contract terminated

PART 9 – ADVERTISING AND RELATED CONDUCT

  1. Advertising

  2. Persons liable for advertisements

  3. Defence

  4. Interest rates which may be disclosed

  5. False or misleading representations

  6. Harassment

  7. Canvassing of credit at home

PART 10 – CONSUMER LEASES

Division 1 – Interpretation and application

  1. Meaning of consumer lease

  2. Consumer leases to which this Part applies

  3. Consumer leases to which this Part does not apply

  4. Presumptions relating to application of this Part

Division 2 – Form of and information to be included in consumer leases

  1. Form of consumer lease

  2. Disclosures in consumer leases

  3. Copy of lease etc. for lessee

  4. Further goods and deferrals or waivers under consumer leases

Division 3 – Other provisions applicable to consumer leases

  1. Application of certain Code provisions to consumer leases

  2. Notice of repossession

  3. Termination of lease

PART 11 – MISCELLANEOUS

Division 1 – Tolerances and assumptions

  1. Tolerances and assumptions relating to information

  2. Tolerances relating to contracts and other documents

  3. Regulations

Division 2 – Documentary provisions

  1. Form of notices

  2. Legibility and language

  3. Copies of contracts and other documents

  4. Signing of documents

Division 3 – General provisions

  1. Crown to be bound

  2. Assignment by credit provider

  3. Assignment by debtor, mortgagor or guarantor

  4. Appropriation of payments

  5. Contracting out

  6. Effect of noncompliance

  7. Giving notice or other document

  8. Manner of giving notice or other document

  9. Date of notice or other document

  10. Extensions of time

  11. Orders of Court

  12. Conduct of agents and related matters

  13. Reciprocal conferral of powers and jurisdiction

Division 4 – Provisions relating to offences

  1. Penalty at end of provision

  2. Penalty units

  3. Summary offences

  4. Double jeopardy

  5. Aiding and abetting, attempts

  6. Offences by corporations

  7. Limitations

SCHEDULE 1

PRINCIPAL DEFINITIONS

SCHEDULE 2

MISCELLANEOUS PROVISIONS RELATING TO INTERPRETATION

PART 1 – PRELIMINARY

  1. Displacement of Schedule by contrary intention

PART 2 – GENERAL

  1. Code to be construed not to exceed legislative power of Legislature

  2. Every section to be a substantive enactment

  3. Material that is, and is not, part of this Code

  4. References to particular Acts and to enactments

  5. References taken to be included in Act or Code citation etc.

  6. Interpretation best achieving Code’s purpose

  7. Use of extrinsic material in interpretation

  8. Effect of change of drafting practice and use of examples

  9. Use of examples

  10. Compliance with forms

PART 3 – TERMS AND REFERENCES

  1. Definitions

  2. Provisions relating to defined terms and gender and number

  3. Meaning of may and must etc.

  4. Words and expressions used in statutory instruments

  5. Effect of express references to bodies corporate and individuals

  6. Production of records kept in computers etc.

  7. References to this jurisdiction to be implied

  8. References to officers and holders of offices

  9. Reference to certain provisions of Code

  10. Reference to provisions of this Code or an Act is inclusive

PART 4 – FUNCTIONS AND POWERS

  1. Performance of statutory functions

  2. Power to make instrument or decision includes power to amend or repeal

  3. Matters for which statutory instruments may make provision

  4. Presumption of validity and power to make

  5. Appointments may be made by name or office

  6. Acting appointments

  7. Powers of appointment imply certain incidental powers

  8. Exercise of powers between enactment and commencement

PART 5 – DISTANCE, TIME AND AGE

  1. Matters relating to distance, time and age

PART 6 – EFFECT OF REPEAL, AMENDMENT OR EXPIRATION

  1. Time of Code ceasing to have effect

  2. Repealed Code provisions not revived

  3. Saving of operation of repealed Code provisions

  4. Continuance of repealed provisions

  5. Code and amending Acts to be read as one

PART 7 – INSTRUMENTS UNDER CODE

  1. Schedule applies to statutory instruments

PART 8 – APPLICATION TO COASTAL SEA

  1. Application

CONSUMER CREDIT CODE

PART 1 – PRELIMINARY

Short title

  1. This Code may be cited as the Consumer Credit Code.

Commencement

  1. This Code commences as provided under section 2 of the Consumer Credit (Queensland) Act 1994 of Queensland.

Interpretation generally

3.(1)    Schedule 1 contains the principal definitions of words and expressions used in this Code.

  1. Schedule 2 contains other miscellaneous provisions relating to the interpretation of this Code.

Meaning of “credit” and “amount of credit”

4.(1)    For the purposes of this Code, “credit” is provided if under a contract –

(a)payment of a debt owed by one person (the debtor) to another (the credit provider) is deferred; or

(b)one person (the debtor) incurs a deferred debt to another (the credit provider).

  1. For the purposes of this Code, the “amount of credit” is the amount of the debt actually deferred.

Meaning of “credit contract”

  1. For the purposes of this Code, a “credit contract” is a contract under which credit is or may be provided, being the provision of credit to which this Code applies.

Provision of credit to which this Code applies

6.(1)    This Code applies to the provision of credit (and to the credit contract and related matters) if when the credit contract is entered into or (in the case of pre-contractual obligations) is proposed to be entered into –

(a)the debtor is a natural person ordinarily resident in this jurisdiction or a strata corporation formed in this jurisdiction; and

(b)the credit is provided or intended to be provided wholly or predominantly for personal, domestic or household purposes; and

(c)      a charge is or may be made for providing the credit; and

(d)the credit provider provides the credit in the course of a business of providing credit or as part of or incidentally to any other business of the credit provider.

  1. If not all the debtors under a credit contract ordinarily reside, or are strata corporations formed, in this jurisdiction, this Code applies only if credit is first provided under the contract in this jurisdiction.

  2. If this Code applies to the provision of credit (and to the credit contract and related matters) –

(a)this Code applies in relation to all transactions or acts under the contract whether or not they take place in this jurisdiction; and

(b)this Code continues to apply even though the debtor ceases to be ordinarily resident in this jurisdiction.

  1. For the purposes of this section, investment by the debtor is not a personal, domestic or household purpose.

  2. For the purposes of this section, the predominant purpose for which credit is provided is –

(a)the purpose for which more than half of the credit is intended to be used; or

(b)if the credit is intended to be used to obtain goods or services for use for different purposes, the purpose for which the goods or services are intended to be most used.

Provision of credit to which this Code does not apply

7.(1)    Short term credit. This Code does not apply to the provision of credit limited by the contract to a total period not exceeding 62 days.

  1. Credit without prior agreement. This Code does not apply to the provision of credit without prior agreement between the credit provider and the debtor. For example, when a cheque account becomes overdrawn but there is no agreed overdraft facility or when a savings account falls into debit.

  2. Credit for which only account charge payable. This Code does not apply to the provision of credit under a continuing credit contract if the only charge that is or may be made for providing the credit is a periodic or other fixed charge that does not vary according to the amount of credit provided. However, this Code applies if the charge is of a nature prescribed by the regulations for the purposes of this subsection or if the charge exceeds the maximum charge (if any) so prescribed.

  3. Joint credit and debit facilities. This Code does not apply to any part of a credit contract under which both credit and debit facilities are available to the extent that the contract or any amount payable or other matter arising out of it relates only to the debit facility.

  4. Bill facilities. This Code does not apply to the provision of credit arising out of a bill facility, that is, a facility under which the credit provider provides credit by accepting, drawing, discounting or endorsing a bill of exchange or promissory note. However, the regulations may provide for the application of the Code to the provision of all or any credit arising out of such a facility.

  5. Insurance premiums by instalments. This Code does not apply to the provision of credit by an insurer for the purpose of the payment to the insurer of an insurance premium by instalments, even though the instalments exceed the total of the premium that would be payable if the premium were paid in a lump sum, if on cancellation the insured would have no liability to make further payments under the contract.

  6. Pawnbrokers. This Code does not apply to the provision of credit by a pawnbroker in the ordinary course of a pawnbroker’s business (being a business which is being lawfully conducted by the pawnbroker). However, sections 70 to 72 (Court may reopen unjust transactions) apply to any such provision of credit.

  7. Trustees of estates. This Code does not apply to the provision of credit by the trustee of the estate of a deceased person by way of an advance to a beneficiary or prospective beneficiary of the estate. However, sections 70 to 72 (Court may reopen unjust transactions) apply to any such provision of credit.

  8. Employee loans. This Code (other than this Part, Part 4, Division 3, Part 5, Divisions 4 and 5, Part 7, Part 11 and Schedules 1 and 2) does not apply to the provision of credit by an employer, or a related body corporate within the meaning of the Corporations Law of an employer, to an employee or former employee (whether or not it is provided to the employee or former employee with another person). However, for a credit provider that provides credit in the course of a business of providing credit, this subsection applies only to the provision of credit on terms that are more favourable to the debtor than the terms on which the credit provider provides credit to persons who are not employees or former employees of the credit provider or a related body corporate.

  9. Regulations may exclude credit. The regulations may exclude, from the application of all or any provisions of this Code, the provision of credit of a class specified in the regulations. In particular (but without limiting the generality of the foregoing), the regulations may so exclude the provision of credit if the amount of the credit exceeds or may exceed a specified amount or if the credit is provided by a credit provider of a specified class.

Mortgages to which this Code applies

8.(1)    This Code applies to a mortgage if –

(a)      it secures obligations under a credit contract or a related guarantee; and

(b)      the mortgagor is a natural person or a strata corporation.

  1. If any such mortgage also secures other obligations, this Code applies to the mortgage to the extent only that it secures obligations under the credit contract or related guarantee.

  2. The regulations may exclude, from the application of all or any provisions of this Code, a mortgage of a class specified in the regulations.

Guarantees to which this Code applies

9.(1)    This Code applies to a guarantee if –

(a)      it guarantees obligations under a credit contract; and

(b)      the guarantor is a natural person or a strata corporation.

  1. If any such guarantee also guarantees other obligations, this Code applies to the guarantee to the extent only that it guarantees obligations under the credit contract.

  2. The regulations may exclude, from the application of all or any provisions of this Code, a guarantee of a class specified in the regulations.

Goods leases with option to purchase to be regarded as sale by instalments

10.(1) For the purposes of this Code, a contract for the hire of goods under which the hirer has a right or obligation to purchase the goods, is to be regarded as a sale of the goods by instalments if the charge that is or may be made for hiring the goods, together with any other amount payable under the contract (including an amount to purchase the goods or to exercise an option to do so) exceeds the cash price of the goods.

Note:  A contract includes a series of contracts, or contracts and arrangements (see Schedule 1).

  1. A debt is to be regarded as having been incurred, and credit provided, in such circumstances.

  2. Accordingly, if because of section 6 (1) the contract is a credit contract, this Code (including Part 6) applies as if the contract had always been a sale of goods by instalments, and for that purpose

(a)      the amounts payable under the contract are the instalments; and

(b)      the credit provider is the person who is to receive those payments; and

(c)      the debtor is the person who is to make those payments; and

(d)the property of the supplier in the goods passes under the contract to the person to whom the goods are hired on delivery of the goods or the making of the contract, whichever occurs last; and

(e)the charge for providing the credit is the amount by which the charge that is or may be made for hiring the goods, together with any other amount payable under the contract (including an amount to purchase the goods or to exercise an option to do so), exceeds the cash price of the goods; and

(f)a mortgage containing the terms and conditions set out in the regulations is taken to have been entered into in writing between the person to whom the goods are hired under the contract and the supplier as security for payment to the supplier of the amount payable to the supplier by the person to whom the goods are hired under the contract; and

(g)any provision in the contract for hiring by virtue of which the supplier is empowered to take possession, or dispose of, the goods to which the contract relates is void.

  1. For the purposes of this section, the amount payable under the contract includes any agreed or residual value of the goods at the end of the hire period or on termination of the contract, but does not include the following amounts –

(a)any amount payable in respect of services that are incidental to the hire of goods under the contract;

(b)any amount that ceases to be payable on the termination of the contract following the exercise of a right of cancellation by the hirer at the earliest opportunity.

Note:  Part 10 (Consumer leases) applies to the contracts specified in that Part for the hire of goods under which the hirer does not have a right or obligation to purchase the goods.

Presumptions relating to application of Code

11.(1) In any proceedings (whether brought under this Code or not) in which a party claims that a credit contract, mortgage or guarantee is one to which this Code applies, it is presumed to be such unless the contrary is established.

  1. Credit is presumed conclusively for the purposes of this Code not to be provided wholly or predominantly for personal, domestic or household purposes if the debtor declares, before entering into the credit contract, that the credit is to be applied wholly or predominantly for business or investment purposes (or for both purposes).

  2. However, such a declaration is ineffective for the purposes of this section if the credit provider (or any other person who obtained the declaration from the debtor) knew, or had reason to believe, at the time the declaration was made that the credit was in fact to be applied wholly or predominantly for personal, domestic or household purposes.

Note:  See section 176 for the circumstances in which a credit provider is taken to have knowledge of or reason to believe something for the purposes of this Code.

  1. A declaration under this section is to be substantially in the form (if any) required by the regulations and is ineffective for the purposes of this section if it is not.

PART 2 – CREDIT CONTRACTS

Division 1 – Negotiating and making credit contracts

Credit contract to be in form of written contract document

  1. A credit contract must be in the form of –

(a)a written contract document signed by the debtor and the credit provider; or

(b)a written contract document signed by the credit provider and constituting an offer to the debtor that is accepted, if the terms of the offer provide for it, by the debtor or another authorised person accessing or drawing down credit to incur a liability or by any other act of the debtor that satisfies the conditions of the offer.

Other forms of contract

13.(1) The regulations may authorise other ways of making a credit contract that do not involve a written document.

  1. In that case, the provisions of this Division apply with such modifications as are prescribed by the regulations.

Precontractual disclosure

14.(1) A credit provider must not enter into a credit contract unless the credit provider has given the debtor –

(a)a precontractual statement setting out the matters required by section 15 to be included in the contract document; and

(b)an information statement in the form required by the regulations of the debtor’s statutory rights and statutory obligations.

  1. Those statements must be given –

(a)      before the contract is entered into; or

(b)      before the debtor makes an offer to enter into the contract,

whichever first occurs.

  1. Before entering into a credit contract, the credit provider may inform the debtor of the comparison rate. If the credit provider does so, the comparison rate must be calculated as prescribed by the regulations and be accompanied by the warnings set out in the regulations.

  2. The precontractual statement must contain the financial information specified by the regulations in the form prescribed by the regulations.

  3. The precontractual statement may be the proposed contract document or be a separate document or documents.

  4. A document forming part of a precontractual statement consisting of more than one document when the pre-contractual statement is first given must indicate that it does not contain all of the required precontractual information.

  5. A pre-contractual statement may be varied, within the time referred to in subsection (2), by written notice containing particulars of the variation given to the debtor.

Matters that must be in contract document

  1. The contract document must contain the following matters –

(A)     Credit provider’s name.

The credit provider’s name.

(B)     Amount of credit.

(a)If the amount of the credit to be provided is ascertainable, that amount and the persons, bodies or agents (including the credit provider) to whom the amount is to be paid and the amounts payable to them, to the extent that they are ascertainable.

(b)If the amount of the credit to be provided is not ascertainable, the maximum amount of credit agreed to be provided, or the credit limit under the contract, if any.

(c)If the credit is provided by the supplier for a sale of land or goods by instalments, a description of the land and its price or of the goods and their cash price.

(C)Annual percentage rate or rates.

(a)The annual percentage rate or rates under the contract.

(b)If there is more then one rate, how each rate applies.

(c)If an annual percentage rate under the contract is determined by referring to a reference rate –

(i)       the name of the rate or a description of it; and

(ii)the margin or margins (if any) above or below the reference rate to be applied to determine the annual percentage rate or rates; and

(iii)where and when the reference rate is published or, if it is not published, how the debtor may ascertain the rate; and

(iv)the current annual percentage rate or rates.

(D)     Calculation of interest charges.

The method of calculation of the interest charges payable under the contract and the frequency with which interest charges are to be debited under the contract.

(E)      Total amount of interest charges payable.

The total amount of interest charges payable under the contract, if ascertainable (but only if the contract would, on the assumptions in sections 158 and 160, be paid out within 7 years of the date on which credit is first provided under the contract).

(F)      Repayments.

(a)      If more than one repayment is to be made –

(i)       the amount of the repayments or the method of calculating the amount; and

(ii)if ascertainable when the contract is made – the number of the repayments, the period over which they are to be paid and the total amount of the repayments; and

(iii)when the first repayment is to be paid, if ascertainable, and the frequency of payment of repayments.

(b)If the contract provides for a minimum repayment, the amount of that repayment, if ascertainable, but, if not, the method of calculation of the minimum repayment.

(G)Credit fees and charges.

(a)A statement of the credit fees and charges that are, or may become, payable under the contract, and when each such fee or charge is payable, if ascertainable.

(b)The amount of any such fee or charge if ascertainable, but, if not, the method of calculation of the fee or charge, if ascertainable.

(c)The total amount of credit fees and charges payable under the contract to the extent that it is ascertainable.

(H)     Changes affecting interest and credit fees and charges.

If the annual percentage rate or rates or the amount or frequency of payment of a credit fee or charge or instalment payable under the contract may be changed, or a new credit fee or charge may be imposed, a statement or statements to that effect and of the means by which the debtor will be informed of the change or the new fee or charge.

  1. Statements of account.

    The frequency with which statements of account are to be provided to the debtor (except in the case of a credit contract for which the annual percentage rate is fixed for the whole term of the contract and under which there is no provision for varying the rate).

(J)Default rate.

(a)If the contract is a contract under which a default rate of interest may be charged when payments are in default – a statement to that effect and the default rate and how it is to be applied.

(b)If the default rate under the contract is determined by referring to a reference rate –

(i)       the name of the rate or a description of it; and

(ii)the margin or margins (if any) above or below the reference rate to be applied to determine the default rate; and

(iii)when and where the reference rate is published or, if it is not published, how the debtor may ascertain the rate; and

(iv)the current default rate.

(K)     Enforcement expenses.

A statement that enforcement expenses may become payable under the credit contract or mortgage (if any) in the event of a breach.

(L)Mortgage or guarantee.

(a)If any mortgage or guarantee is to be or has been taken by the credit provider, a statement to that effect.

(b)In the case of a mortgage, a description of the property subject to, or proposed to be subject to, the mortgage, to the extent to which it is ascertainable.

(M)Commission.

If a commission is to be paid by or to the credit provider for the introduction of credit business or business financed by the contract –

(a)a statement of that fact; and

(b)      the person by whom the commission is payable; and

(c)      the person to whom the commission is payable; and

(d)      the amount if ascertainable.

Commission does not include fees payable by a supplier under a merchant service agreement with a credit provider, an amount payable in connection with a credit-related insurance contract or commission paid to employees of the credit provider.

(N)     Insurance financed by contract.

If the credit provider knows that the debtor is to enter into a credit-related insurance contract and that the insurance is to be financed under the credit contract –

(a)the name of the insurer; and

(b)the amount payable to the insurer or, if it is not ascertainable, how it is calculated; and

(c)the kind of insurance and any other particulars that may be prescribed by the regulations; and

(d)if the credit provider knows of any commission to be paid by the insurer for the introduction of the insurance business – a statement that it is to be paid and, if ascertainable, the amount of the commission expressed either as a monetary amount or as a proportion of the premium.

(O)     Other information.

Any information or warning required by the regulations.

Note:  Sections 158 to 160 set out the tolerances and assumptions applicable to matters required to be disclosed.

Form and expression of contract document

  1. The contract document must conform to the requirements of the regulations as to its form and the way it is expressed and, subject to any such requirements, may consist of one or more separate documents.

Alteration of contract document

17.(1) An alteration of (including an addition to) a contract document by the credit provider after it is signed by the debtor is presumed to be ineffective unless, after the alteration is made, the debtor signs or initials in the margin opposite the alteration.

  1. This section does not apply to an alteration having the effect of reducing the debtor’s liabilities under the credit contract.

Copy of contract for debtor

18.(1) If a contract document is to be signed by the debtor and returned to the credit provider, the credit provider must give the debtor a copy to keep.

  1. A credit provider must, not later than 14 days after a credit contract is made, give a copy of the contract in the form in which it was made to the debtor.

  2. Subsection (2) does not apply to a credit contract the terms of which are accepted by accessing or drawing down credit to incur a liability or by the debtor satisfying the conditions of an offer.

When debtor may terminate contract

19.(1) Although a credit contract has been made, the debtor may nevertheless, by written notice to the credit provider, terminate the contract unless any credit has been obtained or attempted to be obtained under the contract.

  1. Nothing in this section prevents the credit provider from retaining or requiring payment of fees or charges incurred before the termination and which would have been payable under the credit contract.

Offence for noncompliance

  1. A credit provider must not –

(a)enter into a credit contract that contravenes a requirement of this Division; or

(b)      otherwise contravene a requirement of this Division.

Maximum penalty – 100 penalty units.

Division 2 – Debtor’s monetary obligations

Prohibited monetary obligations

21.(1) A credit contract must not impose a monetary liability on the debtor –

(a)      in respect of a fee or charge prohibited by this Code; or

(b)in respect of an amount of a fee or charge exceeding the amount that may be charged consistently with this Code; or

(c)in respect of an interest charge under the contract exceeding the amount that may be charged consistently with this Code.

  1. Civil effect. Any provision of a credit contract that imposes a monetary liability prohibited by subsection (1) is void to the extent that it does so. If an amount that is prohibited by subsection (1) is paid, it may be recovered.

  2. A credit fee or charge cannot be charged in respect of a credit contract unless the contract authorises it to be charged.

  3. Civil effect. If an amount that is prohibited by subsection (3) is paid, it may be recovered.

Offences related to prohibited monetary obligations

  1. A credit provider must not –

(a)enter into a credit contract on terms imposing a monetary liability prohibited by section 21 (1); or

(b)require or accept payment of an amount in respect of a monetary liability that cannot be imposed consistently with this Code.

Maximum penalty – 100 penalty units.

Loan to be in money or equivalent

23.(1) A credit provider must not under a credit contract pay an amount to or in accordance with the instructions of the debtor unless the payment is in cash or money’s worth and is made in full without deducting an amount for interest charges under the contract.

Maximum penalty – 100 penalty units.

  1. The regulations may provide that subsection (1) does not apply to the deduction of an amount for the first payment of interest charges under the contract.

Early payments and crediting of payments

24.(1) A credit provider must accept any payment under a credit contract that is made before it is payable under the contract unless the contract prohibits its early payment.

Maximum penalty – 100 penalty units.

  1. A credit provider must credit each payment made under a credit contract to the debtor as soon as practicable after receipt of the payment.

    Maximum penalty – 100 penalty units.

  2. Despite subsection (2), a credit provider is not required to credit a payment made under a credit contract before it is payable under the contract if –

(a)the contract prohibits its early payment; and

(b)the credit provider informs the debtor, before accepting the payment, that the payment will not be credited to the debtor before it becomes payable under the contract.

  1. A credit contract may not, under this section, prohibit the paying out of the contract at any time under section 75.

Division 3 – Interest charges

Definitions relating to interest

25.(1) In this Code –

“annual percentage rate” under a credit contract means a rate specified in the contract as an annual percentage rate;

“daily percentage rate” means the rate determined by dividing the annual percentage rate by 365;

“default rate” means a higher annual percentage rate permitted by section 28;

“unpaid balance” under a credit contract at any time means the difference between all amounts credited and all amounts debited to the debtor under the contract at that time;

“unpaid daily balance” for a day under a credit contract means the unpaid balance under the contract at the end of that day.

  1. A credit contract may specify, for the purposes of payments under the contract, when a day ends.

Limit on interest charges

26.(1) The maximum amount of an interest charge that may be imposed or provided for under a credit contract is –

(a)where only one annual percentage rate applies to the unpaid balances under the contract – the amount determined by applying the daily percentage rate to the unpaid daily balances; or

(b)in any other case – the sum of each of the amounts determined by applying each daily percentage rate to that part of the unpaid daily balances to which it applies under the contract.

  1. However, an interest charge under a credit contract for a month, a quarter or half a year may be determined by applying the annual percentage rate or rates, divided by 12 (for a month), by 4 (for a quarter) or by 2 (for half a year), to the whole or that part of the average unpaid daily balances to which it applies. The regulations may provide for the calculation of unpaid daily balances in these circumstances.

  2. This section does not prevent the imposition of a default rate of interest permitted by section 28.

Early debit or payment of interest charges prohibited

27.(1) A credit provider must not, at any time before the end of a day to which an interest charge applies, require payment of or debit the interest charge.

  1. A credit contract may provide for an interest charge to become payable or be debited at any time after the day to which it applies.

  2. The regulations may provide that subsection (1) does not apply to the first payment of interest charges under a credit contract.

Default interest

28.(1) A credit contract may not provide that an annual percentage rate applicable under a credit contract to any part of the unpaid balance will differ according to whether the debtor is in default under the contract.

  1. However, a credit contract may provide for such a differential rate if the higher rate is imposed only in the event of default in payment, in respect of the amount in default and while the default continues.

Division 4 – Fees and charges

Prohibited credit fees or charges

  1. The regulations may specify credit fees or charges or classes of credit fees or charges that are prohibited for the purposes of this Code.

Fees or charges passed on to other parties

30.(1) A fee or charge payable by a debtor in respect of an amount payable by the credit provider to another person, body or agency is not to exceed the actual amount payable by the credit provider if that amount is ascertainable when the fee or charge is paid by the debtor. The actual amount payable is to be determined after taking into account any discount or other rebate or other applicable allowance received or receivable by the credit provider or a related body corporate within the meaning of the Corporations Law.

  1. If the actual amount paid by the credit provider to another person was not ascertainable when the debtor paid an amount to the credit provider for the fee or charge and is less than the amount paid by the debtor, the credit provider must refund or credit the difference to the debtor.

  2. Nothing in this section requires a rebate on tax payable by the credit provider or a related body corporate to be taken into account in determining the actual amount payable or paid by a credit provider.

  3. Nothing in this section prevents a commission from being payable or paid in accordance with section 135.

Division 5 – Credit provider’s obligation to account

Statements of account

31.(1) A credit provider that provides credit must give to the debtor, or arrange for the debtor to be given, periodic statements of account in accordance with this Division.

Maximum penalty – 100 penalty units.

  1. The maximum period for a statement of account is –

(a)in the case of a continuing credit contract under which credit is ordinarily obtained only by the use of a card – 40 days; or

(b)in the case of any other continuing credit contract – 40 days or such longer period, not exceeding 3 months, as is agreed by the credit provider and the debtor; or

(c)      in any other case – 6 months.

  1. A statement of account need not be given if –

(a)the credit is provided under a credit contract for which the annual percentage rate is fixed for the whole term of the contract and under which there is no provision for varying the rate; or

(b)no amount has been debited or credited to the account during the statement period and the amount outstanding is zero or below a level fixed by the regulations; or

(c)the credit provider wrote off the debt of the debtor under the credit contract during the statement period and no further amount has been debited or credited to the account during the statement period; or

(d)the debtor was in default under the credit contract (not being a continuing credit contract) during the statement period and the credit provider has commenced enforcement proceedings; or

(e)the debtor was in default under a continuing credit contract during the preceding 120 days, or during the statement period and the 2 immediately preceding statement periods, whichever is the shorter time, and the credit provider has, before the commencement of the statement period, exercised a right not to provide further credit under the contract and has not provided further credit during the period.

Information to be contained in statements of account

  1. A statement of account must contain the following matters –

(A)     Statement period.

The dates on which the statement period begins and ends.

(B)     Balances.

The opening and closing balances (indicating the amount owed by the debtor at the beginning and at the end of the statement period).

(C)     Credit provided.

Particulars of each amount of credit provided by the credit provider to the debtor during the statement period.

(D)     Identity of supplier.

In the case of a continuing credit contract under which credit is ordinarily obtained only by the use of a card – the identity of the supplier if the credit was provided for any cash, goods or services supplied by another person.

(E)      Interest charges.

(a)The amount of the interest charge debited to the debtor’s account during the statement period and when the interest was debited.

(b)The annual percentage rate or rates and, if required by Part 4, details of any change since the last statement period.

(F)      Fees and charges.

Particulars of any fees and charges debited to the debtor’s account during the statement period.

(G)     Payments to or from account.

(a)Particulars of each amount paid by the debtor to the credit provider, or credited to the debtor, during the statement period.

(b)Particulars of any amount transferred to or from the account to which the statement relates or to or from any other account maintained under or for the purposes of the credit contract.

(H)Amounts payable by debtor.

If a minimum amount is payable by the debtor under a continuing credit contract, a statement of the amount and the date by which it is due.

  1. Insurance payments.

    If payment to an insurer is made during the statement period under a credit – related insurance contract that is agreed to be financed under the credit contract –

(a)the name of the insurer, the amount paid to the insurer and the kind of insurance; and

(b)if the credit provider is aware of any commission to be paid by the insurer in relation to the insurance contract – the amount of the commission expressed either as a monetary amount or as a proportion of the premium, if ascertainable when the statement is given;

(if not previously disclosed in accordance with this Code).

(J)      Alterations.

Any correction of information in a previous statement of account.

(K)     Other.

Any other information required by the regulations.

Note:  Sections 158 to 160 set out the tolerances and assumptions applicable to matters required to be included in statements of accounts.

Opening balance must not exceed closing balance of previous statement

33.(1) The opening balance shown in each successive statement of account must not exceed the closing balance shown in the last statement of account.

  1. However, if no statement of account was given for the previous period, the next statement of account required to be given by this Code may have an opening balance that exceeds the closing balance for the previous statement and must provide the particulars referred to in section 32 (C)-(K) in relation to any immediately preceding periods for which statements were not given.

Statement of amount owing and other matters

34.(1) A credit provider must, at the request of a debtor or guarantor and within the time specified by this section, provide a statement of all or any of the following –

(a)      the current balance of the debtor’s account;

(b)      any amounts credited or debited during a period specified in the request;

(c)      any amounts overdue and when each such amount became due;

(d)      any amount payable and the date it became due.

Maximum penalty – 100 penalty units.

  1. The statement must be given –

(a)within 14 days, if all information requested relates to a period 1 year or less before the request is given; or

(b)within 30 days, if any information requested relates to a period more than 1 year before the request is given.

  1. A statement under this section may be given orally but if the request for the statement is made in writing the statement must be given in writing.

  2. A credit provider is not required to provide a further written statement under this section if it has, within the 3 months before the request is given, given such a statement to the person requesting it.

  3. Except where otherwise ordered by the Court on the application of the debtor or guarantor, a credit provider is not required to provide information in a statement under this section about amounts credited or debited, or which were overdue or payable, more than 7 years before the request is given unless those amounts are currently overdue and payable.

Court may order statement to be provided

  1. If a statement is not provided within the time required by this Division, the Court may, on the application of the debtor or guarantor, order the credit provider to provide the statement or itself determine the amounts in relation to which the statement was sought.

Disputed accounts

36.(1) If a debtor, by written notice to a credit provider, disputes a particular liability entered against the debtor under a credit contract, the credit provider must give the debtor a written notice explaining in reasonable detail how the liability arises.

  1. A written notice need not be given if the credit provider agrees with the debtor as to the disputed amount and gives the debtor a written notice advising of the agreed liability.

  2. If in the case of a continuing credit contract the disputed entry appears in a statement of account in which a date for payment of the amount of the account, or part of that amount, is shown, the notice of dispute must be given to the credit provider on or before that date.

  3. In any other case, the notice of dispute must be given to the credit provider within 30 days of receiving the statement of account in which the amount, or part of that amount, was first shown.

  4. The credit provider must not begin enforcement proceedings on the basis of a default arising from the disputed liability until at least 30 days have elapsed from the time the written explanation or advice as to agreement was given.

  5. A debtor or credit provider may apply to the Court to have the Court determine a disputed liability and, if satisfied that a liability is genuinely disputed, the Court may determine the matters in dispute and make such consequential orders as it thinks just.

  6. If an application is made to the Court under this section within 30 days after the explanation is given, the credit provider must not, without leave of the Court, begin enforcement proceedings on the basis of a default arising from the disputed liability.

    Maximum penalty – 50 penalty units.

  7. This section does not affect a dispute not dealt with, or not arising, under this section.

Division 6 – Certain transactions not to be treated as contracts

Deferrals, waivers and changes under contracts

  1. The provision of credit as a result of a change to an existing credit contract, or a deferral or waiver of an amount under an existing credit contract, is not to be treated as creating a new credit contract for the purposes of this Code, if the change, deferral or waiver is made in accordance with this Code or the contract.

PART 3 – RELATED MORTGAGES AND GUARANTEES

Division 1 – Mortgages

Note:  This Division applies to a mortgage (under which the mortgagor is a natural person or a strata corporation) which secures obligations under a credit contract or related guarantee, whether or not it also secures other obligations (see section 8).

Form of mortgage

38.(1) A mortgage must be in the form of a written mortgage document that is signed by the mortgagor.

  1. It is sufficient compliance with subsection (1) if –

(a)      the mortgage is contained in a credit contract signed by the mortgagor; or

(b)one of the documents comprising the mortgage document is signed by the mortgagor (and the other documents are referred to in the signed document).

  1. However, a goods mortgage need not be in the form of a written mortgage document if the credit provider lawfully had possession of the goods that are subject to the mortgage before the mortgage was entered into, otherwise than because the credit provider supplied the goods (for example, the goods were held by way of security).

  2. A mortgage is not enforceable unless it complies with this section.

Copy of mortgage for mortgagor

  1. If a mortgage is in the form of a written mortgage document and is not part of a credit contract, the credit provider must give the mortgagor a copy to keep, in the form in which it was made, within 14 days after it is made.

Mortgages over all property void

40.(1) A mortgage that does not describe or identify the property which is subject to the mortgage is void.

  1. Without limiting subsection (1), a provision in a mortgage that charges all the property of the mortgagor is void.

Restriction on mortgage of future property

41.(1) A provision in a mortgage to the effect that the mortgagor creates or agrees to create a mortgage over or in respect of property or a class of property that is to be, or may be, acquired by the mortgagor after the mortgage is entered into is void.

  1. However, this section does not apply –

(a)to a provision in a mortgage of property that is to be acquired wholly or partly with the credit provided under the credit contract secured by the mortgage; or

(b)to a provision in a mortgage relating to property or a class of property (whether or not ascertained) described or identified in the mortgage; or

(c)to a provision in a mortgage relating to goods acquired in replacement for, or as additions or accessories to, other goods subject to the mortgage; or

(d)      to any other provision specified by the regulations.

Mortgages and continuing credit contracts

42.(1) A provision in a mortgage to the effect that goods supplied from time to time under a continuing credit contract are subject to the mortgage is void.

  1. However, this section does not apply to a provision in a mortgage relating to specified goods securing payment of a debt under a continuing credit contract.

All accounts mortgages

43.(1) In addition to securing credit provided by the credit contract or proposed credit contract, or securing obligations under a related guarantee or proposed related guarantee, to which a mortgage initially applies, the mortgage may contain a provision that secures credit provided under another future credit contract or future related guarantee.

  1. Any such mortgage is unenforceable in relation to such a future credit contract or future related guarantee unless the credit provider has –

(a)given the mortgagor a copy of the contract document of the credit contract or proposed credit contract or a copy of the guarantee or proposed guarantee to which the mortgage is to relate; and

(b)subsequently obtained from the mortgagor a written acceptance of the extension of the mortgage or obtained acceptance in some other form provided for by the regulations.

  1. Section 38 (Form of mortgage) does not apply to an extension of a mortgage under this section.

Third party mortgages prohibited

44.(1) A credit provider must not enter into a mortgage to secure obligations under a credit contract unless each mortgagor is a debtor under the contract or a guarantor under a related guarantee.

  1. A credit provider must not enter into a mortgage to secure obligations under a guarantee unless each mortgagor is a guarantor under the guarantee or a debtor under the related credit contract.

  2. A mortgage which does not comply with this section is unenforceable.

  3. The Court may, on the application of a party to a mortgage that is unenforceable because of this section, order that the credit provider takes such steps as are necessary to discharge the mortgage.

Maximum amount which may be secured

45.(1) A mortgage is void to the extent that it secures an amount, in relation to any credit contract which it secures, that exceeds the sum of the amount of the liabilities of the debtor under the credit contract and the reasonable enforcement expenses of enforcing the mortgage.

  1. A mortgage is void to the extent that it secures an amount, in relation to any guarantee which it secures, that exceeds the limit of the guarantor’s liability under the guarantee and the reasonable enforcement expenses of enforcing the mortgage.

  2. This section does not affect a provision of a mortgage permitted by section 43.

Prohibited securities

46.(1) A mortgage cannot be created over employees’ remuneration or employment benefits or benefits under a superannuation scheme unless the regulations permit it to do so.

  1. An obligation under a credit contract cannot be secured by a cheque, or bill of exchange or promissory note, endorsed or issued by the debtor or guarantor.

  2. A mortgage or security is void to the extent that it contravenes this section.

Assignment or disposal of mortgaged property by mortgagor

47.(1) A mortgagor must not assign or dispose of property that is subject to a mortgage without the credit provider’s consent or the authority of the Court under subsection (3).

Maximum penalty – 50 penalty units.

  1. The credit provider must not unreasonably withhold consent or attach unreasonable conditions to the consent (but a condition requiring security over property of an equivalent kind and value is not to be regarded as unreasonable).

  2. The Court may, on application by a mortgagor, authorise the mortgagor to dispose of mortgaged property on conditions determined by the Court if –

(a)the credit provider fails within a reasonable time to reply to a request for consent to do so by the mortgagor; or

(b)consent is unreasonably withheld, or unreasonable conditions are attached to the consent.

Conditions on consent to assignment or disposal of property subject to mortgage

48.(1) As a condition of granting consent to an assignment or disposal of property subject to a mortgage, the credit provider may make any or all of the requirements set out in this section. This section does not limit any other requirements that may be made by the credit provider.

  1. The credit provider may require any breaches of the credit contract to which the mortgage relates and of the mortgage to be remedied.

  2. The credit provider may require the mortgagor and the assignee or person to whom the property is disposed to execute and deliver to the credit provider an agreement relating to the assignment or disposal in a form approved by the credit provider under which, without prejudicing or affecting the liability of the mortgagor, the assignee or person to whom the property is disposed agrees with the credit provider –

(a)to be personally liable to pay the amounts due or that become due under the mortgage; and

(b)to perform and observe all other requirements and conditions of the mortgage.

  1. The credit provider may require the mortgagor and the assignee or person to whom the property is disposed to pay the reasonable costs (if any) incurred by the credit provider for –

(a)stamp duty in respect of the assignment or disposal agreement, or any other document the credit provider reasonably requires to be executed in connection with the assignment or disposal; and

(b)      fees payable to a duly qualified legal practitioner.

Offence for noncompliance

49.(1) A credit provider must not –

(a)      enter into a mortgage that contravenes a requirement of this Division; or

(b)      otherwise contravene a requirement of this Division.

  1. A credit provider must not enter into a mortgage that is void or unenforceable, or that includes a provision that is void or unenforceable, because of this Division.

    Maximum penalty – 50 penalty units.

Division 2 – Guarantees

Note:  This Division applies to a guarantee (under which the guarantor is a natural person or a strata corporation) to the extent to which it guarantees obligations under a credit contract, whether or not it also guarantees other obligations (see section 9).

Form of guarantee

50.(1) A guarantee must be in writing signed by the guarantor.

  1. It is sufficient compliance with subsection (1) if the guarantee is contained in a mortgage signed by the guarantor.

  2. The regulations may make provision for or with respect to the content of guarantees and the way they are expressed.

  3. A guarantee is not enforceable unless it complies with this section and regulations made under this section.

Disclosure

51.(1) Before the obligations under a credit contract are secured by a guarantee, the credit provider must give to the prospective guarantor –

(a)a copy of the contract document of the credit contract or proposed credit contract; and

(b)a document in the form prescribed by the regulations explaining the rights and obligations of a guarantor.

  1. A guarantee is not enforceable unless subsection (1)(a) is complied with.

Copies of documents for guarantor

  1. A credit provider must, within 14 days after a guarantee is signed and given to the credit provider, give to the guarantor a copy of the guarantee signed by the guarantor and any related credit contract or proposed credit contract (if a copy of the related contract has not previously been given to the guarantor).

Guarantor may withdraw before credit is provided

53.(1) Although a guarantee has been made, the guarantor may nevertheless, by written notice to the credit provider –

(a)withdraw from the guarantee at any time before credit is first provided under the credit contact; or

(b)withdraw from the guarantee after credit is first provided under the contract if the credit contract made differs in some material respect from the proposed credit contract or pre-contractual statement given to the guarantor before the guarantee is signed.

  1. The guarantor may withdraw from a guarantee under this section to the extent only that it guarantees obligations under the credit contract.

  2. This section is subject to section 56.

Extension of guarantee

54.(1) In addition to guaranteeing obligations under a credit contract or proposed credit contract to which a guarantee initially applies, a guarantee may contain a provision that makes credit provided under another future credit contract subject to the guarantee.

  1. Any such guarantee is unenforceable in relation to such a future credit contract unless the credit provider has –

(a)given the guarantor a copy of the contract document of that future credit contract; and

(b)subsequently obtained from the guarantor a written acceptance of the extension of the guarantee or obtained acceptance in some other form provided for by the regulations.

  1. Section 50 (Form of guarantee) does not apply to an extension of a guarantee under this section.

Limitation of guarantor’s liability

55.(1) Total amount for which guarantor can be liable. A guarantee is void to the extent that it secures an amount, in relation to a credit contract to which this Code applies, that exceeds the sum of the amount of the liabilities of the debtor under the credit contract and the reasonable expenses of enforcing the guarantee, or any lesser amount agreed between the credit provider and the guarantor.

  1. Unenforceable contracts. Nothing in subsection (1) prevents a credit provider from enforcing a guarantee relating to liabilities under a credit contract that is unenforceable solely because of the debtor’s death, insolvency or incapacity or any other act or omission by, or circumstance affecting, the debtor.

  2. Debtors under 18 years of age. A guarantee which guarantees the liability of a debtor who was under 18 years of age when the liability was incurred cannot be enforced against the guarantor unless it contains a prominent statement to the effect that the guarantor may not be entitled to an indemnity against the debtor.

  3. Guarantor may limit liabilities under continuing credit contract. In the case of a continuing credit contract, a guarantor may, by notice to the credit provider, limit the guarantee so that it applies only to liabilities related to credit previously provided to the debtor under the credit contract (including any liabilities not yet debited to the debtor’s account) and such further amount (if any) as the guarantor agrees to guarantee.

  4. Guarantee must not limit indemnity. A guarantee is void to the extent that it limits the guarantor’s right to indemnity from the person whose liability the guarantor has guaranteed or it postpones or otherwise purports to limit the guarantor’s right to enforce the indemnity against the person.

  5. Effect of section. This section does not affect a provision of a guarantee permitted by section 54.

Increase in guarantor’s liabilities

56.(1) If the terms of a credit contract are changed to increase or allow for an increase in liabilities, the liabilities of a guarantor under a guarantee that secures those liabilities are not increased unless –

(a)the credit provider gives to the guarantor a written notice setting out particulars of the change in the terms of the credit contract; and

(b)the credit provider has subsequently obtained from the guarantor a written acceptance of the extension of the guarantee to those increased liabilities or obtained acceptance in some other form provided for by the regulations.

  1. This section does not apply to an increase in liabilities resulting from a change of a kind referred to in section 58 (2)(a) or (b) or to 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).

Offence for noncompliance

57.(1) A credit provider must not –

(a)      enter into a guarantee that contravenes a requirement of this Division; or

(b)      otherwise contravene a requirement of this Division.

  1. A credit provider must not enter into a guarantee that is void or unenforceable, or that contains a provision that is void or unenforceable, because of this Division.

    Maximum penalty – 50 penalty units.

PART 4 – CHANGES TO OBLIGATIONS UNDER CREDIT CONTRACTS, MORTGAGES AND GUARANTEES

Division 1 – Unilateral changes by credit provider

Application of Division

58.(1) This Division applies only to changes made unilaterally by a credit provider under a credit contract, mortgage or guarantee.

  1. This Division does not apply to the following changes under a credit contract –

(a)a change to a new annual percentage rate payable under the contract (not being a rate determined by referring to a reference rate), if both the new rate and when it takes effect are ascertainable from the contract;

(b)an increase in the amount of repayments, if the increase occurs automatically, as specified by the contract, and both the amount of the increase and when it takes effect are ascertainable from the contract;

(c)an increase in the term of a credit contract, if the increase occurs only because of an increase in the annual percentage rate or rates payable under the contract;

(d)      a change made under Division 3.

  1. Nothing in this Division confers on a credit provider or a debtor any power or right to change the credit contract or its terms in addition to those conferred by the contract.

Interest rate changes

59.(1) Notification of interest rate changes. A credit provider must, not later than the day on which a change in the annual percentage rate or rates payable under a credit contract takes effect, give to the debtor written notice setting out –

(a)the new rate or rates or, if a rate is determined by referring to a reference rate, the new reference rate; and

(b)      any information required by the regulations.

Maximum penalty – 100 penalty units.

  1. Notification by publication. Notice under subsection (1) may be given by publishing the notice in a newspaper circulating throughout this jurisdiction. A credit provider that gives notice in accordance with this subsection must give to the debtor particulars of the change before or when the next statement of account is sent to the debtor after the change takes effect.

    Maximum penalty – 100 penalty units.

  2. Changes in reference rates. Subsection (1) does not apply to a change in a rate that is determined by referring to a reference rate if the changed reference rate is notified (whether or not by the credit provider) in a newspaper circulating throughout this jurisdiction not later than the date the change takes effect.

  3. Notification of other interest changes. A credit provider must, not later than 30 days before a change in the manner in which interest is calculated or applied under a credit contract (including a change in or abolition of any interest free period under the contract) takes effect, give to the debtor written notice setting out –

(a)      particulars of the change; and

(b)      any information required by the regulations.

Maximum penalty – 100 penalty units.

  1. Interest rate reductions. Subsections (1) and (4) do not apply to a change that reduces the obligations of the debtor under the credit contract.

  2. Application. This section applies whether or not the change is a change to the terms of the contract.

Repayment changes

60.(1) Notification of repayment changes. A credit provider must, not later than 30 days before a change in the amount or frequency or time for payment of, or a change in the method of calculation of, instalments or minimum repayments, under a credit contract takes effect, give to the debtor written notice setting out –

(a)      particulars of the change; and

(b)      any information required by the regulations.

Maximum penalty – 100 penalty units.

  1. Repayment reductions. Subsection (1) does not apply to a change that reduces the obligations of the debtor, or extends the time for payment, under the credit contract.  The credit provider must, however, give particulars of any such change before or when the next statement of account is sent to the debtor after the change takes effect.

    Maximum penalty – 100 penalty units.

  2. Application. This section applies whether or not the change is a change to the terms of the contract.

Credit fees and charges changes

61.(1) Notification of credit fees and charges changes. A credit provider must, not later than 30 days before a change in the amount of a credit fee or charge (including a new credit fee or charge), or a change in the frequency or time for payment of a credit fee or charge, under a credit contract takes effect, give to the debtor written notice setting out –

(a)      particulars of the change; and

(b)      any information required by the regulations.

Maximum penalty – 100 penalty units.

  1. Notification by publication. Notice relating to a change in the amount of a credit fee or charge (including a new credit fee or charge) may be given by publishing the notice in a newspaper circulating throughout this jurisdiction. A credit provider that gives notice in accordance with this subsection must give particulars of the change before or when the next statement of account is sent to the debtor after the change takes effect.

    Maximum penalty – 100 penalty units.

  2. Credit fee or charge reductions. Subsection (1) does not apply to a change that reduces the obligations of the debtor, or extends the time for payment, under the credit contract.  The credit provider must, however, give particulars of any such change before or when the next statement of account is sent to the debtor after the change takes effect.

    Maximum penalty – 100 penalty units.

  3. Application. This section applies whether or not the change is a change to the terms of the contract.

Changes to credit limits etc. in continuing credit contracts

62.(1) If a credit provider decides not to provide any further credit under a continuing credit contract, the credit contract continues in force in relation to any credit previously provided under the contract. However, this subsection does not prevent the termination of the contract if otherwise permitted by this Code or the contract.

  1. A credit provider must, unless the debtor is in default under the contract, as soon as practicable after deciding not to provide any further credit or to reduce the credit limit, give to the debtor a written notice to that effect if such notice has not previously been given.

Maximum penalty – 100 penalty units.

  1. A credit provider may increase the credit limit under a continuing credit contract only at the request of the debtor or with the written consent of the debtor.

Other unilateral changes by credit provider

63.(1) A credit provider must not exercise a power under a credit contract, mortgage or guarantee to unilaterally change its terms without giving to the other party, not less than 30 days before the change takes effect, written notice setting out –

(a)particulars of the change in the terms of the credit contract, mortgage or guarantee; and

(b)      any information required by the regulations.

Maximum penalty – 100 penalty units.

  1. Subsection (1) does not apply to a change that reduces the obligations of the debtor, or extends the time for payment, under the credit contract. The credit provider must, however, give particulars of any such change before or when the next statement of account is sent to the debtor after the change takes effect.

    Maximum penalty – 100 penalty units.

  2. This section does not apply to a change of which notice is required to be given under section 59, 60, 61 or 62 or which is referred to in section 62(3).

Prohibited increases in liabilities

64.(1) If the annual percentage rate under a credit contract is currently fixed for a specified term (including the whole term) of the contract, the contract cannot be changed unilaterally by a credit provider so as to increase, or change the method of calculation of a fee or charge so as to increase, a fee or charge –

(a)      payable by the debtor on early termination of the credit contract; or

(b)      payable on prepayment of an amount under the credit contract.

  1. The regulations may prescribe circumstances in which such a change is permitted.

Division 2 – Changes by agreement of parties

Changes by agreement

65.(1) If the parties under a credit contract, mortgage or guarantee agree to change its terms, the credit provider must, within 30 days after the date of the agreement, give to the other party under the agreement a written notice setting out –

(b)the remainder of this Code, and the application of the provision to other persons, subject matters or circumstances, is not affected.

  1. This clause applies to this Code in addition to, and without limiting the effect of, any provision of this Code.

Every section to be a substantive enactment

  1. Every section of this Code has effect as a substantive enactment without introductory words.

Material that is, and is not, part of this Code

4.(1)    The heading to a Part, Division or Subdivision into which this Code is divided is part of this Code.

  1. A Schedule to this Code is part of this Code.

  2. Punctuation in this Code is part of this Code.

  3. A heading to a section or subsection of this Code does not form part of this Code.

  4. Notes included in this Code (including footnotes and endnotes) do not form part of this Code.

References to particular Acts and to enactments

  1. In this Code –

(a)      an Act of this jurisdiction may be cited –

(i)       by its short title; or

(ii)      by reference to the year in which it was passed and its number; and

(b)      a Commonwealth Act may be cited –

(i)       by its short title; or

(ii)in another way sufficient in a Commonwealth Act for the citation of such an Act;

together with a reference to the Commonwealth; and

(c)      an Act of another jurisdiction may be cited –

(i)       by its short title; or

(ii)in another way sufficient in an Act of the jurisdiction for the citation of such an Act;

together with a reference to the jurisdiction.

References taken to be included in Act or Code citation etc.

6.(1)    A reference in this Code to an Act includes a reference to –

(a)the Act as originally enacted, and as amended from time to time since its original enactment; and

(b)if the Act has been repealed and re-enacted (with or without modification) since the enactment of the reference – the Act as re-enacted, and as amended from time to time since its re-enactment.

  1. A reference in this Code to a provision of this Code or of an Act includes a reference to –

(a)the provision as originally enacted, and as amended from time to time since its original enactment; and

(b)if the provision has been omitted and re-enacted (with or without modification) since the enactment of the reference – the provision as re-enacted, and as amended from time to time since its re-enactment.

  1. Subclauses (1) and (2) apply to a reference in this Code to a law of the Commonwealth or another jurisdiction as they apply to a reference in this Code to an Act and to a provision of an Act.

Interpretation best achieving Code’s purpose

7.(1)    In the interpretation of a provision of this Code, the interpretation that will best achieve the purpose or object of this Code is to be preferred to any other interpretation.

  1. Subclause (1) applies whether or not the purpose is expressly stated in this Code.

Use of extrinsic material in interpretation

8.(1)    In this clause –

“extrinsic material” means relevant material not forming part of this Code, including, for example –

(a)material that is set out in the document containing the text of this Code as printed by the Government Printer of Queensland; and

(b)a relevant report of a Royal Commission, Law Reform Commission, commission or committee of inquiry, or a similar body, that was laid before the Legislative Assembly of Queensland before the provision concerned was enacted; and

(c)a relevant report of a committee of the Legislative Assembly of Queensland that was made to the Legislative Assembly of Queensland before the provision was enacted; and

(d)a treaty or other international agreement that is mentioned in this Code; and

(e)an explanatory note or memorandum relating to the Bill that contained the provision, or any relevant document, that was laid before, or given to the members of, the Legislative Assembly of Queensland by the member bringing in the Bill before the provision was enacted; and

(f)the speech made to the Legislative Assembly of Queensland by the member in moving a motion that the Bill be read a second time; and

(g)material in the Votes and Proceedings of the Legislative Assembly of Queensland or in any official record of debates in the Legislative Assembly of Queensland; and

(h)a document that is declared by this Code to be a relevant document for the purposes of this clause;

“ordinary meaning” means the ordinary meaning conveyed by a provision having regard to its context in this Code and to the purpose of this Code.

  1. Subject to subclause (3), in the interpretation of a provision of this Code, consideration may be given to extrinsic material capable of assisting in the interpretation –

(a)if the provision is ambiguous or obscure – to provide an interpretation of it; or

(b)if the ordinary meaning of the provision leads to a result that is manifestly absurd or is unreasonable – to provide an interpretation that avoids such a result; or

(c)in any other case – to confirm the interpretation conveyed by the ordinary meaning of the provision.

  1. In determining whether consideration should be given to extrinsic material, and in determining the weight to be given to extrinsic material, regard is to be had to –

(a)the desirability of a provision being interpreted as having its ordinary meaning; and

(b)the undesirability of prolonging proceedings without compensating advantage; and

(c)      other relevant matters.

Effect of change of drafting practice and use of examples

  1. If –

(a)      a provision of this Code expresses an idea in particular words; and

(b)a provision enacted later appears to express the same idea in different words for the purpose of implementing a different legislative drafting practice, including, for example –

(i)       the use of a clearer or simpler style; or

(ii)      the use of gender-neutral language;

the ideas must not be taken to be different merely because different words are used.

Use of examples

  1. If this Code includes an example of the operation of a provision –

(a)      the example is not exhaustive; and

(b)the example does not limit, but may extend, the meaning of the provision; and

(c)the example and the provision are to be read in the context of each other and the other provisions of this Code, but, if the example and the provision so read are inconsistent, the provision prevails.

Compliance with forms

11.(1)  If a form is prescribed or approved by or for the purpose of this Code, strict compliance with the form is not necessary and substantial compliance is sufficient.

  1. If a form prescribed or approved by or for the purpose of this Code requires –

(a)      the form to be completed in a specified way; or

(b)specified information or documents to be included in, attached to or given with the form; or

(c)the form, or information or documents included in, attached to or given with the form, to be verified in a specified way;

the form is not properly completed unless the requirement is complied with.

PART 3 – TERMS AND REFERENCES

Definitions

12.(1)  In this Code –

“Act” means an Act of the Legislature of this jurisdiction.

“adult” means an individual who is 18 or more.

“affidavit”, in relation to a person allowed by law to affirm, declare or promise, includes affirmation, declaration and promise.

“amend” includes –

(a)omit or omit and substitute; or

(b)alter or vary; or

(c)amend by implication.

“appoint” includes re-appoint.

“Australia” means the Commonwealth of Australia but, when used in a geographical sense, does not include an external Territory.

“business day” means a day that is not –

(a)a Saturday or Sunday; or

(b)a public holiday, special holiday or bank holiday in the place in which any relevant act is to be or may be done.

“calendar month” means a period starting at the beginning of any day of 1 of the 12 named months and ending –

(a)immediately before the beginning of the corresponding day of the next named month; or

(b)if there is no such corresponding day – at the end of the next named month.

“calendar year” means a period of 12 months beginning on 1 January.

“commencement”, in relation to this Code or an Act or a provision of this Code or an Act, means the time at which this Code, the Act or provision comes into operation.

“Commonwealth” means the Commonwealth of Australia but, when used in a geographical sense, does not include an external Territory.

“confer”, in relation to a function, includes impose.

“contravene” includes fail to comply with.

“country” includes –

(a)      a federation; or

(b)      a state, province or other part of a federation.

“date of assent”, in relation to an Act, means the day on which the Act receives the Royal Assent.

“definition” means a provision of this Code (however expressed) that –

(a)gives a meaning to a word or expression; or

(b)limits or extends the meaning of a word or expression.

“document” includes –

(a)any paper or other material on which there is writing; or

(b)any paper or other material on which there are marks, figures, symbols or perforations having a meaning for a person qualified to interpret them; or

(c)any disc, tape or other article or any material from which sounds, images, writings or messages are capable of being reproduced (with or without the aid of another article or device).

“estate” includes easement, charge, right, title, claim, demand, lien or encumbrance, whether at law or in equity.

“expire” includes lapse or otherwise cease to have effect.

“external Territory” means a Territory, other than an internal Territory, for the government of which as a Territory provision is made by a Commonwealth Act.

“fail” includes refuse.

“financial year” means a period of 12 months beginning on 1 July.

“foreign country” means a country (whether or not an independent sovereign State) outside Australia and the external Territories.

“function” includes duty.

“Gazette” means the Government Gazette of this jurisdiction.

“Gazette notice” means notice published in the Gazette.

“gazetted” means published in the Gazette.

“Government Printer” means the Government Printer of this jurisdiction, and includes any other person authorised by the Government of this jurisdiction to print an Act or instrument.

“individual” means a natural person.

“insert”, in relation to a provision of this Code, includes substitute.

“instrument” includes a statutory instrument.

“interest”, in relation to land or other property, means –

(a)      a legal or equitable estate in the land or other property; or

(b)a right, power or privilege over, or in relation to, the land or other property.

“internal Territory” means the Australian Capital Territory, the Jervis Bay Territory or the Northern Territory.

“Jervis Bay Territory” means the Territory mentioned in the Jervis Bay Territory Acceptance Act 1915 (Cwlth).

“make” includes issue or grant.

“minor” means an individual who is under 18.

“modification” includes addition, omission or substitution.

“month” means a calendar month.

“named month” means 1 of the 12 months of the year.

“Northern Territory” means the Northern Territory of Australia.

“number” means –

(a)      a number expressed in figures or words; or

(b)      a letter; or

(c)      a combination of a number so expressed and a letter.

“oath”, in relation to a person allowed by law to affirm, declare or promise, includes affirmation, declaration or promise.

“office” includes position.

“omit”, in relation to a provision of this Code or an Act, includes repeal.

“party” includes an individual or a body politic or corporate.

“penalty” includes forfeiture or punishment.

“person” includes an individual or a body politic or corporate.

“power” includes authority.

“prescribed” means prescribed by, or by regulations made or in force for the purposes of or under, this Code.

“printed” includes typewritten, lithographed or reproduced by any mechanical means.

“proceeding” means a legal or other action or proceeding.

“property” means any legal or equitable estate or interest (whether present or future, vested or contingent, or tangible or intangible) in real or personal property of any description (including money), and includes things in action.

“provision”, in relation to this Code or an Act, means words or other matter that form or forms part of this Code or the Act, and includes –

(a)a Chapter, Part, Division, Subdivision, section, subsection, paragraph, subparagraph, sub-subparagraph or Schedule of or to this Code or the Act; or

(b)a section, clause, subclause, item, column, table or form of or in a Schedule to this Code or the Act; or

(c)      the long title and any preamble to the Act.

“record” includes information stored or recorded by means of a computer.

“repeal” includes –

(a)      revoke or rescind; or

(b)      repeal by implication; or

(c)      abrogate or limit the effect of this Code or instrument concerned; or

(d)exclude from, or include in, the application of this Code or instrument concerned any person, subject matter or circumstance.

“sign” includes the affixing of a seal or the making of a mark.

“statutory declaration” means a declaration made under an Act, or under a Commonwealth Act or an Act of another jurisdiction, that authorises a declaration to be made otherwise than in the course of a judicial proceeding.

“statutory instrument” means an instrument (including a regulation) made or in force under or for the purposes of this Code, and includes an instrument made or in force under any such instrument.

“swear”, in relation to a person allowed by law to affirm, declare or promise, includes affirm, declare or promise.

“word” includes any symbol, figure or drawing.

“writing” includes any mode of representing or reproducing words in a visible form.

  1. In a statutory instrument –

“the Code” means this Code.

Provisions relating to defined terms and gender and number

13.(1)  If this Code defines a word or expression, other parts of speech and grammatical forms of the word or expression have corresponding meanings.

  1. Definitions in or applicable to this Code apply except so far as the context or subject matter otherwise indicates or requires.

  2. In this Code, words indicating a gender include each other gender.

  3. In this Code –

(a)      words in the singular include the plural; and

(b)      words in the plural include the singular.

Meaning of may and must etc.

14.(1)  In this Code, the word “may”, or a similar word or expression, used in relation to a power indicates that the power may be exercised or not exercised, at discretion.

  1. In this Code, the word “must”, or a similar word or expression, used in relation to a power indicates that the power is required to be exercised.

  2. This clause has effect despite any rule of construction to the contrary.

Words and expressions used in statutory instruments

15.(1)  Words and expressions used in a statutory instrument have the same meanings as they have, from time to time, in this Code, or relevant provisions of this Code, under or for the purposes of which the instrument is made or in force.

  1. This clause has effect in relation to an instrument except so far as the contrary intention appears in the instrument.

Effect of express references to bodies corporate and individuals

  1. In this Code, a reference to a person generally (whether the expression “person”, “party”, “someone”, “anyone”, “no-one”, “one”, “another” or “whoever” or another expression is used) –

(a)does not exclude a reference to a body corporate or an individual merely because elsewhere in this Code there is particular reference to a body corporate (however expressed); and

(b)does not exclude a reference to an individual or a body corporate merely because elsewhere in this Code there is particular reference to an individual (however expressed).

Production of records kept in computers etc.

  1. If a person who keeps a record of information by means of a mechanical, electronic or other device is required by or under this Code –

(a)to produce the information or a document containing the information to a court, tribunal or person; or

(b)to make a document containing the information available for inspection by a court, tribunal or person;

then, unless the court, tribunal or person otherwise directs –

(c)the requirement obliges the person to produce or make available for inspection, as the case may be, a document that reproduces the information in a form capable of being understood by the court, tribunal or person; and

(d)the production to the court, tribunal or person of the document in that form complies with the requirement.

References to this jurisdiction to be implied

  1. In this Code –

(a)a reference to an officer, office or statutory body is a reference to such an officer, office or statutory body in and for this jurisdiction; and

(b)a reference to a locality or other matter or thing is a reference to such a locality or other matter or thing in and of this jurisdiction.

References to officers and holders of offices

  1. In this Code, a reference to a particular officer, or to the holder of a particular office, includes a reference to the person for the time being occupying or acting in the office concerned.

Reference to certain provisions of Code

  1. If a provision of this Code refers –

(a)to a Part, section or Schedule by a number and without reference to this Code – the reference is a reference to the Part, section or Schedule, designated by the number, of or to this Code; or

(b)to a Schedule without reference to it by a number and without reference to this Code – the reference, if there is only 1 Schedule to this Code, is a reference to the Schedule; or

(c)to a Division, Subdivision, subsection, paragraph, subparagraph, sub-subparagraph, clause, subclause, item, column, table or form by a number and without reference to this Code – the reference is a reference to –

(i)       the Division, designated by the number, of the Part in which the reference occurs; and

(ii)the Subdivision, designated by the number, of the Division in which the reference occurs; and

(iii)the subsection, designated by the number, of the section in which the reference occurs; and

(iv)the paragraph, designated by the number, of the section, subsection, Schedule or other provision in which the reference occurs; and

(v)the paragraph, designated by the number, of the clause, subclause, item, column, table or form of or in the Schedule in which the reference occurs; and

(vi)the subparagraph, designated by the number, of the paragraph in which the reference occurs; and

(vii)the sub-subparagraph, designated by the number, of the subparagraph in which the reference occurs; and

(viii)the section, clause, subclause, item, column, table or form, designated by the number, of or in the Schedule in which the reference occurs;

as the case requires.

Reference to provisions of this Code or an Act is inclusive

  1. In this Code, a reference to a portion of this Code or an Act includes –

(a)a reference to the Chapter, Part, Division, Subdivision, section, subsection or other provision of this Code or the Act referred to that forms the beginning of the portion; and

(b)a reference to the Chapter, Part, Division, Subdivision, section, subsection or other provision of this Code or the Act referred to that forms the end of the portion.

Example –

A reference to ‘sections 5 to 9’ includes both section 5 and section 9. It is not necessary to refer to ‘sections 5 to 9 (both inclusive)’ to ensure that the reference is given an inclusive interpretation.

PART 4 – FUNCTIONS AND POWERS

Performance of statutory functions

22.(1)  If this Code confers a function or power on a person or body, the function may be performed, or the power may be exercised, from time to time as occasion requires.

  1. If this Code confers a function or power on a particular officer or the holder of a particular office, the function may be performed, or the power may be exercised, by the person for the time being occupying or acting in the office concerned.

  1. If this Code confers a function or power on a body (whether or not incorporated), the performance of the function, or the exercise of the power, is not affected merely because of vacancies in the membership of the body.

Power to make instrument or decision includes power to amend or repeal

  1. If this Code authorises or requires the making of an instrument or decision –

(a)the power includes power to amend or repeal the instrument or decision; and

(b)the power to amend or repeal the instrument or decision is exercisable in the same way, and subject to the same conditions, as the power to make the instrument or decision.

Matters for which statutory instruments may make provision

24.(1)  If this Code authorises or requires the making of a statutory instrument in relation to a matter, a statutory instrument made under this Code may make provision for the matter by applying, adopting or incorporating (with or without modification) the provisions of –

(a)      an Act or statutory instrument; or

(b)      another document (whether of the same or a different kind);

as in force at a particular time or as in force from time to time.

  1. If a statutory instrument applies, adopts or incorporates the provisions of a document, the statutory instrument applies, adopts or incorporates the provisions as in force from time to time, unless the statutory instrument otherwise expressly provides.

  2. A statutory instrument may –

(a)apply generally throughout this jurisdiction or be limited in its application to a particular part of this jurisdiction; or

(b)apply generally to all persons, matters or things or be limited in its application to –

(i)       particular persons, matters or things; or

(ii)      particular classes of persons, matters or things; or

(c)otherwise apply generally or be limited in its application by reference to specified exceptions or factors.

  1. A statutory instrument may –

(a)      apply differently according to different specified factors; or

(b)      otherwise make different provision in relation to –

(i)       different persons, matters or things; or

(ii)      different classes of persons, matters or things.

  1. A statutory instrument may authorise a matter or thing to be from time to time determined, applied or regulated by a specified person or body.

  2. If this Code authorises or requires a matter to be regulated by statutory instrument, the power may be exercised by prohibiting by statutory instrument the matter or any aspect of the matter.

  3. If this Code authorises or requires provision to be made with respect to a matter by statutory instrument, a statutory instrument made under this Code may make provision with respect to a particular aspect of the matter despite the fact that provision is made by this Code in relation to another aspect of the matter or in relation to another matter.

  4. A statutory instrument may provide for the review of, or a right of appeal against, a decision made under the statutory instrument, or this Code, and may, for that purpose, confer jurisdiction on any court, tribunal, person or body.

  5. A statutory instrument may require a form prescribed by or under the statutory instrument, or information or documents included in, attached to or given with the form, to be verified by statutory declaration.

Presumption of validity and power to make

25.(1)  All conditions and preliminary steps required for the making of a statutory instrument are presumed to have been satisfied and performed in the absence of evidence to the contrary.

  1. A statutory instrument is taken to be made under all powers under which it may be made, even though it purports to be made under this Code or a particular provision of this Code.

Appointments may be made by name or office

26.(1)  If this Code authorises or requires a person or body –

(a)      to appoint a person to an office; or

(b)      to appoint a person or body to exercise a power; or

(c)      to appoint a person or body to do another thing;

the person or body may make the appointment by –

(d)      appointing a person or body by name; or

(e)appointing a particular officer, or the holder of a particular office, by reference to the title of the office concerned.

  1. An appointment of a particular officer, or the holder of a particular office, is taken to be the appointment of the person for the time being occupying or acting in the office concerned.

Acting appointments

27.(1)  If this Code authorises a person or body to appoint a person to act in an office, the person or body may, in accordance with this Code, appoint –

(a)      a person by name; or

(b)a particular officer, or the holder of a particular office, by reference to the title of the office concerned;

to act in the office.

  1. The appointment may be expressed to have effect only in the circumstances specified in the instrument of appointment.

  2. The appointer may –

(a)determine the terms and conditions of the appointment, including remuneration and allowances; and

(b)      terminate the appointment at any time.

  1. The appointment, or the termination of the appointment, must be in, or evidenced by, writing signed by the appointer.

  2. The appointee must not act for more than 1 year during a vacancy in the office.

  3. If the appointee is acting in the office otherwise than because of a vacancy in the office and the office becomes vacant, then, subject to subclause (2), the appointee may continue to act until –

(a)      the appointer otherwise directs; or

(b)      the vacancy is filled; or

(c)      the end of a year from the day of the vacancy;

whichever happens first.

  1. The appointment ceases to have effect if the appointee resigns by writing signed and delivered to the appointer.

  2. While the appointee is acting in the office –

(a)the appointee has all the powers and functions of the holder of the office; and

(b)this Code and other laws apply to the appointee as if the appointee were the holder of the office.

  1. Anything done by or in relation to a person purporting to act in the office is not invalid merely because –

(a)      the occasion for the appointment had not arisen; or

(b)      the appointment had ceased to have effect; or

(c)      the occasion for the person to act had not arisen or had ceased.

  1. If this Code authorises the appointer to appoint a person to act during a vacancy in the office, an appointment to act in the office may be made by the appointer whether or not an appointment has previously been made to the office.

Powers of appointment imply certain incidental powers

28.(1)  If this Code authorises or requires a person or body to appoint a person to an office –

(a)      the power may be exercised from time to time as occasion requires; and

(b)      the power includes –

(i)       power to remove or suspend, at any time, a person appointed to the office; and

(ii)power to appoint another person to act in the office if a person appointed to the office is removed or suspended; and

(iii)power to reinstate or reappoint a person removed or suspended; and

(iv)power to appoint a person to act in the office if it is vacant (whether or not the office has ever been filled); and

(v)power to appoint a person to act in the office if the person appointed to the office is absent or is unable to discharge the functions of the office (whether because of illness or otherwise).

  1. The power to remove or suspend a person under subclause (1)(b) may be exercised even if this Code provides that the holder of the office to which the person was appointed is to hold office for a specified period.

  2. The power to make an appointment under subclause (1)(b) may be exercised from time to time as occasion requires.

  3. An appointment under subclause (1)(b) may be expressed to have effect only in the circumstances specified in the instrument of appointment.

Exercise of powers between enactment and commencement

29.(1)  If a provision of this Code (the “empowering provision”) that does not commence on its enactment would, had it commenced, confer a power –

(a)      to make an appointment; or

(b)to make a statutory instrument of a legislative or administrative character; or

(c)      to do another thing;

then–

(d)      the power may be exercised; and

(e)anything may be done for the purpose of enabling the exercise of the power or of bringing the appointment, instrument or other thing into effect;

before the empowering provision commences.

  1. If a provision of a Queensland Act (the “empowering provision”) that does not commence on its enactment would, had it commenced, amend a provision of this Code so that it would confer a power –

(a)to make an appointment; or

(b)to make a statutory instrument of a legislative or administrative character; or

(c)      to do another thing;

then –

(d)      the power may be exercised; and

(e)anything may be done for the purpose of enabling the exercise of the power or of bringing the appointment, instrument or other thing into effect;

before the empowering provision commences.

  1. If –

(a)this Code has commenced and confers a power to make a statutory instrument (the “basic instrument-making power”); and

(b)a provision of a Queensland Act that does not commence on its enactment would, had it commenced, amend this Code so as to confer additional power to make a statutory instrument (the “additional instrument-making power”);

then –

(c)the basic instrument-making power and the additional instrument-making power may be exercised by making a single instrument; and

(d)any provision of the instrument that required an exercise of the additional instrument-making power is to be treated as made under subclause (2).

  1. If an instrument, or a provision of an instrument, is made under subclause (1) or (2) that is necessary for the purpose of –

(a)      enabling the exercise of a power mentioned in the subclause; or

(b)bringing an appointment, instrument or other thing made or done under such a power into effect;

the instrument or provision takes effect –

(c)on the making of the instrument; or

(d)on such later day (if any) on which, or at such later time (if any) at which, the instrument or provision is expressed to take effect.

  1. If –

(a)an appointment is made under subclause (1) or (2); or

(b)an instrument, or a provision of an instrument, made under subclause (1) or (2) is not necessary for a purpose mentioned in subclause (4);

the appointment, instrument or provision takes effect –

(c)      on the commencement of the relevant empowering provision; or

(d)on such later day (if any) on which, or at such later time (if any) at which, the appointment, instrument or provision is expressed to take effect.

  1. Anything done under subclause (1) or (2) does not confer a right, or impose a liability, on a person before the relevant empowering provision commences.

  2. After the enactment of a provision mentioned in subclause (2) but before the provision’s commencement, this clause applies as if the references in subclauses (2) and (5) to the commencement of the empowering provision were references to the commencement of the provision mentioned in subclause (2) as amended by the empowering provision.

  3. In the application of this clause to a statutory instrument, a reference to the enactment of the instrument is a reference to the making of the instrument.

PART 5 – DISTANCE, TIME AND AGE

Matters relating to distance, time and age

30.(1)  In the measurement of distance for the purposes of this Code, the distance is to be measured along the shortest road ordinarily used for travelling.

  1. If a period beginning on a given day, act or event is provided or allowed for a purpose by this Code, the period is to be calculated by excluding the day, or the day of the act or event, and –

(a)if the period is expressed to be a specified number of clear days or at least a specified number of days – by excluding the day on which the purpose is to be fulfilled; and

(b)in any other case – by including the day on which the purpose is to be fulfilled.

  1. If the last day of a period provided or allowed by this Code for doing anything is not a business day in the place in which the thing is to be or may be done, the thing may be done on the next business day in the place.

  2. If the last day of a period provided or allowed by this Code for the filing or registration of a document is a day on which the office is closed where the filing or registration is to be or may be done, the document may be filed or registered at the office on the next day that the office is open.

  3. If no time is provided or allowed for doing anything, the thing is to be done as soon as possible, and as often as the prescribed occasion happens.

  4. If, in this Code, there is a reference to time, the reference is, in relation to the doing of anything in a jurisdiction, a reference to the legal time in the jurisdiction.

  5. For the purposes of this Code, a person attains an age in years at the beginning of the person’s birthday for the age.

PART 6 – EFFECT OF REPEAL, AMENDMENT OR EXPIRATION

Time of Code ceasing to have effect

  1. If a provision of this Code is expressed –

(a)      to expire on a specified day; or

(b)to remain or continue in force, or otherwise have effect, until a specified day;

this provision has effect until the last moment of the specified day.

Repealed Code provisions not revived

  1. If a provision of this Code is repealed or amended by a Queensland Act, or a provision of a Queensland Act, the provision is not revived merely because the Queensland Act or the provision of the Queensland Act –

(a)      is later repealed or amended; or

(b)      later expires.

Saving of operation of repealed Code provisions

33.(1)  The repeal, amendment or expiry of a provision of this Code does not –

(a)revive anything not in force or existing at the time the repeal, amendment or expiry takes effect; or

(b)affect the previous operation of the provision or anything suffered, done or begun under the provision; or

(c)affect a right, privilege or liability acquired, accrued or incurred under the provision; or

(d)affect a penalty incurred in relation to an offence arising under the provision; or

(e)affect an investigation, proceeding or remedy in relation to such a right, privilege, liability or penalty.

  1. Any such penalty may be imposed and enforced, and any such investigation, proceeding or remedy may be begun, continued or enforced, as if the provision had not been repealed or amended or had not expired.

Continuance of repealed provisions

  1. If a Queensland Act repeals some provisions of this Code and enacts new provisions in substitution for the repealed provisions, the repealed provisions continue in force until the new provisions commence.

Code and amending Acts to be read as one

  1. This Code and all Queensland Acts amending this Code are to be read as one.

PART 7 – INSTRUMENTS UNDER CODE

Schedule applies to statutory instruments

36.(1)  This Schedule applies to a statutory instrument, and to things that may be done or are required to be done under a statutory instrument, in the same way as it applies to this Code, and things that may be done or are required to be done under this Code, except so far as the context or subject matter otherwise indicates or requires.

  1. The fact that a provision of this Schedule refers to this Code and not also to a statutory instrument does not, by itself, indicate that the provision is intended to apply only to this Code.

PART 8 – APPLICATION TO COASTAL SEA

Application

  1. This Code has effect in and relation to the coastal sea of this jurisdiction as if that coastal sea were part of this jurisdiction.

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Notes

  1. The Consumer Credit (Northern Territory) Act comprises the Consumer Credit (Northern Territory) Act 1995 and amendments made by other legislation, the details of which are specified in the following table:

Act

Number and
year

Date of assent by Administrator

Date of commencement

Consumer Credit (Northern Territory) Act 1995

No. 38, 1995

12 Sept 1995

1 Nov 1996

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